A federal judge has dealt a blow to plaintiffs seeking class action status for their claims against McDonald’s for health problems they allegedly developed by relying on the fast-food giant’s claims about the nutritional content of its burgers and fries.
Judge Donald C. Pogue of the U.S. Court of International Trade, sitting in the Southern District by designation, refused to certify a class action brought by regular consumers of Big Macs and other McDonald’s fare, saying that each plaintiff presents unique facts as to the elements of causation and injury.
Judge Pogue made that ruling in Pelman v. McDonald’s Corp., 02 Civ. 07821, the long-running litigation that was based on claims that McDonald’s violated New York’s General Business Law §349 through unfair and deceptive acts and practices.
Principally, the plaintiffs charged that between 1985 and 2002 McDonald’s advertised that its offerings—including Chicken McNuggets, Filet-O-Fish, French fries and hamburgers—”were substantially healthier-than-in-fact, in contradiction to medically and nutritionally established guidelines.”
Reliance on these misrepresentations, the plaintiffs said, caused them to suffer obesity, coronary heart disease, pediatric diabetes, high blood pressure and other ill health effects.
The consumers also claimed the company failed to disclose certain additives and the manner of processing in several products that made the food substantially less healthy than it was represented in ads, corporate nutrition statements, store posters and other communications.
Finally, the plaintiffs said the company reneged on a promise that it had provided and would continue to provide nutritional brochures disclosing ingredients, calorie content, protein, carbohydrates, fat, cholesterol and sodium.
Still, Judge Pogue said, “There is insufficient evidence to establish the existence of a class of persons who hold identical claims, on the basis of identical injuries, to those allegedly suffered by the plaintiffs.”
The judge said “individualized inquiries are necessary to determine whether each plaintiff suffered injury as a result of being deceived by defendant’s allegedly misleading representations.”
In depositions and pretrial hearings, a number of experts provided opinions on the possible causal link between eating food from McDonald’s and obesity and other conditions, and all agreed that such a connection depended on factors unique to each person.
One expert said there was a general causal link between certain medical conditions and the fact that McDonald’s products are high in fat, salt and cholesterol, low in fiber and certain vitamins, and contain beef and cheese.
But Judge Pogue said that because many foods not produced by McDonald’s have these same properties, “and because there is no evidence to suggest that all who consume such foods develop the kinds of medical conditions which are at issue in this case” class certification is inappropriate.
For instance, he said, there are factual questions, “at the very least,” about the composition of the food that plaintiffs consumed outside of their regular trips to McDonald’s “as well as the level of regular physical activity engaged in by each plaintiff.”
And McDonald’s was correct in arguing that “whether or not plaintiffs’ claims—that they ate McDonald’s food because they believed it to be healthier than it was in fact —are true for any particular person is an inquiry which also requires individualized proof.”
Such individualized proof was also necessary to determine each person’s exposure to, and reliance on, the allegedly deceptive advertising and the connection to their consumption of McDonald’s products, he said.
Judge Pogue also rejected the plaintiffs’ alternative bid for “issue” class certification based on liability for deceptive conduct under §349.
The Pelman case was first overseen by Southern District Judge Robert Sweet, who dismissed the putative class action in 2003. Finding that the plaintiffs had failed to allege a causal connection between eating at McDonald’s and their injuries, Judge Sweet wrote, “it’s not the place of the law to protect them against their own excesses.”
But the U.S. Court of Appeals for the Second Circuit revived part of the case in 2005, finding that Judge Sweet erred in dismissing deceptive practices claims under §349 (NYLJ, Jan. 26, 2005).
Judge Sweet refused to dismiss the deceptive acts and practices claims in 2006, finding that the plaintiffs had provided specific examples of allegedly misleading advertising to allow the suit to go forward to discovery on those claims (NYLJ, Sept. 21, 2006).
Bruce Braun, a partner at Winston & Strawn, represented McDonald’s. Mr. Braun said Judge Pogue’s ruling was bad news for plaintiffs who seek to blame their obesity on food purveyors.
“Every time judges have looked at the merits of this case, they’ve found there’s no basis for the claims on the facts or the law,” Mr. Braun said. “This ruling is a clear indication that [obesity cases] are going to be impossible claims to bring, prosecute and prevail on.”
Samuel Hirsch represented the plaintiffs. He did not return a call for comment.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.