When Food Poisoning Lawsuits Go Too Far (Even Outside New York)

On Friday, it was reported that a 79 year-old man sued McDonald's because when he bit into a hash brown, it contained some "unidentified foreign object," as a result of which he allegedly sustained immediate and "unexplained" medical complications. The plaintiff contends that the McDonald's in question not only preserved the foreign object, but they had it tested, and have prevented him or his experts from evaluating this mystery foreign substance.

Although I usually litigate food poisoning cases from the plaintiff's side, I have a great deal of trouble believing that this case has merit. And if I am skeptical about the legitimacy of this defective food product lawsuit, I think it's a safe bet that a jury (which almost certainly will be less plaintiff-friendly than I am) will feel the same way. Here's why: There is a marked difference between what claims may have just enough specifics to survive a motion to dismiss and what claims you can actually expect to win at trial.

Even assuming that the plaintiff's claims in this case survive McDonald's motion to dismiss the case on the grounds that plaintiff's claims are unduly vague as to identifying what foreign object purportedly caused his illness (which is questionable), the plaintiff claim that he has sustained "unexplained" personal injuries is more troubling - and puzzling; simply put, if the plaintiff doesn't know what his illness is, how can he possibly prove that his illness was caused by something that he consumed at McDonald's?

In sum, from the facts given in the news article, it seems clear that this food poisoning case doesn't pass the smell - or, in this case, taste - test. In contrast, a stronger food poisoning case will likely have some of the supporting proof set forth in this article.