BETWEEN: (2) MCDONALD'S RESTAURANTS LTD.
- AND - (2) HELEN MARIE STEEL (4) DAVID MORRIS
PLAINTIFFS' CLOSING SUBMISSIONS VOLUME 2 FOOD POISONING ADVERTISING ANIMALS
BARLOW LYDE & GILBERT |
FOOD POISONING
W/CO
(1) X headings:
"McDisease" McDeadly"
(2) 4th page, 2nd col., under 'children':
"hide the fact at worst poisonous."
(3) 5th page, box in 1st col.:
"What's your poison? " etc.
Note: "worst offenders. "
2. Pleaded meanings: Ream S/C
* See English and Scottish Cooperative Society v. Odhams Press [1940] 1KB 440 at 4523, per Slesser, LJ.
2.2 Imagine finding this in such a leaflet (box rewritten):
(Rewrite underlined) .
Leaflet: p . 4, Col. 2
3. Those allegations are defamatory of both Pffs just as the nutrition allegations are, and for similar reasons. *
* See Ruling of 20.11. 95, 26F27A.
And both are allegations of fact; for the same reasons as the nutrition allegations are:
If the q. whether the food is likely to give people food poisoning is a matter of opinion (which it plainly isn't), then McD's can't know that it is so and can have nothing to "hide".
You can't hide what you don't know.
Indeed, the words on the 4th page, 2nd colt, of the leaflet actually state that McD's are trying to hide "the fact" that the food is "at worst poisonous."
5. The facts
5.1 The general position:
(a) "In my experience, you have to work very hard to get food poisoning."
Dr.North: 107:44: 4150 (xx)
(b) Q: "At the end of all this we should keep in perspective the number of food poisoning cases as a percentage of the number of meals eaten". * Are you speaking there of food poisoning cases generally... or are you speaking merely about salmonellosis ?
*Quotation from book by Dr. N. and Teresa Gorman ( 1990): Tab 9 of North does. (own file).
A: I think you can have application to both [ie salmonellosis and E.Coli poisonings.
Q: "It is so small as to be statistically insignificant and the number of deaths even more so. " *
* same citation
Does that hold good today?
A: Yes, it still applies.
North: 107:60: 5060. (repeated, ans. J, at 107:62: 615).
See also North: 107:49: 431, confirming "the idiocy of those who scaremonger about food poisoning. "
5.2 Salmonella
5.2.1 Salmonellosis is dose dependent: 100,000 100m. needed. Proliferation requires the right conditions (warm(ish), moist). Cooking for long enough at the right temperature destroys even potentially dangerous amounts.
5.2.2 The risk at McD's:
(a)
Q: If a McNugget should leave Sun Valley or its sister company in France, or a hamburger should leave McKey's, in circumstances where the bacterial population have not been given the chance to multiply dramatically, there is, so long as it is not abused between that stage and consumption, no risk or no serious risk of food poisoning at all, is there?
A: In my opinion, there is not.
North: 107:54:411.
(NB that North had visited Sun Valley, McKey's and a McD's in Leeds in August 1994).
(b) A: ...I do not think, frankly, salmonella poisoning from McD's is a major risk. . .
Q: Would you agree that. . . the risk is insignificant?
A: Would you be content with me saying I would not waste a lot of time on it? [RR: Yes! ]
North:
107:77:3143
5.2.3 There may be no need to go any further. It
is, however, worth noting 2 points:
(1) Despite its comparative rarity, McD's spend a lot of effort (and money) trying to ensure that their customers don't get salmonellosis; so do their suppliers.
(more later)
(2) Dr. North's estimate of the risk (smallnegligible) is borne out by the incidence of salmonellosis amongst McD's customers.
(more later)
5.3 E. Coli: 0157:H (relatively new organism).
5.3.1 Not dose dependent
Often more serious in its consequences.
But
Much less common than salmonella
(4 cows in 600: 107:556 ) North
(84 " " 2103: 244:9 )
More vulnerable to heat: 70°C for 15" will kill it.
5.3.2 Same two points as 5.2.3.
5.3.3 Infrequently found by McD's suppliers. *
* D.Walker:
77:42:57-43: 2
Dr.GG:
95:58:1217(?)
(Given the size of McD's
operation in the USA,
10 identifications in 5
years is insignificant).
