Lianne S. Pinchuk, an associate at Weil Gotshal, has an article today at Law.com comparing fast food litigation with cigarette litigation and summarizing the unpromising prospects of the former. The article highlights some of the obstacles to lawyers seeking significant damages from purveyors of fast food — including evidentiary burdens (particularly on the element of causation), and state statutes (the so-called “cheeseburger bills”) immunizing the food industry from certain types of liability. The Situationist would add a further source of protection for the industry: the widely held sense that blame for obesity belongs on those who eat the food, not those who manufacture, market, and sell it.
Pinchuk concludes her article this way:
Despite the lack of success of obesity-related personal injury cases thus far, it is important to remember that when allegations were first made against tobacco companies, the possibility of large verdicts seemed remote. It was only once the litigation reached the discovery phase and negative internal documents were revealed that large plaintiffs’ verdicts became possible. The Big Food cases to date have generally not led to discovery, and only Big Food itself knows what damning documents may exist. If they do exist and are discovered by plaintiffs lawyers, they may provide ammunition for more suits and increasing verdicts. Right now, however, fast food companies are enjoying more protections than tobacco companies ever did, and it appears that Big Food is not the next Big Tobacco.
The point is a good one and reveals a double bind for plaintiffs. If fast-food lawsuits are not viable because of the presumption that consumers are to blame, and if a key way that one can demonstrate the culpability of the industry is through a discovery process that is permitted only when one has a viable cause of action, then it may be that our attributions of blame reflect the failure of lawsuits as much as it is the case that the the failure of lawsuits reflect our assessment of blame.