Pelman v. McDonald's Corp., No. 02 CIV. 7821(RWS).

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Sweet
• Citation: 237 F.Supp.2d 512
• Parties: Ashley PELMAN, a child under the age of 18 years, by her Mother and Natural Guardian Roberta Pelman, Roberta Pelman, Individually, Jazlyn Bradley, a child under the age of 18 years, by her Father and Natural Guardian Israel Bradley, and Israel Bradley, Individually, Plaintiffs, v. McDONALD'S CORPORATION, McDonald's Restaurants of New York, Inc., McDonald's 1865 Bruckern Boulevard, Bronx, New York, McDonald's 2630 Jerome Avenue, Bronx, New York, Defendants.
• Decision Date: 22 January 2003
• Docket Number: No. 02 CIV. 7821(RWS).

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237 F.Supp.2d 512 Ashley PELMAN, a child under the age of 18 years, by her Mother and Natural Guardian Roberta Pelman, Roberta Pelman, Individually, Jazlyn Bradley, a child under the age of 18 years, by her Father and Natural Guardian Israel Bradley, and Israel Bradley, Individually, Plaintiffs,
v.
McDONALD'S CORPORATION, McDonald's Restaurants of New York, Inc., McDonald's 1865 Bruckern Boulevard, Bronx, New York, McDonald's 2630 Jerome Avenue, Bronx, New York, Defendants. No. 02 CIV. 7821(RWS). United States District Court, S.D. New York. January 22, 2003.

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Samuel Hirsch & Associates, New York, NY by Samuel Hirsch, Esq., of Counsel, for Plaintiffs.

Winston & Strawn, New York, NY by Thomas J. Quigley, Esq., Bradley E. Lerman, Esq., Bruce R. Braun, Esq., of Counsel, Wildman, Harrold, Allen & Dixon, Chicago, IL by Anne G. Kimball, Esq., Sarah L. Olson, Esq., of Counsel, Harris Beach, LLP, New York, NY, by Judi Abbott Curry, Esq., Brian A. Bender, Esq., of Counsel, Badger & Levings, LLC, Kansas City, KS, by Elizabeth D. Badger, Esq., Theresa Levings, Esq., of Counsel, Balber, Pichard, Battistori, Maldonad & Vander Tuin, New York, NY, by Thomas P. Battistori, Esq., of Counsel, for Defendants.

OPINION

SWEET, District Judge.

 TABLE OF CONTENTS
                Prior Proceedings ........................................................................ 519
                Facts .................................................................................... 519
                Parties .................................................................................. 519
                Obesity in Young Persons and Its Effects ................................................. 519
                Claims ................................................................................... 520
                Discussion ............................................................................... 521
                 I. Diversity Jurisdiction Exists, and the Plaintiffs' Motion To Remand Is
                 Denied ..................................................................... 521
                 A. The Outlets .............................................................. 521
                 B. McDonalds of New York .................................................... 522
                 C. The Outlets and McDonalds of New York Are Akin To Retailers
                 And Distributors of McDonalds Corp.'s Products ......................... 523
                 II. McDonalds' Motion to Dismiss ................................................. 524
                 A. Standard of Review ....................................................... 524
                 B. Counts I and II: Plaintiffs Fail to State a Claim Pursuant to N.Y.
                 Gen. Bus. Law §§ 349 and 350 ........................................... 524
                 1. Federal Pre-Emption .................................................. 525
                 2. Requirements of §§ 349 And 350 ....................................... 526
                 a. Count I .......................................................... 527
                

