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2011 Rocky Mountain Food Safety Conference

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Marler Clark in-house Epidemiologist Patti Waller's presentation on the current state of foodborne illness litigation.

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2011 Rocky Mountain Food Safety Conference

  1. 1. 2011 Rocky Mountain Food Safety Conference<br />Recent and Emerging Trends in Foodborne Illness Litigation<br />Patti Waller<br />Marler Clark <br />May 17, 2011<br />Boulder, CO<br />
  2. 2. Putting It Into Perspective<br /><ul><li>48 million cases of foodborne illness each year in the US
  3. 3. 128,00 hospitalizations
  4. 4. 3,000 death</li></ul>Scallan E, Hoekstra RM, Angulo FJ, et. al. Foodborne illness acquired in the United States – major pathogens. EmergInfect Dis. 2011 Jan; http://www.cdc.gov/EID/content/17/1/7.htm<br />
  5. 5. Foodborne Illness is Expensive<br />$152 billion annual costs<br />For five foodborne pathogens,* medical costs, productivity losses, and costs of premature death total:<br />$6.9 BILLION<br />* Campylobacter, Salmonella (non-typhoidal), E. coli O157:H7, Listeria monocytogenes, and other Shiga-toxin producing strains of E. coli.<br />This represents only a fraction of the total costs due to foodborne illness, which include some costs, such as pain and suffering, that are difficult to quantify, and other costs, such as costs of recalls, lost sales, loss of reputation, and public health expenditures, that are often overlooked.<br />
  6. 6. More than just a stomach ache<br />According to the Food and Drug Administration, an estimated 2 to 3 percent of foodborne illness victims develop secondary long-term medical complications.<br />That’s 1 million lingering health problems each year.<br />See Frezen. Economic Research Service, USDA. The Economics of Food, Farming, National Resources & Rural America, www.ers.usda.gov<br />
  7. 7. Meet Katelyn<br /><ul><li>Ate contaminated ground beef
  8. 8. E. coli O157:H7
  9. 9. Hemolytic Uremic Syndrome
  10. 10. 3 weeks hospitalization
  11. 11. Pancreatitis
  12. 12. Damage to central nervous system
  13. 13. Liver damage
  14. 14. High blood pressure</li></ul>Katelyn before E. coli<br />
  15. 15. Long term consequences - Katelyn<br /><ul><li>Pancreas destroyed
  16. 16. Type 1 diabetic, insulin dependent
  17. 17. Likely to progress to end stage renal disease, requiring multiple kidney transplants</li></ul>Katelyn after E. coli<br />Since this horrific event occurred, people always ask me how our lives have changed and I don’t even know where to begin. Instead of getting into details, the answer I usually give is that “Everything has changed. Nothing is the same.” Katelyn’s mom<br />
  18. 18. Marler Clark Law Firm<br /><ul><li>Formed in 1998
  19. 19. Seattle based
  20. 20. 7 attorneys, and 10 staff
  21. 21. Primary focus is representing people seriously injured as a result of a foodborne illness
  22. 22. Clients in all 50 states, settlements totaling >$500,000,000
  23. 23. Advocates for food safety and public health</li></ul> Bill Marler<br />
  24. 24. Marler Clark Investigations<br /><ul><li>Contacted daily by persons who suspect they have a foodborne illness
  25. 25. Very few callers describe an event that warrants further follow-up
  26. 26. Individuals who meet screening criteria are sent “new client packets”
  27. 27. Isolated cases involving serious injury or death are often investigated in spite of the odds against identifying a source</li></li></ul><li>Basic Tools of the Trade<br />Health Department Involvement<br /><ul><li>Symptoms
  28. 28. Incubation
  29. 29. Duration
  30. 30. Food History
  31. 31. Medical/Laboratory Diagnostics
  32. 32. Suspected source
  33. 33. Others Ill</li></li></ul><li>Public Record Requests<br />