5.4 McD's preventative measures, inc.
suppliers (briefly):
HACCP systems
Temperature controls*
* As to the importance of this, see North on diIution/proliferation: 107:58:2442
- Sterilisation procedures (people & equipment)
- Laboratory analysis/sampling (for testing the systems)
- Training of staff
- Checks on suppliers by McD's QA people
- Checks on abattoirs by McKey's QA people.
- Above all, cooking. *
* Note: All of these are important, but cooking is the most important. See Prof. Jackson (81 :passim), who had visited SV, Bowes, MMP and McKey's (twice) and gave them all "highly satisfactory": 81:4:136:12
5.4.1
Cooking times
(1) Hamburgers
(i) US and UK (up to Feb. 1991)
10:1 : 39" (range 3741")
(same for Big Mac
= 2 10:1s).
P X/12
(Ops.Manual)
15 Quarterpounder (QLB): 104" (range 101106")
Note:
P X/12 also shows how many
10:1s and QLBs (4:1s) you can cook at once on a full clamshell grill.
P XA/47 shows the same thing for a Model 12 clamshell.
On both the full and the Model 12, you can fit 12 10:1s.
On the full, you can fit 9 QLBs, and on the Model 12, 6.
(ii) UK (from 14 February 1991)
P VIII B/18 10: 1 : Flat grill : 115 120"
Clamshell: 40 44"
QLB : Flat grill 280 290"
(4'40"4'50" )
Clamshell: 111 115"
P VIII / 18 (iii) UK (from 20 May 1993)
QLB : Clamshells : 115121"
(12 and 15)
Note: At the same time, for both 10: Is and QLBs, the 'maximum run size' was reduced to 9 and 6 respectively.
(2) Chickens
(i) McNuggets
P XA/59 4' to 4' 10" at 182°C
(ii) McChicken Sandwich
P XA/66 3' at 182°C.
See Dr. GG 5.4.2 The position in the US (and 66: 1021 worldwide) is no different.
5.4.2.1 A word in passing about Dr. GG:
Very highly qualified: entitled to be regarded as an expert on both animal husbandry and food safety in his own right. And is treated as such in the US and elsewhere.
66: 48
Travels extensively for McDs: has visited most of the 74 countries in which McD's operate (end 1994)* except E. Europe.
66:89
* end 1995 :91
Where McD's is setting up for the first time, helps new operator to ensure that he can meet all McD's standards before he opens: this may take a long time.
66: 1011
67:6:377:32
16:1732
(Costa Rica)
Food Safety is his (and McD's) no. 1
priority.
66: 10: 3540
5.5
This is hardly very surprising. For a food retailer to adopt a slapdash attitude to food safety to cut corners in order to save a few pennies here and there and so to risk
poisoning large nos. of customers would be commercial suicide.
See North:
107:48: 4852
(also 107:33: 26)
5.5.1 And this, of course, is what accounts for the
huge amount of time and money which McD's
and their suppliers devote to food safety: it
is a commercially worthwhile investment
(leaving aside the (absurd) q. whether they would actually like to see large nos. of people taken ill and perhaps Die from eating their food!).
Dr GG:66: 201
5.6 The proof of the pudding is in the eating
5.6.1 McD's started in the US in 1954/5. At the end of 1995, it was operating in 91 countries in the world and had 18,380 restaurants.
5.6.2 An estimate can be made of the no. of meals
sold by McD's since 1979, at least.
5.6.3 In Dec. 1994, Dr. GG said* that McD's were
selling c.28m. meals/day worldwide, giving c.
10bn. for the year. (365 x 28 = 10.2bn.)
*66: 21: 216 5.6.3
5.6.4 That estimate can be verified, as follows:
(i) In 1991, there were about 5bn customer visits (meals sold) in the USA.
P VIA/45/211 and 212
(ii) In 1991, there were 8,746 rests. in the US.
P III/5/135
(iii) Therefore, the average no. of visits per rest. in the US in 1991 was 571,690; say 570,000.
(iv) Assuming that the average no. of visits per rest. was roughly same throughout the world, then in 1991~, when there were 12,418 rests. throughout the
world*, the total no. of customer visits would have been about 7bn.
*P III/3/91
(v) Using that method of calculation (which may be conservative: UK visits per rest. in 1994 was about 700,000), a table can be drawn showing the nos. (and the growth) from 1979 to 1995; see Table 1, over.
(vi) The sources for this are:
P III/1/3 for 197989
P III/3/91 for 19901
P III/4/106 for 1992
P III/5/135 for 1993 (in fact, this p. gives the figs. for 198393).
