A judge with balls
Kudos to Judge Robert W. Sweet of the Southern District of New York for bringing some common sense and a strong sense of personal autonomy and personal responsibility to his ruling on the prominent "fast food" class action against McDonald's. Is it a coincidence that the opinion was released on January 22 -- the 30th anniversary of the Roe decision?
The judge dismissed the plaintiffs' claims, essentially finding that product liability claims cannot be brought against the manufacturer of products which are commonly known to the average person to have inherent risks and dangers. He did, however, grant the plaintiffs leave to amend their complaint to refine their allegations -- a common judicial maneuver. Let's see what the plaintiffs come up with.
The case is Pelman v. McDonald's - PDF. (Thanks to How Appealing for the first of many mentions.)
Excerpts from the ruling deserve reproduction:
The issue of determining the breadth of personal responsibility underlies much of the law: where should the line be drawn between an individual’s own responsibility to take care of herself, and society’s responsibility to ensure that others shield her? Laws are created in those situations where individuals are somehow unable to protect themselves and where society needs to provide a buffer between the individual and some other entity -- whether herself, another individual or a behemoth corporation that spans the globe.
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This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food. . . Following from this aphorism, one important principle in assigning legal responsibility is the common knowledge of consumers. If consumers know (or reasonably should know) the potential ill health effects of eating at McDonalds, they cannot blame McDonalds if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonalds products. On the other hand, consumers cannot be expected to protect against a danger that was solely within McDonalds’ knowledge. Thus, one necessary element of any potentially viable claim must be that McDonalds' products involve a danger that is not within the common knowledge of consumers. As discussed later, plaintiffs have failed to allege with any specificity that such a danger exists.
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Thus, in order to state a claim, the Complaint must allege either that the attributes of McDonalds products are so extraordinarily unhealthy that they are outside the reasonable contemplation of the consuming public or that the products are so extraordinarily unhealthy as to be dangerous in their intended use. The Complaint -- which merely alleges that the foods contain high levels of cholesterol, fat, salt and sugar, and that the foods are therefore unhealthy -- fails to reach this bar. It is well-known that fast food in general, and McDonalds' products in particular, contain high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for one.
This rule makes sense in light of the policy issues discussed at the outset of this opinion. If a person knows or should know that eating copious orders of supersized McDonalds' products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonalds. (Except, perhaps, parents of small children who desire McDonalds’ food, toy promotions or playgrounds and demand their parents’ accompaniment.) Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu.
As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. It is only when that free choice becomes but a chimera -- for instance, by the masking of information necessary to make the choice, such as the knowledge that eating McDonalds with a certain frequency would irrefragably cause harm -- that manufacturers should be held accountable. Plaintiffs have failed to allege in the Complaint that their decisions to eat at McDonalds several times a week were anything but a choice freely made and which now may not be pinned on McDonalds.
Judge Sweet is no stranger to controversy, and he has a decided libertarian bent, as we can see from his comments in the second footnote of the opinion:
2 In the interest of consistency and integrity, it should be noted that the author of this opinion publicly opposed the criminalization of drugs. See Stephen Labaton, “Federal Judge Urges Legalization of Crack, Heroin and Other Drugs,” N.Y. Times at A1 (Dec. 13, 1989) (“Judge Sweet became the first Federal judge to propose publicly that illegal drugs be made legal . . . .”). This belief is based upon the notion that, as long as consumers have adequate knowledge about even harmful substances, they should be entitled to purchase them, and that the issue should be one of health, rather than of the criminal law. E.g., Robert W. Sweet & Edward A. Harris, Moral and Constitutional Considerations in Support of the Decriminalization of Drugs, in How To Legalize Drugs 430, 433 (Jefferson M. Fish, ed. 1998) (“Ultimately, we favor a drug policy that would be comparable to the nation’s current policy and legal framework regulating alcohol, and we suggest that support for such a policy -- based on a right to self-determination -- may be derived from the Ninth Amendment of the Constitution.”). The same logic must apply in the situation of fast food, which is arguably less harmful and certainly less demonized than drugs that have been made illegal -- unless, of course, this case is the opening salvo in the “War on Big Macs.”
The Ninth Amendment!!! God bless 'im. This should be our next Supreme Court justice. Except, of course, that he's 80 years old.
6:55:06 PM 
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