  34. 34. A few of the basics<br />Plaintiff attorneys<br />Defense attorneys<br />Recovery of legitimate losses such as medical expenses and wages<br />Coverage for future needs due to injury<br />INSURANCE<br />
  35. 35. Liability for Selling Contaminated Food<br /><ul><li>Strict liability</li></ul>Focus is on the product-is it unreasonably dangerous or defective<br /><ul><li>Negligence</li></ul> Focus on the conduct did it meet the standard of care<br />
  36. 36. Strict Liability<br />A manufacturer is liable if:<br />The product had a defect which rendered it unreasonably dangerous;<br />The defect existed at the time the product left the manufacturer’s control; and<br />The defect caused injury<br />
  37. 37. Who is a Manufacturer?<br />The definition differs slightly in every state;<br />A “manufacturer” is defined as a “product seller who designs, produces, makes, fabricates, constructs, or remanufacturers the relevant product or component part of a product before its sale to a user or consumer…” <br />RCW 7.72.01 0(2); SEE ALSO Washburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)<br />
  38. 38. Are restaurants manufacturers?<br />Yes. For example, a foodservice operation that thawed, cooked, and seasoned ground beef for sale as school lunch tacos was held to be a manufacturer.The court ruled that there was no question that the defendant’s “cooking process falls neatly into the definition for “product,” “make,” “fabricate,” and “construct.”<br />See Almquist v. Finley School District No. 53, 114 Wn. App. 395 (2002). <br />
  39. 39. Why Strict Liability?<br />It puts pressure on the party (manufacturers) that most likely could correct the problem in the first place.<br />It puts the cost of settlements and verdicts directly on the party (manufacturers) that profited from the defective product’s sale.<br />
  40. 40. NEGLIGENCE and non-manufacturers <br />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 conduitsin the chain of distribution.<br />See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn.App. 397, 404 (1993).<br />
  41. 41. Suppliers/Producers Held More Accountable<br /><ul><li>Defense strategy
  42. 42. Underinsured
  43. 43. No insurance
  44. 44. Bankruptcy</li></ul>Depending on laws in each state, these factors may put upstream suppliers and/or distributors at risk for liability.<br />
  45. 45. Outbreaks of S. Baildon and S. Hartford<br />Salmonella serotype Hartford<br /> 75 ill in 15 states<br />Illness onsets between April 30 and July 18, 2010<br />Salmonella serotype Baildon <br />80 ill in 15 states<br />Illness onsets between May 11 and July 19, 2010<br />Epidemiologic evidence points toward PRODUCE consumed at multiple Taco Bell restaurants<br />
  46. 46. Peanut Corporation of America<br />2008-2009<br />Over 700 ill persons<br />Over 150 people hospitalized<br />9 deaths<br />4000+ products recalled<br />$12m has been applied to claims <br />Bankruptcy<br />FDA inspectors reported after spending 2 weeks at the Blakely, Georgia plant that the company knew its product was tainted with Salmonellabut shipped them anyway after re-testing. This happened at least 12 times in 2007-2008.<br />
  47. 47. DeFusco’s Bakery – March 2011<br /><ul><li>Salmonella Heidelberg
  48. 48. 79 ill persons
  49. 49. 30 hospitalizations
  50. 50. 2 deaths
  51. 51. Bacteria found in empty boxes usedfor raw eggs</li></ul>NO LICENSE TO OPERATE!<br />NO INSPECTIONS!<br />NO INSURANCE!<br />
  52. 52. SanGar Fresh Cut Produce, Texas<br /><ul><li>Outbreak of Listeria monocytogenes
  53. 53. Texas Dept. of State Health Services and FDA investigation
  54. 54. 10 case-patients, 5 deaths
  55. 55. 7 of 10 consumed chopped celery
  56. 56. Product distributed to restaurants and institutions (hospitals!)
