A judge with nuggets?
One aspect of Judge Sweet's opinion in Pelman v. McDonald's which is getting a lot of attention (and which we simply bypassed in our earlier treatment of the case) is his alleged suggestion to the plaintiffs of a theory of liability which might pass his libertarian scrutiny. See, for example, Adam Cohen's "The McNugget of Truth in the Fast-Food Lawsuits" in the editorial section of today's New York Times.
If you recall, the thrust of Judge Sweet's opinion was that the dangers of eating fast food, of eating food that is high in cholesterol, or of eating a lot of any kind of food are all matters well within the ken of the ordinary citizen and thus cannot support a claim based on failure to warn or on product defect. Chicken McNuggets, however, are another matter entirely. One of the opinion's many memorable quotes arose from a characterization of Chicken McNuggets as a "McFrankenstein creation", made up of a long list of unusual ingredients, including several polysyllabic chemicals. (His opinion also mentioned McDonald's fries in this context, but that part has not caught the attention of the pundits, perhaps because Hardee's has never run ads making fun of McDonald's fries.)
Several commentators have read the opinion's handling of this issue as an invitation to devise a new theory of liability, or even a suggestion by the judge as to how a theory could be fashioned. I don't read it that way.
The actual language from the opinion on this topic:
Similarly, plaintiffs argue that McDonalds' products have been so altered that their unhealthy attributes are now outside the ken of the average reasonable consumer. They point to McDonalds’ ingredient lists to show that McDonalds’ customers worldwide are getting much more than what is commonly considered to be a chicken finger, a hamburger, or a french fry. Schlosser, supra, at 7 (“Foods that may look familiar have in fact been completely reformulated.”).
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. A Chicken McNugget is comprised of, in addition to chicken:
water, salt, modified corn starch, sodium phosphates, chicken broth powder (chicken broth, salt and natural flavoring (chicken source)), seasoning (vegetable oil, extracts of rosemary, mono, di- and triglycerides, lecithin). Battered and breaded with water, enriched bleached wheat flour (niacin, iron, thiamine, mononitrate, riboflavin, folic acid), yellow corn flour, bleached wheat flour, modified corn starch, salt, leavening (baking soda, sodium acid pyrophosphate, sodium aluminum phosphate, monocalcium phosphate, calcium lactate), spices, wheat starch, dried whey, corn starch. Batter set in vegetable shortening. Cooked in partially hydrogenated vegetable oils, (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or corn oil). TBHQ and citric acid added to help preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent.
Pls.’ Mem. at 23 (citing McDonalds ingredient list). In addition, Chicken McNuggets, while seemingly a healthier option than McDonalds hamburgers because they have “chicken” in their names, actually contain twice the fat per ounce as a hamburger. Schlosser, supra, at 140. It is at least a question of fact as to whether a reasonable consumer would know -- without recourse to the McDonalds' website -- that a Chicken McNugget contained so many ingredients other than chicken and provided twice the fat of a hamburger.
Similarly, it is hardly common knowledge that McDonalds' french fries are comprised, in addition to potatoes, of:
partially hydrogenated soybean oil, natural flavor (beef source), dextrose, sodium acid pyrophosphate (to preserve natural color). Cooked in partially hydrogenated vegetable oils, (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or corn oil). TBHQ and citric acid added to preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent.
This argument comes closest to overcoming the hurdle presented to plaintiffs. If plaintiffs were able to flesh out this argument in an amended complaint, it may establish that the dangers of McDonalds' products were not commonly well known and thus that McDonalds had a duty toward its customers. The argument also addresses McDonalds’ list of horribles, i.e., that a successful lawsuit would mean that “pizza parlors, neighborhood diners, bakeries, grocery stores, and literally anyone else in the food business (including mothers cooking at home)” (Defs.’ Mem. at 3), could potentially face liability. Most of the above entities do not serve food that is processed to the extent that McDonalds’ products are processed, nor food that is uniform to the extent that McDonalds' products are throughout the world. Rather, they serve plain-jane hamburgers, fries and shakes -- meals that are high in cholesterol, fat, salt and sugar, but about which there are no additional processes that could be alleged to make the products even more dangerous. In addition, there is the problem of causation; hardly any of the entities listed above other than a parent cooking at home serves as many people regularly as McDonalds and its ilk.
The court's discussion of these factors is introduced by a notation that these are arguments that the plaintiffs raised for the first time in connection with the motion. In keeping with common practice, the judge decided that that was too late to raise such an argument, but granted leave to the plaintiffs to amend their complaint to properly raise these theories and arguments and allow them to be fully developed, argued, and briefed before he was required to decide them.
I am not as certain as these commentators are that the judge was suggesting new theories of liability to the plaintiffs. It rather appears that he was rejecting a theory advanced by plaintiffs on procedural grounds, because it was not raised in a timely fashion. The language that he used, particularly the comment that these arguments "come closest to overcoming the hurdle", may be something of a predictor of his eventual ruling on these issues, but there is nothing which suggests that the origin of these theories was the creative imagination of the judge rather than that of the plaintiff's attorney.
I wonder, indeed, if the memorable phrase "McFrankenstein creation" itself was coined by the judge or by plaintiff's counsel.
8:17:35 AM 
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