Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/28

 products played a significant role in the plaintiffs’ health problems. While the assignment of such a frequency is beyond the competency of this Court at this time, it seems like the frequency must be more than once per week—a figure cited by plaintiffs’ counsel in oral argument as a potentially not unhealthy figure. Naturally, the more often a plaintiff had eaten at McDonalds, the stronger the likelihood that it was the McDonalds’McDonalds [sic] food (as opposed to other foods) that affected the plaintiffs’plaintiff’s [sic] health.

Second, McDonalds points out that articles on which plaintiffs rely in their Complaint suggest that a number of factors other than diet may come into play in obesity and the health problems of which plaintiffs complain. E.g., National Institutes of Health, Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults, at xi, 27 (1998) (cited in Compl. at 5–6 nn. 6, 8, 13, 14) (“Obesity is a complex multifactorial chronic disease developing from interactive influences of numerous factors—social behavioral, physiological, metabolic, cellular, and molecular” in addition to cultural and genetic factors); The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity, at 1 (2001) (citingcited [sic] in Compl. at 4–7 nn. 3, 4, 9, 15, 16) (“Overweight and obesity are caused by many factors. For each individual, body weight is determined by a combination of genetic metabolic, behavioral, environmental, cultural, and socioeconomic influences.”).

As a result, in order to allege that McDonalds’ products were a significant factor in the plaintiffs’ obesity and health problems, the Complaint must address these other variables and, if possible, eliminate them or show that a McDiet is a substantial factor despite these other variables. Similarly, with regard to the plaintiffs’ health problems that they claim resulted from their obesity (which they allege resulted from their McDonalds habits), it would be necessary to allege that such diseases were not merely hereditary or caused by the environment or other factors.

Because the Complaint fails to allege that the danger of the McDonalds’McDonalds [sic]