BURGERS, NUGGETS AND FRIES...OH MY!
The Recent Suit By An Obese Man Against Fast Food Restaurants

Recently, Caesar Barber, a Bronx resident, and his attorney, Samuel Hirsch, made national headlines with their class action lawsuit against fast food restaurants. Obviously, this case is an offshoot of the wildly successful efforts of personal injury lawsuits against the tobacco companies.

The case has drawn jeers from columnists, talk radio hosts, and late-night television personalities. Yet surprisingly, it has a much more solid legal basis than commentators have realized. In fact, the case against Big Tobacco almost seems weak in comparison to the case against Big Burger.

According to the Surgeon General, an estimated 34% of U.S. adults are overweight and an additional 27% are obese. In other words, 3 out of every 5 American adults have some form of weight problem.

Moreover, 1 out of every 4 Americans has a serious weight problem. As a result, the Surgeon General estimates that as many as 300,000 deaths each year may be attributable to obesity. In short, many of us seem to be digging early graves with our teeth.

In addition to the increased death rate, being overweight or obese is known to exacerbate many chronic conditions, such as hypertension, diabetes, and certain cancers. This brings the total estimated cost of obesity to $117 billion per year. And this does not include the psychic costs of social stigma, discrimination, and low self-esteem.

Of course, these statistics do not come as a surprise to anyone who studies national demographics or the audience of The Jerry Springer Show. In fact, considering the fast-paced lives that many of us lead, it's almost surprising that the numbers aren't even larger.

And, of course, with any problem of this size, there must be a villain; preferably one with billions of dollars in assets. In this case, Big Nugget seems the obvious choice.

Where's the Beef?: Is This A Legal Case, Or Just a Lengthy Whine?

In his complaint, Barber brings several claims. One is for products liability. He alleges that the fast food companies have distributed a product that causes obesity and its related health problems, and therefore should be liable.

Can this theory possibly work? Under products liability law, the defendant who places a defective product in the stream of commerce is liable for the damages it causes. But what counts, under the law, as a defective product?

Anyone who ever purchased an American automobile during the 1970s is familiar with the concept. In this case, the plaintiff is claiming that the high levels of fat, salt, sugar and cholesterol in fast food makes it defective. In the tobacco cases, the plaintiffs made a similar claim that the tar and carcinogens in cigarettes made them defective.

Another of the plaintiff's claims is that the defendants failed to adequately warn customers of the "defect" in their product. That leads to a few additional questions: When must a warning be given, and what must it say?

As a general rule, manufacturers and suppliers must warn consumers of foreseeable dangers in using their products. For instance, manufacturers often use the skull and cross bone symbol to indicate contaminates, poison or my wife's cooking.

In the tobacco cases, the defendants argued that they fulfilled their duties by printing the federally mandated warnings on the side of each pack. Yet even this warning did not shield them from liability.

In contrast, the fast food companies either only supply content lists when requested or post them on signs where the type is smaller than The Artist Currently Known as Prince.

Relying On Burger King To Be Your Nutritionist? I Hope Not.

The most interesting claim made by the plaintiffs in this case is that they "relied upon the skill and judgments of Defendants, their respective agents, servants and/or employees" in ordering fast food. In other words, the plaintiffs are contending that they relied upon nutritional advice obtained from Burger King employees.

This is somewhat difficult to believe. In fact, it seems as unlikely as Robert Blake's "I left my gun in the restaurant" alibi. After all, Burger King employees can seldom be relied upon to provide correct change, yet alone complex medical opinions. In fact, going to McDonald's for nutritional advice is analogous to going to Bill Clinton for marital advice.

Nevertheless, the product defect and inadequate warning label claims could be winners for the plaintiffs. The truth is that eating fast food over the long term can be lethal, and the fast food companies are not exactly elbowing past each other to be the first to tell us that. In the end, the lawsuit looks too similar to the tobacco suits to let Big Nugget rest easy.

Would You Like Some Additional Risk With That?

Interestingly, the law does account for assumption of the risk. As a general rule, if you engage in risky behavior, then you can't recover for your injuries. For instance, if I dip my ears in steak sauce and get into a boxing ring with Mike Tyson, then I assume the risk of my behavior. If Mike decides to have a mid-round "snack," then I'm out of luck (and an ear).

However, in practice, this rule is heeded about as often as the rule that requires you to wait 30 minutes after eating to resume swimming. For instance, in the tobacco cases, the juries ignored the fact we have known that cigarettes were harmful for decades in handing down their multi-billion dollar verdicts. Their decision to blame the cigarette companies, not the plaintiffs, despite the plaintiffs' knowledge of risk might seem to bode well for fast food plaintiffs, too.

But not so fast. Perhaps the tobacco jury believed that the addictive quality of cigarettes made it impossible for the plaintiffs to voluntarily assume the risk of their behavior. If so, the plaintiffs in the fast food case may be out of luck.

For instance, although McDonald's French fries are very good, they are not addictive. After all, if they were addictive, then it wouldn't be possible to get home without digging into the bag for a handful or two. On second thought, perhaps this is not the best example.

The Butt Stops Here

In short, the claims in the tobacco and fast food cases are, upon closer examination, quite similar. But there is one substantial difference between them - and it is based upon our society's differing perceptions of smoking and obesity.

The simple truth is that obesity is much more acceptable than smoking. After all, no one ever claims to have been affected by second-hand fat. Likewise, there are no rules that you require you to eat cheeseburgers in a designated section.

Moreover, smokers do not represent the majority. The percentage of smokers in America is about 25%. On the other hand, 61% of Americans are overweight and the other 39% visit fast food restaurants, if only infrequently.

Therefore, in the tobacco cases, it was much easier for the jury to impose damages that would be ultimately passed along to the consumer. After all, few of the jurors would be paying the costs themselves.

Will the considerable legal merits of the fast food case save it, or will a plus-sized jury kick it out of court? Whatever happens, it will be interesting to watch this case as it winds its way through the legal system. Now, if you will excuse me, my Whopper is getting cold.