Food Safety Litigation 101 with Bill Marler
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Food Safety Litigation 101 with Bill Marler



Marler Clark Managing Partner Bill Marler's 2010 presentation at the University of Arkansas School of Law

Marler Clark Managing Partner Bill Marler's 2010 presentation at the University of Arkansas School of Law



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Food Safety Litigation 101 with Bill Marler Food Safety Litigation 101 with Bill Marler Presentation Transcript

  • Real Events Happening Daily to Real People
    76 million cases of foodborne illness annually*
    325,000 hospitalizations*
    5,000 deaths*
    Medical costs, productivity losses, costs of premature death costs $6.9 billion dollars a year
    May be as high as $200 billiondollars a year
    * The CDC updated this information in late 2010
  • Marler Clark, LLP PS
    Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State.
    Only a fraction of the victims who contact our office end up being represented.
    Who do we turn away?
  • The Chaff
    Just like health departments we need
    to quickly and reliably recognize
    unsupportable claims
    How Do We Do It?
  • Basic Tools of the Trade
    Food History
    Medical Attention
    Suspected source
    Others Ill
    Health Department Involvement
  • Matching Symptoms with Specific Characteristics of Pathogens
    E. coli O157:H7
    Hepatitis A
  • Matching Incubation Periods
    Incubation Periods Of Common Pathogens
  • Epidemiologic Assessment
    Person association
    Part of a recognized outbreak?
  • Medical Attention
    Health care provider
    Emergency Room
  • Health Department Involvement
  • FOIA/Public Records Request
  • Prior Health Department Inspections
    Improper Cooking Procedures
    Improper Refrigeration
    Improper Storage and Cooking Procedures
    Improper Sanitation
  • Communicable Disease Investigation
    Reportable Disease Case Report Form
    Enteric/viral laboratory testing results
    Human specimens
  • Molecular Testing Results
  • Traceback Records
    POS A
    FIRM A
    FIRM D
    FIRM I
    FIRM N
    POS B
    FIRM E
    FIRM J
    FIRM B
    FIRM F
    FIRM K
    POS C
    FIRM G
    FIRM O
    FIRM L
    POS D
    FIRM C
    FIRM H
    FIRM M
    No. of outbreaksAssoc. with firm/Total no. of outbreaks
    Firm Name
    Firms A,C,D,G,
    Growers A&C
    Firms B,E,F,J,K
    Firm O, Grower D
    Grower B
  • Improper Cooking Procedures
    A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain. 
    Her illness was not culture-confirmed.
    No food on site tested positive for E. coli O157:H7. 
    Review of health inspections revealed flawsin cooking methods.
    Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splashonto a nearby bun.
  • Improper Refrigeration
    A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak.
    No contaminated leftover food was found. 
    A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission.
    Health Department report noted “raw meat stored above the Jell-O in the refrigerator.” 
    The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator.
  • Improper Storage and Cooking
    Banquet-goers in tested positive for Salmonella.
    Leftover food items had been discarded or tested negative. 
    Restaurant had “pooled” dozens, if not hundreds, of raw eggs in a single bucket for storage overnight, then used them as a “wash” on a specialty dessert that was not cooked thoroughly. 
  • Civil Litigation – A Tort – How it Really Works
    • Strict liability
    • It is their fault – Period!
    • Negligence
    • Did they act reasonably?
    • Punitive damages
    • Did they act with conscious disregard of a known safety risk?
  • Strict Liability for Food
    “… a manufacturer of a food product under modern conditions impliedly warrants his goods… and that warranty is available to all who may be damaged by reason of its use in the legitimate channels of trade…”
    Mazetti v. Armour & Co., 75 Wash. 622 (1913)
  • 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 alsoWashburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)
  • The Legal Standard: Strict Liability
    • The focus is on the product; not the conduct
    • They are liable if:
    • The product was unsafe
    • The product caused the injury
  • It’s called STRICT Liability for a Reason
    The only defense is prevention
    Wishful thinking does not help
    If they manufacture a product that causes someone to be sick they are going to pay IF they get caught
  • Why Strict Liability?
