TCS Daily

Un-Founding Fathers (and Parents)

By Bruce Fein - February 18, 2003 12:00 AM

The Founding Fathers would be mortified and ashamed by the latest litigation frolic against McDonald's.

They brought forth a new nation conceived in self-discipline, heroism, and a conviction that we are masters of our fate, captains of our soul. Scapegoating was alien to their universe. William Wordsworth's "Happy Warrior" was their North Star. They neither demanded food stamps at Valley Forge, nor sued for overtime or hazardous duty pay for crossing the Delaware during inclement weather to capture Britain's mercenary Hessians. They believed in free will, and strict legal, moral, and religious accountability for freely made decisions. Indeed, free will is the premise of all law, religion, and morality.

The lofty and virile culture bequeathed to posterity by our Founding Fathers has dangerously corroded, casting doubt on Darwin's theory of evolution. Cultural degradation finds expression in tort law, the moral deposit of the times. Suits for negligence or strict liability pivot on community assignments of responsibility between the plaintiff and defendant.

If prevailing orthodoxies celebrate freedom to choose and individual accountability - man as Prometheus, not a hapless cog -- then tort suits will encounter stiff resistance. On the other hand, if contemporary moral gospel insists that free choice is spurious and overwhelmed by the allures of vice, sensual gratification and environmental influences, then even the most outlandish tort suits will find smooth sailing.

Accordingly, the tort suit whining about self-inflicted obesity and hoping to make McDonald's the villain in the United States District Court for the Southern District of New York speaks troubling volumes. In Pelman and Bradley v. McDonald's Corporation, a duo of obese teen-age plaintiffs, Ashley Pelman and Jazlyn Bradley, through their parents, alleged that the fast-food delights of the Golden Arches had caused their unhealthy and unsightly rotundities. In a culture that takes self-restraint and free choice seriously, the allegations would be derided as puerile excuses for gluttony. Indeed, the parents of the teenagers would have sermonized against the self-indulgence of their offspring in lieu of a lawsuit promising neither cure nor alleviation.

The primary task of parenting should be moral guidance and example. Yet not a syllable of the complaint against McDonald's alleges the parents of Ashley and Bradley taught and practiced dieting self-restraint. Neither did the complaint allege parental ignorance that gorging on a Big Mac and Super-size fries with no offsetting marathon runs would balloon the waist, distend the derriere and severely impair health.

What the complaint tacitly discloses is malparenting or child neglect as the proximate and culpable causes of Ashley's and Jazlin's obesity and alarming ailments: diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and other health deficiencies. Suing McDonald's to expiate parental sin, as in this case, is a chapter from the Bible deserving harsh condemnation.

The complaint sought to excuse the moral shortcomings of the plaintiffs and to saddle McDonald's with responsibility by pointing to the spiraling incidence of fatness. Since 1980, the percentage of overweight children and adolescents has doubled and tripled, respectively. By 1999, 61 percent of adults were either overweight or obese.

The obese encounter a 50 to 100 percent heightened risk of premature death. Approximately 300,000 fatal casualties annually can be ascribed to health impairing gluttony, which catalyze coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis. In 2000, the cost of obesity was a staggering estimated $117 billion.

But the pandemic of obesity should be treated with stiffer deterrents, not compounded by the temptation of damage recoveries against fast food providers. McDonald's is as blameless for gluttony and its physical diseases as Peter Paul Rubens' voluptuous nudes are for sexual debauchery.

Obesity should be discouraged through climbing health insurance premiums. Schools should acclaim the ancient Greek twining of physical fitness and mental excellence. Parents should set impeccable examples, informed by Aristotle's apercu that what you do thunders so strongly in the ears that what you say cannot be heard.

McDonald's should be laurelled, not sued, for its appetizing menu. A delicious meal may seem trifling, but as Dickens observed in David Copperfield, "Trifles make the sum of life." Diet fanatics may deplore fast-food entries, but freedom means more than monkish austerities. Moderation in all things, including moderation in McDonald's, is the touchstone of health, wealth, and happiness.

The latest chapter in Pelman and Bradley v. McDonald's Corporation is unsatisfying. United States District Judge Robert Sweet dismissed the claims, but with leave to amend to tighten up theories of liability, including McDonald's alleged sales of allergic and addictive products.

But shouldn't the judge have summoned child welfare personnel to scold the plaintiffs for irresponsibility after closing the courthouse door to their diversionary and ill-conceived lawsuit? Wouldn't Pogo have lectured, "You have met the enemy, and he is you?"

Bruce Fein is a contributing editor to Tech Central Station and partner in the law firm Fein & Fein.

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