Commentary: Kramer vs... McLawsuits

As the World Health Organization launches a worldwide campaign against obesity, Mayor McCheese faces political trouble in the once utopian village of McDonaldland.

Crime may be at a minimum, but life beneath the golden arches could get nastier than the Hamburglar on a hunger strike. As Big Mac Attacks lead to heart attacks, the Big Mac is under attack in super- sized lawsuits casting blame upon the fast food industry for the super-sizing of our waistlines. The Grimace has even attacked the mayor for rejecting his application as city spokesman in favor of a slimmer, smiling redhead.

While the large purple star considered gastric bypass surgery to confront a diagnosis of morbid obesity, McDonaldland Mutual refused to pay for what it deems unnecessary, cosmetic surgery. As the Grimace's lawyer frowns at this denial of insurance benefits, even the Hamburglar has retained counsel, blaming McDonald's for his destructive addiction to fast food.

No wonder why the beleaguered hamburger chain has changed its ad campaigns. Yet, even the commercials are under legal attack as lawyers accuse McDonald's of deceptive advertising designed to conceal the hazardous nature of burgers, fries and nuggets. In one of the first class action lawsuits accusing a restaurant of contributing to the obesity of its patrons, two Bronx teenagers claimed that McDonald's used false advertising to promote food which harmed the health of unsuspecting children. Like the early lawsuits against Big Tobacco, the early cases against Big Burger met with judicial scorn as lawyers accused the corporate giant of placing unknown, addicting ingredients in its french fries, burgers, McNuggets and Filet-O-Fish sandwiches.

Though U.S. District Court Judge Robert Sweet found little merit in the case of Pelman v. McDonald's, he openly questioned the chain's promotion of its products and allowed for the possibility that future claims may be filed for deceptive advertising. It is at least a question of fact as to whether a reasonable consumer would know - without recourse to McDonald's website - that a Chicken McNugget contained so many other ingredients other than chicken and provided twice the fat of a hamburger.

Ronald McDonald may be frowning, but our appetite for litigation will undoubtedly grow with the size of our stomachs. Beyond the food industry, the insurance industry faces growing legal battles as their policy holders battle the effects of obesity. As health organizations characterize obesity as a disabling disease, disability carriers face increasing claims for disability benefits. While some seek compensation because they are unable to work, others seek compensation from employers who question their fitness for the job and discriminate against them on the basis of weight.

Even health insurers face increasing battles from those seeking coverage for the type of gastric bypass surgery popularized by Al Roker and Carnie Wilson. Although many carriers have denied such benefits on the grounds that they do not cover weight loss programs, their policyholders argue that these operations are medically necessary in combating a life-threatening illness.

Whatever the outcome of these obesity lawsuits, the wallets of American lawyers will keep getting fatter ... and the scales of justice must now weigh the evidence in pounds.

Irwin R. Kramer is a trial lawyer and managing partner of Kramer & Connolly, an AV-rated litigation firm representing businesses and individuals throughout Maryland and Washington, D.C. A former professor of evidence and trial procedure, Kramer offers crash courses on a variety of legal subjects at www.KramersLaw.com. ? 2004 by Irwin R. Kramer. All rights reserved.

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