Annual Report for 1994 ) Copies of relevant Annual Report for 1995 ) pages attached.
FOOD POISONING
TABLE 1
x 570,000=
No. of restaurants Worldwide Estimated number of meals sold
1979 5,747 3,275,790,000 (c.3.3 bn (US))
1980 6,263 3.6 bn
1981 6,739 3.8 bn
1982 7,259 4.1 bn
1983 7,778 4.4 bn
1984 7,778 4.7 bn
1985 8,901 5.0 bn
1986 9,401 5.4 bn
1987 9,911 5.6 bn
1988 10,513 5.9 bn
1989 11,162 6.4 bn
1990 11,803 6.7 bn
1991 12,418 7.0 bn
1992 13,093 7.5 bn
1993 13,993 7.9 bn
1994 15,950 9.0 bn
1995 18,380 10.5 bn
100.8 bn TOTAL
McDONALD'S CORPORATION
Restaurants System-wide sales Operating Income Assets
in billions of dollars in billions of dollars in billions of dollars
1989 1994 1989 1994 1989 1994 1989 1994
11,162 15,205 $17.3 $26.0 $1.4 $2.2 $9.2 $13.6
U.S. Outside of
U.S.
11-year summary 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984
(Dollars rounded to millions, except per common share date and average restaurant sales)
Systemwide sales S25,987 23,587 21,885 19,928 18,759 17,333 16,064 14,330 12,432 11,001 10,007
U.S $14,941 13,243 12,519 12,252 12,012 10,576 9,.534 8,843 8,071
14,186 11,380
Outside of the $11,046 9,401 8,642 7,409 6,507 5,321 4,684 3,754 2,898 2,158 1,936
U.S.
Systemwide sales
by type
Operated by $17,146 15,756 14,474 12,959 12,017 11,219 10,424 9,452 8,422 7.612 6,914
franchisees
Operated by the $ 5,157 5,103 4,908 5,019 4,601 4,136 3,667 3,106 2,770 2,538
Company 5,793
Operated by $3,048 2,674 2,308 2,061 1,723 1,513 1,444 1,211 904 619 555
affiliates
Average sales by $1,800 1,768 1,733 1,658 1,649 1,621 1,596 1,502 1,369 1,296 1,264
restaurants open
at least one
year, in
thousands
Revenues from $ 2,251 2,031 1,787 1,621 1,465 1,325 1,186 1,037 924 828
franchised 2,528
restaurants
Total revenues $8,321 7,408 7,133 6,695 6,640 6,066 5,521 4,853 4,143 3,694 3,366
Operating income $2,241 1,984 1,862 1,679 1,596 1,438 1,288 1,160 983 905 812
Income before $1,887 1,676 1,448 1,299 1,246 1,157 1,046 959 848 782 707
provision for
income taxes
Net income $1,224 1,083 959 860 802 727 646 549* 480 433 389
Cash provided by $1,926 1,680 1,426 1,423 1,301 1,246 1,177 1,051 852 813 701
operations
Financial
position at year
end
Net property and $11,328 10,081 9,597 9,559 9,047 7,758 6i,800 5,820 4,878 4,164 3,521
equipment
Total assets $13,592 12,035 11,681 11,349 10,668 9,175 8,159 6,982 5,969 5,043 4,230
Long-term debt $2,935 3,489 3,176 4,267 4,429 3,902 3,111 2,685 2,131 1,638 1,268
Total $6,885 6,274 5,892 4,835 4,182 3,550 3,413 2,917 2,506 2,245 2,009
shareholders
equity
Per common
share**
Net income $1.68 1.45 1.30 1.17 1.10 .97 .86 .72* .62 .55 .49
Dividends $.23 .21 .20 .18 .17 .15 .14 .12 .11 .10 .08
declared
Total $9.20 8.12 7.39 6.73 5.82 4.90 4.55 3.86 3.22 2.84 2.47
shareholders'
equity at year
end
Market price at $29¼ 28½ 24 3/8 19 14½ 17¼ 12 11 10 9 5¼
year end 1/8
Systemwide 15,205 13,993 13,093 11,162 9,911 9,410 8,901 8,304
restaurants at 12,418 11,803 10,513
year end
Operated by 10,458 9,237 8,735 8,131 7,573 7,110 6,760 6,406 6,150 5,724
franchisees 9,832
Operated by the 3,083 2,699 2,551 2,547 2,643 2,691 2,600 2,399 2,301 2,165 2,053
Company
Operated by 1,664 1,462 1,305 1,136 1,029 898 803 752 703 586 527
affiliates
U.S. 9,744 9,283 8,959 8,764 8,576 8,270 7,907 7,567 7,272 6,972 6,595
Outside of the 5,461 4,710 4,134 3,654 3,227 2,892 2,606 2,344 2,138 1,929 1,709
U.S.
