McDonald’s food is hazardous to your health, and everyone knows it. At least that’s what the McDonald’s corporation’s lawyers and a sympathetic judge had to say yesterday, as a class action lawsuit against the fast food giant was thrown out of federal court. McDonald’s, you see, doesn’t want to get caught in the tobacco trap — better to self-flagellate than be caught lying about the healthfulness of one’s product. As Judge Robert Sweet wrote in his opinion, released yesterday, the suit against McDonald’s was deficient because it “fails to allege that the McDonald’s products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer … If consumers know (or reasonably should know) the potential ill health effects of eating at McDonald’s, they cannot blame McDonald’s if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald’s products.”

Call us skeptics, but we don’t expect that the delightfully named Judge Sweet’s eloquent, and sometimes droll, reasoning will ultimately carry the day. Many were the tobacco and asbestos lawsuits tossed out of court before the trial lawyers finally found a tack that stuck or a judge willing to stick it to corporate America. As an expert on tort litigation, Walter Olson of the Manhattan Institute, told us yesterday, “There are class action lawyers who have filed the same action a dozen times and seen what judges get assigned … Even the lawyers going after the fast food companies have always said that the breakthroughs won’t come until years later, as in the tobacco cases.” After all, as Mr. Olson said, “This is a litigation culture that is incapable of taking no for an answer.” In the tobacco lawsuits, for instance, one of the first major breakthroughs for the anti-tobacco forces came from an elaborate lawsuit filed in Mississippi chancery court — a vestige of British law that allowed the state’s attorney general, Michael Moore, and his trial lawyer buddy Richard Scruggs, to avoid a jury trial.

New York lawyer Samuel Hirsch’s decision to bring his case in New York City — and to use obese children as plaintiffs — suggests that the attorney was more concerned with waging a press campaign than a legal assault. But a more refined case could certainly be brought against McDonald’s, or any number of fast food purveyors. Judge Sweet was so kind as to spell out how this could be accomplished. He wrote that if plaintiffs were able “to show that over-consumption of McDonalds is different in kind from, for instance, overconsumption of alcoholic beverages or butter because the processing of McDonalds’ food has created entirely different — and more dangerous — food than one would expect from a hamburger, chicken finger or french fry cooked at home or at any restaurant other than McDonalds … consumers who eat at McDonalds have not been given a free choice, and thus liability may attach.” Thus, if McDonald’s McNuggets are not merely “chicken fried in a pan,” but are in stead “a McFrankenstein creation of various elements,” it could be time to cough up some dough.

We suspect that McDonald’s isn’t doomed quite yet. As Mr. Olson pointed out, it’s harder to go after the fast food industry because there is no small group of fast food purveyors that can be forced into a settlement room — and locating the specific cause of obesity and related ailments is far tougher than was the case with cigarettes. Further, as Judge Sweet pointed out, there is little evidence that McDonald’s has lied about the consequences of eating its food. As Judge Sweet quipped in dismissing the complaint about the appellation of McDonald’s “Mightier Kids Meal,” “Such name is seemingly mere puffery, rather than any claim that children who eat a ‘Mightier Kids Meal’ will become mightier.” Nor, as Judge Sweet pointed out, was anyone ever forced to eat at McDonald’s, save “parents of small children who desire McDonalds’ food, toy promotions or playgrounds and demand their parents’ accompaniment.” However, that Judge Sweet is worried about the possible proliferation of “McLawsuits” doesn’t mean that his opinion will help block them. He gave the plaintiffs a green light to amend their complaint before his bench — and there’s always Mississippi.