    Puts pressure on those (manufacturers) that most likely could correct the problem in the first place
    Puts the cost of settlements and verdicts directly onto those (manufacturers) that profit from the product
    Creates incentive not to let it happen again
  • Bottom Line
    “Resistance is Futile”
  • Negligence Is The Legal Standard Applied To Non-Manufacturers – in some States
    The reason for excluding non-manufacturing retailers from strict liability is to distinguish between those who have actual control over the product and those who act as mere conduits in the chain of distribution.
    See Butello v. S.A. Woods-Yates Am. Mach. Co.,72 Wn. App. 397, 404 (1993).
  • Punitive (or Exemplary) Damages
    • Punish the defendant for its conduct;
    • Deter others from similar conduct.
    Historically, such damages were awarded to discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior.
    What about criminal conduct?
  • The Legal Arsenal
    Requests for production
    Requests for inspection
    Request for admission
    Third-party subpoenas
    Motions to compel
  • Litigation At Work – A Bit(e) of History
    Jack in the Box - 1993
    Odwalla - 1996
  • A Real Life Example – A Real Trial
    Benton Franklin Health District
    OCTOBER 1998
    Call from Kennewick General Hospital infection control nurse
    Call from elementary school principal
  • Preliminary Interviews
    Kennewick General Hospital
    Kennewick Family Medicine
    Interview tool
    Knowledge of community
    Asked questions from answers
  • Case Finding
    Established communication with area laboratories, hospitals and physicians
    Notified the Washington State Department of Health Epidemiology office
    Established case definition early and narrowed later
  • Finley Schools
    Finley School District
    Middle School
    High School
    Rural area
    Water supply
    Irrigation water
    Septic system
  • Epidemiologic Investigation
    Classroom schedules
    Bus schedules
    Lunch schedules
    Recess schedules
    Case-Control Study
    Cohort Study of Staff
    Cohort Study of Meals Purchased
  • Environmental Investigation
    Playground Equipment
    Water system
    Sewage system
  • Hand Rails
    Dirty Can Opener
    Army Worms
    Stray dogs
    Environmental Investigation
  • Environmental Investigation
    Kitchen inspection
    Food prep review
    Food sample collection
    Product trace back
    • Central store
    • USDA
  • Results
    8 confirmed casesof E. coli O157:H7
    3 probable cases
    1 secondary case
    8 PFGE matches
  • Results
    Ill students in grades K-5
    All but one ill child at a taco meal
    No other common exposures detected
    No ill staff members
  • Results
    Food handling errors were noted in the kitchen
    There was evidence of undercooked taco meat
    No pathogen found in food samples
  • Conclusions
    Point source outbreak related to exposure at Finley Elementary School
    A source of infection could not be determined
    The most probable cause was consuming the ground beef taco
  • The Lawsuit
    Eleven minor plaintiffs: 10 primary cases, 1 secondary case
    Parents also party to the lawsuit, individually and as guardians ad litem
    Two defendants: Finley School District and Northern States Beef
  • The Basic Allegations
    Students at Finley Elementary School were infected with E. coli O157:H7 as a result of eating contaminated taco meat
    The E. coli O157:H7 was present in the taco meat because it was undercooked
    The resulting outbreak seriously injured the plaintiffs, almost killing one of them
  • At Trial: The Plaintiff’s Case
    The State and the BFHD conducted a fair and thorough investigation
    Final report issued by the WDOH concluded the taco meat was the most likely cause of the outbreak
    The conclusion reached as a result of the investigation was the correct one
  • More of The Plaintiff’s Case
    There were serious deficiencies in the District’s foodservice operation
    There were reasons to doubt the District’s explanation of how the taco meat was prepared
    The law only requires a 51% probability to prove the outbreak’s cause-in-fact
  • The School District’s Defense
    The taco meat was safe to eat because:
    No E. coli in it
    We love children
    We are always careful to cook it a lot
  • The Taco Meal Recipe Card
  • More of the School District’s Defense
    • We’ve never poisoned anyone before
    • The health departments botched investigation
    • Something else caused the outbreak
    • Someone sold us contaminated meat
  • What Will a Jury Think?