Number of 79 70 65 59 53 51 50 47 46 42 36
countries at year
end
*Before the cumulative prior years' benefit from the change in accounting
for income taxes.
**Restated for two-for-one common stock split in June 1994.
1994 highlights
nearly $26.0 billion in Systemwide sales
over $2.2 billion in operating income
more than $1.9 billion in net income
over $1.2 billion in net income
an asset base reaching $13.6 billion
a net income per common share increase of 16 percent
TheAnnual 1994
AT A GLANCE
On any day. even as the market leader, McDonald's serves less than one percent of the world's population. We are in a strong position to capitalize on the growth opportunities before us: our strengths include outstanding brand recognition, experienced management. highquality food. site development expertise. advanced operational systems and a unique global infrastructure. We plan to expand our leadership position by profitably adding restaurants and by increasing sales and profits through superior marketing. excellent op(?rations and cost efficiencies. Our efforts to increase market share. profitability and customer satisfaction have produced consistently high returns to shareholdersan average of 18 percent per year over the past 10 years.
1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985
(Dollars rounded to millions, except per common share date and average restaurant sales)
Systemwide sales $29,9l4 25,987 23,587 21,885 19,928 18,759 17,333 16,064 14,3:3 12,432 11,001
0
U.S $15,905 14,941 14,186 13,243 12,519 12,252 12,012 11,380 10,576 9,534 8,843
Outside of the $14,009 11,046 9,401 8,642 7,409 6,507 5,321 4,684 3,754 2,898 2,158
U.S.
Systemwide sales
by type
Operated by $19,123 17,146 15,756 14,474 12,959 12,017 11,219 10,424 9,452 8,422 7,6l2
franchisees
Operated by the $6,863 5,793 5,157 5103 4,908 5,019 4,601 4,196 3,667 3,106 2,770
Company
Operated by $3,928 3,048 2,674 2,308 2,061 1,723 1,513 1,444 1,211 904 619
affiliates
Average sales by $1,844 1,800 1,768 1,733 1,658 1,649 l,621 1,596 1,502 1,369 1,296
Systemwide
restaurants open
at least one
year, in
thousands
Revenues from $2,931 2,528 2,251 2,031 1,787 1,621 1,465 1,325 1,186 1,037 924
franchised
restaurants
Total revenues $9,795 8,321 7,408 7,133 6,695 6,640 6,066 5,521 4,853 4,143 3,694
Operating income $ 2,241 1,984 1,862 1,679 1,596 1,438 1,288 1,160 983 905
2,601
Income before $ 1,887 1,676 1,448 1,299 1,246 1,157 1,046 959 848 782
provision for 2,169
income taxes
Net income $ 1,224 1,083 959 860 802 727 646 549* 480 433
1,427
Cash provided by $ 1,926 1,680 1,426 1,423 1,301 1,246 1,177 1,051 852 813
operations 2,296
Financial
position at year
end
Net property and $12,811 11,328 10,081 9,597 9,559 9,047 7,758 6,800 5,820 4,878 4,164
equipment
Total assets $15,415 13,592 12,035 11,681 11,349 l0,668 9,175 8,159 6,982 5,969 5,043
Long-term debt $ 4,351 3,713 3,857 4,615 4,792 4,036 3,269 2,784 2,321 1,768
4,836
Total $7,861 6,885 6,274 5,892 4,835 4,182 3,550 3,413 2,917 2,506 2,245
shareholders
equity
Per common share
Net income $1.97 1.68 1.45 1.30 1.17 1.10 .97 .86 .72* .62 .55
Dividends $..26 .23 .21 .20 .18 .17 .15 .14 .12 .11 .10
declared
Total $ 9.20 8.12 7..39 6.73 5.82 4.90 4.55 3.86 3.22 2.84
shareholders' 10.72
equity
Market price at $ 45 29¼ 28½ 24 3/8 19 14½ 17¼ 12 11 10 1/8 9
year end 1/8
Restaurants at
year end
Systemwide 18,380 15,950 14,163 13,093 12,418 11,803 11,162 10,513 9,911 9,410 8,902
restaurants
U.S. 11,368 10,238 9,397 8,959 8,764 8,576 8,270 7,907 7,567 7,272 6,972
Outside of U.S. 7,012 5,712 4,766 4,134 3,654 3,227 2,892 2,606 2,344 2,138 1,929
Traditional l6,809 15,205 13,993 13,093 12,418 11,803 11,162 10,513 9,911 9,410 8,901
restaurants
Operated by 11,240 10,458 9,832 9,237 8,735 8,131 7,573 7,110 6,760 6,406 6,150
franchisees
Operated by the 3,513 3,083 2,699 2,551 2,547 2,643 2,691 2,600 2,399 2,301 2,165
Company
Operated by 2,056 1,664 1,462 1,305 1,136 1,029 898 803 752 703 586
affiliates
U.S. 10,341 9,744 9,283 8,959 8,764 8,576 8,270 7,907 7,567 7,272 6,972
Outside of the 6,468 5,461 4,710 4,134 3,654 3,227 2,892 2,606 2,344 2,138 1,929
U.S.
