CDC Webinar: Foodborne illness Outbreaks and Law with Attorney Bill Marler
Foodborne DiseaseOutbreaks and theLawCDC Webinar - May 10,2012William D. Marler, Esq.
What I Tell them: Planning AGAINSTLitigation – Establish RelationshipsThey are your best friends!
To Put Things in Perspective • According to the CDC, pathogens in food cause an estimated 48 million cases of human illness annually in the United States • 125,000 hospitalized • Cause up to 3,000 deaths • Illnesses from food poisoning pose a $77.7 billion economic burden in the United States annually
Estimates Differ From Actual Counts• Annual E. coli O157:H7estimates – 62,000 illnesses – 1,800 hospitalizations – 52 deaths
Bottom Line: Most Victims Never Linked E. coli O157:H7 SalmonellaPatterns Submitted 5,376 29,168Clusters Identified 67 176Multi-state Clusters 36 152Epi Investigation 19 30Vehicle Implicated 4 8Regulatory Activity 4 8
The Long Pathway of a FoodborneIllness Investigation
The Pathway Continued If there are more ill persons than expected, an OUTBREAK might be underway
The Criminal Justice System is Broken Peanut Corporation of America • 714 persons infected with the outbreak strain of Salmonella Typhimurium were reported from 46 states and Canada • Among persons with available information, 24% reported being hospitalized • Infection contributed to nine deaths: Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2) • Parnell ordered products identified with Salmonella to be shipped and quoting his complaints that tests discovering the contaminated food were "costing us huge $$$$$"
Strict Product Liability • Strict Liability – Are they a manufacturer? – Was the product unsafe? – Did product cause injury? • Negligence • Punitive Damages /Criminal Liability – Are they a product seller? – Did they act with conscious disregard – Did they act “reasonably”? of a known safety risk?
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)
It’s called STRICT Liability for a Reason • The only defense is prevention • It does not matter if they took all reasonable precautions • If they manufacture a product that makes someone sick they are going to pay • Wishful thinking does not help
Litigation as Incentive Odwalla Jack in the Box
Worthless Excuse No. 1 “I never read the memo.” • If a document contains damning information, the jury will assume they read it, understood it, and ignored it
Role of Public and Environmental Health?• It is the Public’s Health• It is investigating “just the facts” regardless where they lead• It is to be as Transparent to the extent it can• Three Goals: 1) Stop the Outbreak 2) Determine Cause 3) Prevent the next Outbreak
How to Accomplish that Role?Caveat: Public Health is under pressure• Lawsuits? You have nothing to fear if you do your job• How to avoid lawyers1. Document your Investigation and Analysis2. Provide a through Final Report with all Relevant Documents
What to do if you do see my Letterhead• FOIA – What do I really needLocal Health Departments - Case Investigation Forms,Reportable Disease Forms, Restaurant InspectionState Health Departments - Client specific and/or redactedQuestionnaires, Product Traceback and Forward, Lab ResultsFederal Agencies – PFGE/MLVA Line List, Facility Inspections
Subscribe to Food Safety News "A stunningly researched work, "Poisoned" reads as though Clarence Darrow had written "The Jungle.” "Just in time for BBQ season, an investigative journalist traces the path of a devastating outbreak of food-borne illness linked to hamburger meat.” Email me at: firstname.lastname@example.org
Resources • Food Safety News • Real Raw Milk Facts • Foodborne Illness Outbreak Database • Marler Blog • Occupy Food Safety