  57. 57. Indistinguishable PFGE between patients, product, and environmental swabs
  58. 58. Facility closed on October 21, 2010</li></ul>NOW….<br />MISSING IN ACTION!!<br />
  59. 59. Reliance on New Diagnostics<br />Pulsed Field Gel Electrophoresis (PFGE)<br />Multi-Locus Variable Tandem Repeat Analysis (MLVA)<br />
  60. 60. JBS Swift and E. coli O157:H7, 2009<br /><ul><li>Linked to JBS Swift meat products
  61. 61. 23 case-patients in 9 states
  62. 62. 17 hospitalized
  63. 63. 2 developed Hemolytic Uremic Syndrome
  64. 64. PFGE Pattern Combo – relatively COMMON!
  65. 65. XBA – EXHX01.0074
  66. 66. BLN – EXHA26.0569</li></ul>MLVA – Outbreak Pattern A1<br />B<br />B<br />B<br />B<br />B<br />B<br />b<br />
  67. 67. EPIDEMIOLOGY still rules!<br />WRIGHT COUNTY EGGS INC<br />From May 1 to November 30, 2010, approximately 1,939 illnesses of Salmonella Enteritidis infections occurred nationwide.<br />
  68. 68. “New” Pathogens & Contaminated Foods<br />“New” pathogens<br />Non-O157 STECS<br />Salmonella in meat<br />MRSA and other antibiotic resistant bacteria<br />“New” routes of exposure <br />Intact vs. non-intact beef<br />“New” vehicles of transmission<br />Commercial Cookie Dough<br />Nuts and nut products<br />Celery and other vegetables/fruits <br />
  69. 69. Food Safety Modernization Act of 2010<br /><ul><li>Allow the FDA to order a recall of tainted foods;
  70. 70. Require larger food processors and manufacturers to register with the FDA and create detailed food safety plans;
  71. 71. Require the FDA to create new produce safety regulations for producers of the highest-risk fruits and vegetables;</li></li></ul><li> FDA Food Safety Modernization Act of 2010<br /><ul><li>Require CDC and state health departments to coordinate foodborne illness surveillance;
  72. 72. Establish stricter standards for the safetyof imported food;
  73. 73. Increase inspections of domestic and foreign food facilities, directing the most resources to those operations with the highest risk profiles.</li></li></ul><li>Traceability<br />FDA to establish a product tracing system to receive information that allows FDA to effectively and rapidly track and trace food for consumption in US.<br />No specific timeline provided for establishing a product tracing system.<br />Improve surveillance with state public health authorities.<br />
  74. 74. Does the FSMA mean the end of Marler?<br />
  75. 75. Nah…we’ll still have “Sprout-breaks”<br />Jimmy Johns/Tiny Greens<br /><ul><li>Alfalfa sprouts
  76. 76. Nov 2010 – Feb 2011
  77. 77. Salmonella I 4,[5], 12:i:-
  78. 78. 140 ill personsin 26 states</li></ul>Sprouters Northwest<br /><ul><li>Clover sprouts
  79. 79. December 2010
  80. 80. Salmonella Newport
  81. 81. 6 ill persons in Washington and Oregon</li></li></ul><li>….and Raw Milk<br />
  82. 82. Bobby Ray “Pete”<br /><ul><li>Consumed Austin-brand peanut butter crackers
  83. 83. Ill on Sunday night
  84. 84. Died on Wednesday</li></ul>+ for Salmonella Typhimurium<br />PFGE match to PCA outbreak strain<br />Pete never spoke to me again. He was hooked up to a breathing machine. He had needles stuck in him, it seemed like there was 15 to 20 needles total. I told him I loved him. I asked him if he loved me and with a pitiful look, he shook his head yes. It broke my heart to see him in this condition.<br />
  85. 85. Why what WEdo is important<br />
  86. 86. Questions, Comments?<br />Patti Waller<br />Marler Clark <br />1301 Second Avenue, Suite 2800<br />Seattle, WA 91801<br />pwaller@marlerclark.com<br />www.marlerclark.com<br />www.foodsafetynews.com<br />www.outbreakdatabase.com<br />

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