Law and Science with Bill Marler at 2010 PulseNet Update Meeting


Published on

Marler Clark's Bill Marler speaks about the interplay between food safety science and law at the 2010 PulseNet Update Meeting in Chicago.

  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Law and Science with Bill Marler at 2010 PulseNet Update Meeting

  1. 1. 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?
  2. 2. The Chaff Just like health departments we How Do We need to quickly Do It? and reliably recognize unsupportable claims
  3. 3. Basic Tools of the Trade • Symptoms • Incubation • Duration • Food History • Medical Attention • Suspected source • Others Ill Health Department Involvement
  4. 4. 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
  5. 5. 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.
  6. 6. Epidemiologic Assessment • Time • Place • Person association • Part of a recognized outbreak?
  7. 7. Medical Attention • Health care provider • Emergency Room • Hospitalization
  8. 8. Health Department Involvement
  9. 9. FOIA/Public Records Request
  10. 10. Prior Health Department Inspections • Improper • Improper cooking storage procedures and cooking procedures • Improper • Improper refrigeration sanitation
  11. 11. Communicable Disease Investigation • Reportable Disease Case Report Form • Enteric/viral laboratory testing results – Human specimens – Environmental specimens
  12. 12. Molecular Testing Results• PFGE/MLVA• PulseNet
  13. 13. 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
  14. 14. 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)
  15. 15. 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
  16. 16. 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)
  17. 17. 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
  18. 18. 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).
  19. 19. 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
  20. 20. 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
  21. 21. What Will a Jury Think?
  22. 22. Questions?
  23. 23. To Learn More…Bill MarlerMarler Clark, The Food Safety Law Firm1301 2nd AvenueSuite 2800Seattle, WA 981011 866-770-2032