Fast-food chains that stuff diners with supersized hamburgers and greasy chicken fear being fried by obesity lawsuits, but the theory behind such cases has proven so far to be half-baked, legal experts say.
While the continuing publicity over a three-year-old obesity suit against McDonald's makes it seem the courts are bulging with cases blaming the food industry for weight problems, few really exist.
Bestselling books such as "Fast Food Nation" and the hit documentary "Super Size Me" -- where filmmaker Morgan Spurlock suffers deteriorating health from a diet of Big Macs and Happy Meals -- give the impression of an industry under assault.
Fearing a flood of such cases and lobbied by the restaurant industry, more than 20 states have enacted or are considering legislation that bars or limits obesity suits against restaurants and food manufacturers.
Nation's Restaurant News, a trade publication, said restaurateurs nationwide remain hopeful that Congress will pass a federal "cheeseburger bill" limiting such suits. The House of Representatives passed such a bill last year.
In the meantime, the landmark 2002 suit against McDonald's is the only pending U.S. action blaming a restaurant chain for obesity.
"There is nothing else like this case," said Richard Daynard, a Northeastern University law professor who has hosted the "Legal Approaches to Obesity" conference in Boston for the past two years and is planning a third in September. "The plaintiffs' bar is not rushing to bring these cases."
A appeals court ruling this year reinstating the twice-dismissed suit and the 50th anniversary of McDonald's this month have fueled a new round of publicity over the case and new speculation over more lawsuits.
But the suit lacks support from the powerful law firms known for battling against tobacco, asbestos and drug companies.
Samuel Hirsch, the New York lawyer who filed the case against McDonald's, did not return calls seeking comment.
"Nobody forces you to go into McDonald's," said Anthony Sabino, a professor at St. John's University Law School. "I just had a quarter pounder with cheese and nobody held a gun to my head. Even in this litigious-crazed society ... even the most ambitious of trial lawyers throw up their hands and say this does not fly."
Proof of injury?
At issue is whether Hirsch can prove that two New York teenagers suffer from obesity and other health problems because they frequently ate at McDonald's. A federal trial judge in Manhattan dismissed the case because it lacked information linking the plaintiffs' injuries with McDonald's foods.
However a federal appeals court in January reinstated part of the suit, saying proof of injuries could be given during pretrial proceedings and need not be in the initial filing.
Many lawyers doubt the plaintiffs can prove their injuries stemmed primarily from eating at one restaurant chain.
"The sources of food are almost infinite. People shop in many stores and they eat in many restaurants ... to identify the proper defendant is almost an insurmountable problem," said Thomas Bezanson, a top lawyer at Chadbourne & Parke.
Many other factors can lead to and exacerbate health problems, including heredity, family eating habits and a lack of exercise, he said.
"It raises the question if there were no McDonald's at all, would their health conditions be any different," he said.
Many lawyers also dismissed comparisons between obesity lawsuits and tobacco suits, noting that tobacco companies hid scientific evidence that nicotine is addictive. Smoking has been linked to cancer and heart disease.
"The plaintiffs in tobacco cases could point to 50 years of lies and deceit about the product, who it was marketed to and what was in it," said Mike Moore, the former Mississippi attorney general who led the states to win more than $200 billion from Big Tobacco in a landmark 1998 settlement.
He said it would be difficult for plaintiffs in obesity cases to prove similar wrongdoing.
Jodi Flowers of Motley Rice, a leading firm in tobacco litigation, said cigarette makers, in efforts to sway jurors, warned that fast food would be next.
"That was never the case in our mind. We thought it was ludicrous ... it's like apples and oranges," she said.
Lawyer Mark Goodman of Debevoise & Plimpton said smokers could argue they were addicted.
"Because food is not addictive, customers can exercise personal choice about what they eat," said Goodman. "I don't think these cases will resonate with juries."
But lawyers did agree that the publicity over the case has had a positive effect of leading McDonald's and other fast food restaurants to include healthier selections on their menus.
"These guys are really scared," Daynard said.
