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ConAgra Food Safety Council 2008 with Bill Marler


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Marler Clark attorney, Bill Marler's presentation to ConAgra about the importance of maintaining high food safety standards in food production.

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ConAgra Food Safety Council 2008 with Bill Marler

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  2. 3. Food Production is a Risky Business <ul><li>Competitive Market </li></ul><ul><li>Wall Street and Stockholder Pressures for Increasing Profits </li></ul><ul><li>Lack of Clear Reward For Marketing and Practicing Food Safety </li></ul><ul><li>Brand Awareness </li></ul><ul><li>Risk of Litigation </li></ul>
  3. 4. To Put Things in Perspective <ul><li>According to the CDC, microbial pathogens in food cause an estimated 76 million cases of human illness annually in the United States </li></ul><ul><li>325,000 hospitalized </li></ul><ul><li>Cause up to 5,000 deaths </li></ul>
  4. 5. Strict Product Liability <ul><li>Negligence </li></ul><ul><ul><li>Are you a product seller? </li></ul></ul><ul><ul><li>Did you act “reasonably”? </li></ul></ul><ul><li>Strict Liability </li></ul><ul><ul><li>Are you a manufacturer? </li></ul></ul><ul><ul><li>Was the product unsafe? </li></ul></ul><ul><ul><li>Did product cause injury? </li></ul></ul><ul><li>Punitive Damages/Criminal Liability </li></ul><ul><ul><li>Did you act with conscious disregard of a known safety risk? </li></ul></ul>
  5. 6. Who is a Manufacturer? <ul><li>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.” </li></ul>RCW 7.72.010(2); see also Washburn v. Beatt Equipment Co ., 120 Wn.2d 246 (1992)
  6. 7. <ul><li>The only defense is prevention </li></ul><ul><li>It does not matter if you took all reasonable precautions </li></ul><ul><li>If you manufacture a product that makes someone sick you are going to pay </li></ul><ul><li>Wishful thinking does not help </li></ul>It’s called STRICT Liability for a Reason
  7. 8. Why Strict Liability? Is it Unfair? <ul><li>It puts pressure on those that most likely could correct the problem in the first place </li></ul><ul><li>It puts the cost of settlements and verdicts directly on to those that profit from the product </li></ul>
  8. 9. Litigation as Incentive Jack in the Box Odwalla
  9. 10. Worthless Excuse No. 1 <ul><li>If a document contains damning information, the jury will assume you read it, understood it, and ignored it </li></ul>“ I never read the memo.”
  10. 15. ConAgra 2002 <ul><li>On June 30, 2002, the USDA Food Safety and Inspection Service (“FSIS”) announced the recall of 354,200 pounds of ground beef manufactured at the ConAgra Beef Company (“ConAgra”) plant in Greeley, Colorado. </li></ul><ul><li>The contaminated ground beef was produced at the plant on May 31, thirty days prior to the recall, and was distributed nationally to retailers and institutions. </li></ul><ul><li>USDA inspectors reportedly first found E. coli O157:H7 at the Greeley slaughterhouses on May 9, 2002, yet they apparently did nothing with this information. The bacteria were detected several more times at the slaughterhouse over the next month, the last time being June 20, 2002. </li></ul><ul><li>Over 19 Million Pounds of meat recalled. </li></ul><ul><li>More than 40 sickened, 5 HUS and 1 Death. </li></ul><ul><li>On November 15, 2002, the USDA closed the ConAgra plant in Greeley (known as Swift and Co.), due to repeated failures to prevent fecal contamination of carcasses. </li></ul>
  11. 16. 2004-2007 Peanut Butter Salmonella Outbreak <ul><li>CDC Figures as of June, 2007 </li></ul><ul><ul><li>714 culture-positive illnesses from 44 states </li></ul></ul><ul><ul><li>71 hospitalized </li></ul></ul><ul><ul><li>Illnesses reported 2005 to late 2007 </li></ul></ul>
  12. 17. 2006-2007 Peanut Butter Salmonella Outbreak <ul><ul><li>CDC estimates that over 30 times the number of confirmed cases are never reported. Likely number of cases from peanut butter: </li></ul></ul>38.6 X 714 = 27,560
  13. 18. What ConAgra Should Have Known
  14. 19. Establishment Inspection Report February 23, 2005 “ Inspection revealed the following concerns: 2 areas on production lines where filled containers of peanut butter were not completely covered from overhead contamination, an accumulation of spillage and or dust at wall/floor juncture around air handling cabinet in the ingredients room, and a temporary baffle made of cardboard in use on an empty jar line.”
  15. 20. “ . . . Inspection found the lot in question had been shipped and management cited corporate policy in refusing to allow review of production and shipping records. The current inspection was conducted in response to several complaints including most recently, number 29134, an anonymous complaint alleging poor sanitation, poor facilities maintenance, and poor quality program management. Specifics in that complaint include an alleged episode of positive findings of Salmonella in peanut butter in October of 2004 that was related to new equipment and that the firm didn’t react to, insects in some equipment, water leaking onto product, & inability to track some product.” Establishment Inspection Report February 23, 2005
  16. 21. These complaints include: 29134 dated 1/13/05, an anonymous complaint reporting several issues at the firm that in summary allege poor sanitation practices, poor quality program management and poor facilities maintenance. Establishment Inspection Report February 23, 2005
  17. 22. Planning AGAINST Litigation – Establish Relationships <ul><li>They are your best friends! </li></ul>
  18. 23. Pot Pies <ul><li>272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states. To date, three of these patients’ pot pies have yielded Salmonella I 4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern </li></ul>
  19. 24. Planning AGAINST Litigation – What Is Really Important <ul><li>1. Identify Hazards </li></ul><ul><ul><li>HACCP </li></ul></ul><ul><ul><li>Do you have qualified and committed people? </li></ul></ul><ul><li>What is the Culture? </li></ul><ul><li>Involve Vendors and Suppliers </li></ul><ul><ul><li>Do they really have a plan? </li></ul></ul><ul><ul><li>Ever visit them? </li></ul></ul>
  20. 25. Lessons Learned From An Outbreak <ul><li>You can insure the brand’s and the company’s reputation </li></ul><ul><li>Arming yourself with good, current information </li></ul><ul><li>Since you have a choice between doing nothing or being proactive, be proactive </li></ul><ul><li>Make food safety part of everything you do </li></ul><ul><li>Treat your customers with respect </li></ul>
  21. 26. What Will a Jury Think? A Jury = 12 Consumers
  22. 27. Questions
  23. 28. For More Information… <ul><li>Bill Marler </li></ul><ul><li>Marler Clark, The Food Safety Law Firm </li></ul><ul><li>1301 2nd Avenue </li></ul><ul><li>Suite 2800 </li></ul><ul><li>Seattle, WA 98101 </li></ul><ul><li>1-866-770-2032 </li></ul>