030164 McDonald's Suit May Be Only First Nibble

New York - A federal judge's dismissal of a lawsuit blaming McDonald's Corp. for obesity in children is no cause for celebration by the fast-food king, legal experts say.

"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 US 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 utilized 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 Northeastern University in Boston, Massachusetts.

Hirsch, 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.

And 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 pointed out.

One of the greatest threats facing the food industry is from the state attorneys general, who 4 years ago won a $206 billion settlement from tobacco companies for smoking- related healthcare 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 behavioral 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 (as) 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.

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