PHILADELPHIA - It's no secret that plaintiff lawyers often try to emulate the successes they had in the 1990s suing tobacco companies, when they teamed with government officials to score billions of dollars in fees from massive settlements.
Those agreements, one of which was worth about $250 billion in yearly payments to 46 states in return for the privilege of continuing to do business, provided lawyers involved with the capital to find the next major payday.
The tobacco litigation sought repayment for health care expenses paid by states and didn't pay individuals allegedly misled by the industry. The same can be said for opioid litigation, which played out similarly and has resulted in billions of dollars in settlements for cities, counties and states.
A "first-of-its-kind" lawsuit brought recently in Philadelphia by one firm handling some opioid cases is brought on behalf of just one person. But it's hard not to see the potential for much more.
The case, filed by Morgan & Morgan in December, even blames tobacco companies, despite the topic being so-called ultra-processed foods. They are addictive and terrible for you, the case says, and in the case of plaintiff Bryce Martinez, caused him to develop diabetes and non-alcoholic fatty liver disease by age 16, the suit says.
“The story of ultra-processed foods is an egregious example of companies prioritizing profits over the health and safety of the people who buy their products,” Morgan & Morgan partner Mike Morgan said.
Who are those companies? Defendants include Kraft Heinz, Mondelez International, Coca-Cola, Pepsi, General Mills, Nestle, Post Holdings, Kellanova, Kellogg, Mars and Conagra.
Big Tobacco, Big Pharma and Big Oil have already been dragged into court. Now we have Big Food.
"In the 1980s, Big Tobacco took over the American food environment," the lawsuit says. "Phillip Morris bought major U.S. food companies, including General Foods and Kraft. RJ Reynolds purchased Nabisco, Del Monte, Kentucky Fried Chicken and others.
"Collectively, Phillip Morris and RJ Reynolds dominated the U.S. food system for decades. During this time, they used their cigarette playbook to fill our food environment with addictive substances that are aggressively marketed to children and minorities."
It's a 149-page complaint for just one plaintiff that delves into the history of UPF in food. The tobacco industry consulted with Kraft and General Foods when studying the effects of nicotine on the human brain, it says, to develop addictive UPF.
"In doing so, Big Tobacco companies intentionally designed UPF to hack the physiological structures of our brain," the suit says.
The complaint is the result of a year's work at Morgan & Morgan, which obviously is hoping for more than one payday in one case. Should courts be receptive to these allegations, the next step could be finding government clients to sue for health care costs, just like in tobacco, opioid and other litigation.
Other injuries caused by UPF, Morgan & Morgan and co-counsel Seeger Weiss say, are cancer, cardiovascular disease, irritable bowel syndrome and dementia.
Their plaintiff is from Bucks County, and the case was originally filed in the Philadelphia Court of Common Pleas. Juries in that court are often willing to punish companies, like a $2.25 billion verdict against Monsanto last year in one of the thousands of cases alleging Roundup weedkiller causes cancer.
The American Tort Reform Association, which calls Philadelphia the No. 1 "Judicial Hellhole" in the country, said it was no surprise the case was filed there. It has since been removed to Philadelphia federal court, with the docket showing no activity yet from defendants other than getting their out-of-state lawyers permission to practice there.
The case drew the attention of dozens of other plaintiffs firms that now include UPF pages on their websites. Free consultations are available for clients willing to hire these firms on contingency fees. Time will tell if the case sparks an advertising rush similar to other mass torts, like Camp Lejeune and Zantac cases.
According to Morgan & Morgan, its lawsuit has been a long time coming.
Speaking at an International Life Sciences Institute meeting for food-industry CEOs in 1999, then-Kraft senior scientist and vice president Michael Mudd warned that obesity was causing the U.S. up to $1 billion a year.
"He then implored the attendees to change their ways before this became a crisis for the UPF industry, asking rhetorically, 'With all this, can the trial lawyers be far behind?'" the suit says.