It took our intrepid docket clerk a few weeks of digging, and finally contacting the plaintiffs’ counsel directly, to get a copy of the complaint in Delio v. McDonald’s Corp., a case filed in Superior Court in Hartford County, Connecticut on October 6. Plaintiff’s counsel is Robert Solomon, a clinical professor at a small New Haven law school called Yale, along with Daniel Kinburn of The Cancer Project.
Unlike the Denny’s suit on which both Ken and I have blogged previously, the Conneciticut Grilled Chicken case is remarkably streamlined in its allegations and the remedies sought. The named plaintiffs in the class action suit are two Connecticut residents who consumed grilled chicken products at McDonald’s, Burger King and Friendly’s stores in Connecticut between October 21, 2006, the date on which the complaint claims McDonald’s and Burger King were warned their grilled chicken products were tested to show they contained PhIP, or 2-Amino-1-methyl-6-phenylimidazo[4,5-b]pyridine, a carcinogen, and October 17, 2008, when the plaintiffs allegedly became aware of the cancer-causing effects of grilled chicken. The remedy claimed, beyond what would be nominal damages for the named plaintffis’ purchase of grilled chicken products, is an injunction under the Connecticut Unfair Trade Practices Act which would require warning labels to sell these defendants’ grilled chicken products. They also seek punitive damages and attorneys’ fees, although the complaint’s allegations on those points appear thin.
The complaint is quite readable. Missing are claims of violations of a warranty of merchantibility, or similar claims. The plainitffs appear more willing, instead, to focus solely on their judicial attempt to require a warning label, and then only in Connecticut. Without getting into the validity of their claims, or their motives (which have been questioned by others), this is at least a style of litigation that focuses solely on the issue of food safety and an appropriate remedy.
There are some interesting questions in the case, however. One is why Friendly’s was added as a defendant. It is not for the usual reason, an attempt to keep the case from being removed to federal court, because Friendly’s is incorporated and headquartered in Massachusetts. But the allegations about testing of products relate only to McDonald’s and Burger King; there is just an allegation that Friendly’s "is assumed to be aware of health issues pertinent to restaurants anywhere in the United States" and and even more conclusory, "Upon information and belief, Defendants’ grilled chicken products are prepared in the same manner throughout the United States." What is missing, though, is any direct allegation that anyone has tested Friendly’s grilled chicken products and found they contain PhIP.
The broader question is why this claim is appropriate for judicial resolution, as opposed to legislative or agency action. If the plaintiffs are right, one presumes the issue is not limited to McDonald’s, Burger King and Friendly’s, yet the relief requested, if granted, would apply only to them, and only in Connecticut. One assumes the plaintiffs desire that if granted their relief, at least every restaurant grilling chicken in Connecticut would follow suit in putting their desired warnings in place, but enforcement would only be by additional separate suits that would require proof in each instance. That is cumbersome and inefficient and does not protect the public if the public needs to be protected.
KFC just came out with a huge ad campaign for Grilled Chicken; they are not defendants. TV chefs promote grilled chicken all over television; they are not defendants. Barbecue manufacturers encourage their customers to use their grills to grill chicken; they are not defendants. Chicken producers encourage their customers to grill their chicken products; they are not defendants. I have no idea whether any of these products contain PhIP, but if there is to be a conversation about the health impacts of grilled chicken, I would think they should all be at the table. And with all due respect to the Hartford County Superior Court, I’m not sure one of its judges is the right person to have at the head of the table.