http://www.abanet.org/journal/redesign/j28food.html
FAST-FOOD SUIT BACK ON THE MENU
Appeals Court Reinstates Class Action Against McDonald’s
BY MARTHA NEIL
A lawsuit claiming that eating at McDonald’s made two children obese may go ahead with discovery, the 2nd U.S. Circuit Court of Appeals decided Wednesday.
The New York City-based appellate court reinstated the class action against the Oak Brook, Ill.-based restaurant chain, saying the complaint pleaded a valid claim sufficient to permit discovery.
Last year, a district court granted McDonald’s a motion to dismiss the case. But Wednesday’s ruling by Judge Jed Rakoff said the lower court assumed facts that were not yet in evidence in order to find a lack of causal connection between the suit and the claimed injury.
Pelman v. McDonald’s Corp., No. 03-9010.
The class action claims the company violated state consumer protection law by providing misleading information about the nutritional value of its menu offerings.
Plaintiffs’ attorney Samuel Hirsch of New York City says he plans to focus discovery on "the ingredients, the advertisements, the type of representations that they made."
In dismissing the case, the district court said key questions were not addressed in the complaint: "What else did the plaintiffs eat? How much did they exercise? Is there a family history of the diseases which are alleged to have been caused by McDonald’s products?"
However, the 2nd Circuit held those questions to be "the sort of information that is appropriately the subject of discovery, rather than what is required to satisfy the limited pleading requirements" of a motion to dismiss for failing to state a claim.
The complaint alleges that the two minors named as plaintiffs—their parents brought suit on their behalf—were led to believe by McDonald’s advertising that the chain’s menu offerings "were healthy and wholesome, not as detrimental to their health as medical and scientific studies have shown."
Relying on these misrepresentations, the complaint states, the plaintiffs ate at McDonald’s three to five times weekly from 1987 through 2002. As a result, they developed "obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects," the complaint alleges.
Paris R. Baldacci, a clinical professor at Yeshiva University's Benjamin N. Cardozo School of Law in New York City, says the 2nd Circuit decision "wasn't surprising at all from a New York practice and pleading perspective."
New York law is applied by the federal court because this is a diversity case, Baldacci says, and under the state’s liberal pleading standards, a simple "I ate food that made me ill" would provide the required notice of the transaction at issue.
McDonald’s corporate headquarters did not respond to a request for comment, but said in a written statement: "Common sense tells you this particular case makes no sense. Today’s ruling, which is strictly procedural, simply delays the inevitable conclusion that this case is without merit."
Critics have pointed to the
Pelman suit as another example of a society in which individuals increasingly seek to hold others responsible for their own bad lifestyle choices.
But Hirsch says McDonald’s shouldn’t be allowed to market food to young children that the company knows to be bad for them.
"I think that McDonald’s has to downplay the decision, but they know full well that it’s a lot more significant than they’re prepared to admit," Hirsch says.
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I guess this is actually going to survive above water for a little longer.... And what ever happened to "not eating what's bad for you" defense?
RUgreek
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