Number of 89 79 70 65 59 53 51 50 47 46 42
countries at year
end
*Before the cumulative prior years' benefit from the change in accounting for income taxes.
5.6.5 If roughly 100 bn. ( a billion or ten either
way) meals have been eaten at McD's
worldwide in the course of 17 years, then?
if the food had carried any significant
risk of FP,
one would expect to find that there had
been 100s of outbreaks (an outbreak =
60/100 people that ate the food on the
occasion in question* ) and many
thousands of individual cases
*North: 107:40:412 Note also his comments about the (un)reliability of complaints: 39:458
5.6.6 In fact, the score is, on the evidence,
E. Coli: 2 (1982 (US) and 1991 (UK) )
Salmonella: O2
[ Typhoid : 1 (1987 (US) ): but irrelevant, anyway, because it was caused by an employee who was an unknown carrier. ]
Rummel: Y XII /
D14, pare. 2
1Not that even one incident of E. Coli poisoning is trivial: it is, or may be, in itself, serious (qualitatively). But this does not mean that the risk of its happening is serious (quantitatively) . On the contrary these figs. show that, at McD's at least, the risk is (mercifully) very small.
Shrewsbury case (Admission 1. of 22.3.95) might be thought a 'close shave' (the child didn't eat the chicken).
5.6.7
This doesn't mean there may not have been some cases, particularly of salmonellosis, which haven't come to light (E. Coli cases, because of their relative seriousness, are less likely to go unreported: but it may happen because the symptoms are not always serious*) .
* see Jackson: 81:28:5329:10
5.6.8 But even allowing for that, the fact remains
that the flood of cases which one would expect
to see from the consumption of such a vast
quantity of food over so long a period, f the
food were significantly unsafe, simply has not
occurred.
5.6.9 Thus, although it is apparent that food
poisoning it not easy to get, McD's and their
suppliers must take some credit for ensuring
that what is already a slight risk is kept to
the minimum.
6. Residues
6.1 Second part of 'What's your poison?' box.
6.2 No specific complaint in S/C.
6.3 May squeeze into the case under FP generally
(but a tight squeeze) *
* see summary of Polly Peck at 6.9.2 of R&W, post.
6.4 In any event no acceptable evidence offered
by the Ds.
6.4.1 North has the wrong expertise.
244:23:56
24:7 (ans.J.)
6.4.2 With the result that 'his 'knowledge' of the
dangers to human health is all inadmissible hearsay.
ibid. and 244:
25: 5560
6.4.3 See also Dr. GG (who may be rather better
qualified in this area than Dr North) re antibiotic and hormone residues.
66:70:1324
6.5 Conclusion: ignore residues altogether.
7. Additives
7.1 Irrelevant: nothing in the leaflet (nor any
room for them under a Polly Peck 'common
sting' *).
* [1986] QB
1000 at 1032
AF, per
O'Connor LJ.
7.2 Prof. Walker (worldranking toxicologist) v.
Dr. Millstone (lecturer in science policy):
no contest.
7.3 Ignore additives altogether.
8. Foreign body
8.1 Irrelevant: nothing in the leaflet (nor any room for them under Polly Peck).
8.2 Just an(other) attempt by the Ds. to cause gratuitous damage to McDs from a privileged platform. (more later under Malice and Damages ) .
8.3 Ignore foreign bodies altogether.
9. Conclusion
The allegations in the leaflet are false.
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