Law and Science with Bill Marler at 2010 PulseNet Update Meeting
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? Why?
The Chaff Just like health departments we How Do We need to quickly Do It? and reliably recognize unsupportable claims
Basic Tools of the Trade • Symptoms • Incubation • Duration • Food History • Medical Attention • Suspected source • Others Ill Health Department Involvement
Matching Symptoms with SpecificCharacteristics of Pathogens • E. coli O157:H7 • Hepatitis A E. coli O157:H7 Campylobacter • Salmonella • Shigella • Campylobacter Hepatitis A Salmonella • Vibrio Shigella Vibrio
Matching Incubation Periods Incubation Periods Of Common Pathogens PATHOGEN INCUBATION PERIOD Staphylococcus aureus 1 to 8 hours, typically 2 to 4 hours. Campylobacter 2 to 7 days, typically 3 to 5 days. E. coli O157:H7 1 to 10 days, typically 2 to 5 days. Salmonella 6 to 72 hours, typically 18-36 hours. Shigella 12 hours to 7 days, typically 1-3 days. Hepatitis A 15 to 50 days, typically 25-30 days. Listeria 3 to 70 days, typically 21 days. Norovirus 24 to 72 hours, typically 36 hours.
Epidemiologic Assessment • Time • Place • Person association • Part of a recognized outbreak?
Medical Attention • Health care provider • Emergency Room • Hospitalization
Traceback Records GROWER POS A FIRM A FIRM D FIRM I FIRM N A GROWER POS B FIRM E FIRM J B FIRM B FIRM F FIRM K GROWER POS C C GROWER FIRM G D FIRM O POS D FIRM C FIRM L FIRM H FIRM M No. of outbreaks Assoc. with firm/ Firm Name Total no. of outbreaks Firms A,C,D,G, H,I,L,M,N 1/4 Growers A&C 1/4 Firms B,E,F,J,K 2/4 Firm O, Grower D 3/4 Grower B 4/4
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)
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 STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT
Causation - Science “Causation is an essential concept in epidemiology, yet there is no single, clearly articulated definition ….” J Epidemiol Community Health 2001Dec;55(12):905-12; Parascandola M, Weed DL. Confidence Interval (CI) – Range within which 95% of times the true value of the estimated association lies (95% CI)
Causation – The Law “A proximate cause of an injury is a cause which, in natural and continuous sequence, produces the injury, and without which the injury would not have [likely] occurred. The concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition.” Prosser, Torts, pp. 311-313 However, “It really is what is more likely than not. It is 50% and an extra grain of sand.” Marler on the law
But, Causation Still RequiresAdmissible Evidence • Whether a theory or technique can be (and has been) tested • Whether it has been published and subjected to peer review • Whether it has a high potential rate of error • Whether it enjoys general acceptance in scientific community • Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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 Creates incentive settlements and verdicts not to let it happen directly onto those again (manufacturers) that profit from the product