This document summarizes a presentation by William Marler on foodborne disease outbreaks and litigation. Some key points include: - Foodborne pathogens cause an estimated 48 million illnesses annually in the US, costing $77.7 billion. However, actual cases are likely higher than reported. - Outbreaks can be difficult to identify and link to a source. For example, only 4-8 regulatory actions result from thousands of clusters identified for E. coli O157:H7 and Salmonella. - Litigation can provide an incentive to improve food safety practices, as seen in past outbreaks linked to companies like Odwalla and Jack in the Box. Public health investigations aim to stop outbreaks and prevent

1. Foodborne Disease
Outbreaks and the
Law
CDC Webinar - May 10,
2012
William D. Marler, Esq.

2. What I Tell them: Planning AGAINST
Litigation – Establish Relationships
They are your best friends!

3. To Put Things in Perspective
• According to the CDC,
pathogens in food cause an
estimated 48 million cases
of human illness annually in
the United States
• 125,000 hospitalized
• Cause up to 3,000 deaths
• Illnesses from food
poisoning pose a $77.7
billion economic burden in
the United States annually

4. Estimates Differ From Actual Counts
• Annual E. coli O157:H7
estimates
– 62,000 illnesses
– 1,800 hospitalizations
– 52 deaths

5. Bottom Line: Most Victims Never Linked
E. coli O157:H7 Salmonella
Patterns Submitted 5,376 29,168
Clusters Identified 67 176
Multi-state Clusters 36 152
Epi Investigation 19 30
Vehicle Implicated 4 8
Regulatory Activity 4 8

6. The Long Pathway of a Foodborne
Illness Investigation

7. The Pathway Continued
If there are more ill persons
than expected, an
OUTBREAK might be
underway

8. Pathway of a Foodborne Illness
Investigation

9. Why “WE” do what “WE” do

10. The Criminal Justice System is Broken
Peanut Corporation of America
• 714 persons infected with the outbreak
strain of Salmonella Typhimurium were
reported from 46 states and Canada
• Among persons with available
information, 24% reported being
hospitalized
• Infection contributed to nine deaths:
Idaho (1), Minnesota (3), North
Carolina (1), Ohio (2), and Virginia (2)
• Parnell ordered products identified with
Salmonella to be shipped and quoting
his complaints that tests discovering the
contaminated food were "costing us
huge $$$$$"

11. Strict Product Liability
• Strict Liability
– Are they a
manufacturer?
– Was the product
unsafe?
– Did product
cause injury?
• Negligence
• Punitive Damages
/Criminal Liability – Are they a
product seller?
– Did they act with
conscious disregard – Did they act
“reasonably”?
of a known safety risk?

12. Who is a Manufacturer?
A “manufacturer” is
defined as a “product
seller who designs,
produces, makes,
fabricates, constructs,
or remanufactures the
relevant product or
component part of a
product before its sale
to a user or consumer.”
RCW 7.72.010(2); see also Washburn v. Beatt Equipment Co.,
120 Wn.2d 246 (1992)

13. It’s called STRICT Liability for a Reason
• The only defense is
prevention
• It does not matter if
they took all reasonable
precautions
• If they manufacture a
product that makes
someone sick they are
going to pay
• Wishful thinking does
not help

14. Litigation as Incentive
Odwalla
Jack in the
Box

15. Worthless Excuse No. 1
“I never read
the memo.”
• If a document
contains damning
information, the
jury will assume
they read it,
understood it, and
ignored it

18. Role of Public and Environmental Health?
• It is the Public’s Health
• It is investigating “just
the facts” regardless
where they lead
• It is to be as Transparent
to the extent it can
• Three Goals:
1) Stop the Outbreak
2) Determine Cause
3) Prevent the next
Outbreak

19. How to Accomplish that Role?
Caveat: Public Health is under pressure
• Lawsuits? You have nothing to fear if you do your job
• How to avoid lawyers
1. Document your Investigation and Analysis
2. Provide a through Final Report with all Relevant Documents

20. What to do if you do see my Letterhead
• FOIA – What do I really need
Local Health Departments - Case Investigation Forms,
Reportable Disease Forms, Restaurant Inspection
State Health Departments - Client specific and/or redacted
Questionnaires, Product Traceback and Forward, Lab Results
Federal Agencies – PFGE/MLVA Line List, Facility Inspections

21. Subscribe to Food Safety News
"A stunningly researched work,
"Poisoned" reads as though
Clarence Darrow had written "The
Jungle.”
"Just in time for BBQ season, an
investigative journalist traces the
path of a devastating outbreak of
food-borne illness linked to
hamburger meat.”
Email me at:
bmarler@marlerclark.com

22. Resources
• Food Safety News
• Real Raw Milk Facts
• Foodborne Illness
Outbreak Database
• Marler Blog
• Occupy Food Safety

23. Questions?