    A Jury
    12 Consumers
  • What Did This Jury Think?
    The investigation was fair and thorough
    More probably than not, undercooked taco meat caused the children to become ill
    The School District was ultimately responsible for ensuring the safety of the food it sold to its students
  • In The End
    After a six week trial, plaintiffs were awarded $4,750,000
    The District appealed the verdict on grounds that it was a product seller and one child did not eat Taco
    We won on appeal and then in 2003 the WA State Supreme Court dismissed the District’s case
    Final award - $6,068,612.85
  • Salmonella Pot Pies
    272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint were collected from ill persons in 35 states. Three of these patients’ pot pies yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.
    Lesson - clear pattern of customer confusion over ready to eat and ready to cook – especially in microwaves.
  • Salmonella Veggie Booty?
    • 69 reported cases of Salmonella Wandsworth in 23 states and 14 cases of Salmonella Typhimurium in six states who became ill after consuming Veggie Booty, a puffed vegetable snack food with a raw, dried vegetable coating. A total of 61 bags were tested in twelve states. Salmonella sp. was isolated from thirteen bags of Veggie Booty.
    • Lesson– know your suppliers.
  • Salmonella Chili’s
    • 305 persons confirmed ill
    • 9 hospitalized, and 179 sought medical care
    • Restaurant closed for 11 days
    • 28 employees tested positive for salmonella
    • Depressed sales in region due to bad publicity
    • 8 months after outbreak, store closed for good
    “The investigation revealed environmental factors such as loss of hot water, loss of all water, the large number of ill employees at the facility, a general lack of hand washing and dish-machine sanitizer failure …contributed to/exacerbated the spread….
  • Salmonella Tomatoes, or was it Peppers?
    • A final count of 1,442 ill in 43 states, D.C., and Canada, and those are the confirmed illnesses. Using CDC math - which estimates that for every documented case of salmonella in the US, another 38.5 go unreported - the total number sickened was probably closer to 50,000.
    • Lesson– FDA and CDC are woefully underfunded and understaffed.
  • Botulism in a Can
    • As of August 24, 2007, eight cases of botulism had been reported to CDC from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). All eight persons were reported to have consumed hot dog chili sauce made by Castleberry's Food Company.
    • Castleberry’s manufacturing facility closed after decades in operation.
    • Lesson– Invest in equipment and people.
  • E. coli and Campylobacter in Raw Milk
  • E. coli and Hamburger – Together Again
    In 2007 and 2008 - 26 recalls; ground beef companies recalled more than 44 million pounds of E. coli O157:H7-contaminated meat.
    In 2006 – 186,000 pound recalled.
  • Leafy Greens
    25 E. coli outbreaks since 1995 with at least 1,000 reported illnesses and 7 deaths
    Fresh or fresh-cut lettuce or spinach implicated as outbreak vehicle - 8 outbreaks traced back to produce from Salinas, CA
    In 2006 alone, Dole Spinach, Taco Bell and Taco Johns - between 400 - 750 ill
  • Imports - Hepatitis A
    Chi-Chi’s restaurant in Pennsylvania – 660 people sickened, 4 deaths, 100 hospitalized, liver transplant
    Settlements - $50,000,000
    Green Onions imported and grow “in conditions of squalor”
    Important --- don’t be too focused on imports
  • Peanut Butter and Salmonella - Again
    Over 750 persons infected with the outbreak strains of Salmonella Typhimurium have been reported from 48 states
    Over 150 people hospitalized
    Nine Deaths
    Over 3000 products recalled
    Criminal Prosecution
    Declaratory Judgment
    Lesson - ?
  • To Learn More…
    Bill Marler
    Marler Clark, The Food Safety Law Firm
    1301 2nd Avenue
    Suite 2800
    Seattle, WA 98101
    1 866-770-2032