Attorney Lianne Pinchuk asks "Are Fast Food Lawsuits Likely to Be the Next 'Big Tobacco'?" Note the last paragraph:
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.
AEI's Phil Wallach perceptively writes us "Is it really plausible to imagine that plaintiffs� lawyers won�t find SOMETHING that they will call a smoking gun once given the access to the documents? If only the author had [written] 'seemingly' before 'damning,' I would feel a whole lot better about her thesis."
My take on obesity litigation is available at SSRN. Further discussion of this article by Jonathan Adler @ Volokh.
(Congratulate Phil: he just got into Yale and Harvard for grad school. Which means I'll need a new assistant in a few months. Did you know that the Institute has been featured as one of Washingtonian magazine's fifty-five great places to work?)