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 i. Deceptive Acts .............................................. 527
                 ii. Deceptive Omissions ......................................... 529
                 b. Count II ......................................................... 530
                 III. Counts III, IV and V: Negligence Claims ...................................... 530
                 A. Count III: Inherently Dangerous Food ..................................... 531
                 1. Whether McDonalds Had a Duty to Plaintiffs Because the
                 Dangers Were Not Within Common Knowledge ............................ 531
                 a. Allegations Within the Complaint ................................. 531
                 b. Allegations Outside the Complaint ................................ 533
                 i. Plaintiffs' Claim that McDonalds' Products are More
                 Dangerous than the Average Hamburger, Fries and
                 Shake .................................................... 534
                 ii. Allergic Sensitivity ....................................... 536
                 iii. Foreseeable Misuse ......................................... 536
                 iv. The NLEA ................................................... 537
                 2. Proximate Cause ...................................................... 537
                 B. Count IV: Failure to Warn of Unhealthy Attributes ........................ 540
                 IV. Count V: Sale of Addictive Products .......................................... 542
                 V. Leave to Amend is Granted .................................................... 543
                Conclusion ............................................................................... 543
                

Defendants McDonald's Corporation ("McDonalds Corp."); McDonald's Restaurants of New York, Inc. ("McDonalds of New York"); McDonald's 1865 Bruckner Boulevard Bronx, New York ("Bruckner Boulevard outlet"); and McDonald's 2630 Jerome Avenue, Bronx, New York ("Jerome Avenue outlet") (collectively "McDonalds") have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint of class-action plaintiffs Ashley Pelman, Roberta Pelman, Jazlen Bradley, and Israel Bradley. The plaintiffs have cross-moved to remand the case to state court.

This action presents unique and challenging issues. The plaintiffs have alleged that the practices of McDonalds in making and selling their products are deceptive and that this deception has caused the minors who have consumed McDonalds' products to injure their health by becoming obese. Questions of personal responsibility, common knowledge and public health are presented, and the role of society and the courts in addressing such issues.

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. Thus Congress provided that essentially all packaged foods sold at retail shall be appropriately labeled and their contents described. The Nutrition Labeling and Education Act of 1990, Pub.L. 101-535, 104 Stat. 2353 (Nov. 8, 1990) (the "NLEA"), 21 U.S.C. § 343(q).¹ Also as a matter of federal

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regulation, all alcoholic beverages must warn pregnant women against their use. 27 U.S.C. § 215 (forbidding sale of alcohol unless it bears the following statement: "GOVERNMENT WARNING: (1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects ...."); 27 C.F.R. § 16.21. Congress has gone further and made the possession and consumption of certain products criminal because of their presumed effect on the health of consumers.² Other products have created health hazards and resulted in extensive and expensive class action litigation. E.g., Amchem Products v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (affirming denial of certification of class of potentially millions who had suffered injuries as a result of exposure to asbestos); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liability Litig., 282 F.3d 220, 225 (3d Cir.2002) (class action of six million who took diet drugs (Pondimin and Redux) that were later linked to valvular heart disease); In re Breast Implant Cases, 942 F.Supp. 958, 959-60 (S.D.N.Y. 1996) (discussing possibility of transfer of thousands of cases alleging injuries from silicone breast implants). Public health is one, if not the, critical issue in society.

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. As discussed, infra, this guiding principle comports with the law of products liability under New York law. As Sir Francis Bacon noted, "Nam et ipsa scientia potestas est,"³ or knowledge is power. 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

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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.

McDonalds has also, rightfully, pointed out that this case, the first of its kind to progress far enough along to reach the stage of a dispositive motion, could spawn thousands of similar "McLawsuits" against restaurants. Even if limited to that ilk of fare dubbed "fast food," the potential for lawsuits is great⁴: Americans now spend more than $110 billion on fast food each year, and on any given day in the United States, almost one in four adults visits a fast food restaurant. Eric Schlosser, Fast Food Nation 3 (2002) (hereinafter "Schlosser"). The potential for lawsuits is even greater given the numbers of persons who eat food prepared at other restaurants in addition to those serving fast food. See FDA, Food Labeling; General Requirements for Health Claims for Food, 58 FR 2478, 2516, 1993 WL 1547 (Jan. 6, 1993) ("Almost half of the American food dollar is spent on food consumed away from home, and ... perhaps as much as 30 percent of the American diet is composed of foods prepared in food service operations."). In light of these facts, the Court is cognizant of its duty "to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability." McCarthy v. Olin...