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

2. 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?

3. The Chaff
Just like health
departments we How Do We
need to quickly Do It?
and reliably
recognize
unsupportable
claims

4. Basic Tools of the Trade
• Symptoms
• Incubation
• Duration
• Food History
• Medical
Attention
• Suspected
source
• Others Ill
Health Department Involvement

5. Matching Symptoms with Specific
Characteristics of Pathogens
• E. coli O157:H7
• Hepatitis A E. coli O157:H7
Campylobacter
• Salmonella
• Shigella
• Campylobacter Hepatitis A
Salmonella
• Vibrio
Shigella Vibrio

6. 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.

7. Epidemiologic Assessment
• Time
• Place
• Person
association
• Part of a
recognized
outbreak?

8. Medical Attention
• Health care
provider
• Emergency
Room
• Hospitalization

9. Health Department Involvement

10. FOIA/Public Records Request

12. Prior Health Department Inspections
• Improper • Improper
cooking storage
procedures and cooking
procedures
• Improper • Improper
refrigeration sanitation

13. Communicable Disease Investigation
• Reportable
Disease Case
Report Form
• Enteric/viral
laboratory
testing results
– Human
specimens
– Environmental
specimens

14. Molecular Testing Results
• PFGE/MLVA
• PulseNet

15. 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

16. 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)

17. 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

18. 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)

19. 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

20. But, Causation Still Requires
Admissible 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).

21. 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

22. 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

23. What Will a Jury Think?

24. Questions?

25. To Learn More…
Bill Marler
Marler Clark, The Food Safety Law Firm
1301 2nd Avenue
Suite 2800
Seattle, WA 98101
1 866-770-2032