suit against mcdeathburger may not be over yet...

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Reuters

 

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USA

 

McDonald's obesity suit may be only the first nibble

 

NEW YORK (Reuters) - A U.S. judge's dismissal of a lawsuit

blaming McDonald's for obesity in children is no cause for

celebration by the fast-food king, according to legal experts.

 

" It wasn't as simple as one, two, three, " said Victor

Schwartz, head of the public policy group of the law firm Shook,

Hardy and Bacon, and general counsel of the American Tort Reform

Association.

 

Judge Robert Sweet, of the U.S. District Court of the

Southern District of New York, dismissed the suit last week,

saying it failed to show that patrons at the world's largest

fast-food chain were unaware that eating too much McDonald's fare

could be unhealthy.

 

But Sweet left open the door for plaintiffs -- including a

400-pound teenager who said he eats at McDonald's every day -- to

refile the case, with guidance on how the suit might be

strengthened.

 

" We remain confident, " McDonald's spokeswoman Lisa Howard

said. " And we believe the facts will prevail. Any effort to

resurrect this frivolous lawsuit will ultimately end up being

rejected by the court. "

 

New York attorney Samuel Hirsch, whose firm represented the

young plaintiffs, last summer filed suit against four major fast

food chains on behalf of 5-foot-10-inch, 272-pound Caesar Barber,

who claimed they contributed to his obesity, heart disease and

diabetes. Indeed, with obesity and its related illnesses at

near-epidemic levels in the United States, some lawyers say

super-size lawsuits -- like those citing asbestos, tobacco or

firearms -- may be in the offing.

 

NOT OVER YET Several legal watchers said Sweet's decision

suggests that plaintiffs could pursue the negligence charge by

concentrating on the way McDonald's processes some of its

products -- such as Chicken McNuggets or fries.

 

" I think what the judge was doing was tipping his hand and

saying this argument could have some merit, " said Albert Yoon,

assistant professor at Northwestern University School of Law.

 

" For instance, Chicken McNuggets, rather than being merely

chicken fried in a pan, are a McFrankenstein creation of various

elements not utilised by the home cook, " Sweet wrote in his

opinion.

 

" If plaintiffs were able to flesh out this argument in an

amended complaint, " the judge wrote, " it may establish that the

dangers of McDonald's products were not commonly well known and

thus that McDonald's had a duty toward its customers. "

 

" We can go in with the chicken, the french fries, " said John

Banzhaf III, a George Washington University Law professor who has

been working since last year on a connection between obesity and

the litigation.

 

" I'm pretty much sure we can dig up others ... he's given us

a road map on possible addiction, " said Banzhaf, who advocates

putting a " fat tax " on food that could be used to offset the cost

of health problems society is likely to incur.

 

As a judge, Sweet has often stated his belief that

individuals are responsible for their own actions when they have

sufficient information to make those decisions -- even when it

comes to drugs.

 

Banzhaf, in an effort to coordinate lawsuits involving the

food industry and obesity, last year hosted a meeting with public

health and legal experts, including Professor Richard Daynard,

chairman of the Tobacco Products Liability Project at Boston's

Northeastern University.

 

Hirsch (Dusseldorf: 606510.D - news) , who attended a

subsequent meeting, then put aside the action involving Barber

and brought suit against McDonald's on behalf of the children.

Hirsch, whose office said he was on vacation, was not available

for comment.

 

" That eliminated, to a large extent, this argument that

they're adults and know what they are doing, " Banzhaf said.

 

Banzhaf said he and his group also plan to target schools

that have allowed McDonald's and other fast-food providers and

soda manufacturers into their cafeterias in return for some of

the proceeds.

 

THE PEOPLE WILL DECIDE Whatever the fate of the most recent

case, some say fast food and other food manufacturers must

proceed with caution, as much of their future depends on the

public's opinion.

 

" The law tends to follow society in developing and

identifying the most important issues of the day, " said William

McKenna, a partner in the litigation department of Foley and

Lardner.

 

It took 25 years before asbestos and lead paint liability

cases, which involve some of the costliest class-action suits in

history, gained their first victories, McKenna said.

 

The first 55 suits against tobacco-product manufacturers were

dismissed, Schwartz said.

 

However, similar cases, such as those seeking to link the

responsibility of gun manufacturers and violence, are yet to be

successful in courts, McKenna said.

 

One of the greatest threats facing the food industry is from

the state attorneys general, who four years ago won a $206

billion settlement from tobacco companies for smoking-related

health-care costs.

 

Such suits would remove two huge stumbling blocks that appear

when individuals sue: that the person knew that eating too much

fast-food could result in health problems and that the food

itself was a direct cause of such problems.

 

" I do not believe an attorney general will bring such a suit

now, because the industry is too popular, " Schwartz said.

 

He said fast-food restaurants " do the same behavioural thing

I would have done if I had lost the case, " including providing

ingredient and content information and educational programs on

healthy eating.

 

" If they are perceived by the public of being indifferent to

health concerns, " he said, " some actions could arrive in the

future. "

 

Americans are said to spend more than $100 billion on fast

food each year.