Appeals court rules against man who sued McDonald’s for alleged foreign object in burger

By Martin Finucane, Globe Staff

The Massachusetts Appeals Court today rejected an appeal by a man who sued McDonald’s, claiming he had hurt a tooth when he bit down on a foreign object in a hamburger.

The major flaw in the man’s case: He was not able to find the object after he felt it in his mouth.

Daniel L. Burns Jr. bought a double cheeseburger on Oct. 20, 2006, at a McDonald’s on Route 44 in Raynham and began to eat it as he drove. As he was entering Route 44, the court said, he narrowly avoided an accident and he pushed the remaining third of the burger into his mouth so he could grab the steering wheel.

He felt pain and noticed something “hard and bumpy” about the size of a pea, feeling it with his tongue, the court said.

Burns, however, never saw the object. He spit the food in his mouth into a napkin but could never find the object and he claimed to have either swallowed it or lost it during the “traffic emergency,” the court said.

The court said that in order to successfully sue, Burns had to prove that his burger contained an injury-causing object that originated from McDonald’s, and he had to prove a consumer would not have reasonably expected to find such an object in the sandwich.

“Burns cannot make the necessary showings on the facts of record here,” the court said.

“Because Burns never saw the object, was unable to describe it in any detail, and could not determine what it was, Burns was ill-positioned to ask the jury to apply the reasonable expectations test,” the court said.

“Whether the alleged cause of injury was a foreign object in the cheeseburger, something inherent to the product such as gristle, or an object from within Burns’s own mouth such as a piece of filling or piece of Burns’s own tooth was entirely a matter of speculation,” the court said.