Food Safety Litigation 101 with Bill Marler


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Marler Clark Managing Partner Bill Marler's 2010 presentation at the University of Arkansas School of Law

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Food Safety Litigation 101 with Bill Marler

  1. 1.
  2. 2. Real Events Happening Daily to Real People<br />76 million cases of foodborne illness annually*<br />325,000 hospitalizations*<br />5,000 deaths*<br />Medical costs, productivity losses, costs of premature death costs $6.9 billion dollars a year<br />May be as high as $200 billiondollars a year<br />* The CDC updated this information in late 2010<br />
  3. 3. Marler Clark, LLP PS<br />Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State.<br />Only a fraction of the victims who contact our office end up being represented.<br />Who do we turn away?<br />Why?<br />
  4. 4. The Chaff<br />Just like health departments we need<br />to quickly and reliably recognize <br />unsupportable claims<br />How Do We Do It?<br />
  5. 5. Basic Tools of the Trade<br />Symptoms<br />Incubation<br />Duration<br />Food History<br />Medical Attention<br />Suspected source<br />Others Ill<br />Health Department Involvement<br />
  6. 6. Matching Symptoms with Specific Characteristics of Pathogens<br />E. coli O157:H7<br />Hepatitis A<br />Salmonella<br />Shigella<br />Campylobacter<br />Vibrio <br />
  7. 7. Matching Incubation Periods<br />Incubation Periods Of Common Pathogens<br />
  8. 8. Epidemiologic Assessment<br />Time<br />Place<br />Person association<br />Part of a recognized outbreak?<br />
  9. 9. Medical Attention<br />Health care provider<br />Emergency Room<br />Hospitalization<br />
  10. 10. Health Department Involvement<br />
  11. 11. FOIA/Public Records Request<br />
  12. 12.
  13. 13. Prior Health Department Inspections<br />Improper Cooking Procedures<br />Improper Refrigeration<br />Improper Storage and Cooking Procedures<br />Improper Sanitation<br />
  14. 14. Communicable Disease Investigation<br />Reportable Disease Case Report Form<br />Enteric/viral laboratory testing results<br />Human specimens<br />Environmentalspecimens<br />
  15. 15. Molecular Testing Results<br />PFGE/MLVA<br />PulseNet<br />
  16. 16. Traceback Records<br />POS A<br />FIRM A<br />FIRM D<br />FIRM I<br />FIRM N<br />GROWERA<br />POS B<br />FIRM E<br />FIRM J<br />GROWER<br />B<br />FIRM B<br />FIRM F<br />FIRM K<br />POS C<br />GROWERC<br />FIRM G<br />GROWERD<br />FIRM O<br />FIRM L<br />POS D<br />FIRM C<br />FIRM H<br />FIRM M<br />No. of outbreaksAssoc. with firm/Total no. of outbreaks<br />Firm Name<br />Firms A,C,D,G,<br />H,I,L,M,N<br />Growers A&C<br />Firms B,E,F,J,K<br />Firm O, Grower D<br />Grower B<br />1/4<br />1/4<br />2/4<br />3/4<br />4/4<br />
  17. 17. Improper Cooking Procedures<br />A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain.  <br />Her illness was not culture-confirmed.<br />No food on site tested positive for E. coli O157:H7.  <br />Review of health inspections revealed flawsin cooking methods.<br />Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splashonto a nearby bun.<br />
  18. 18. Improper Refrigeration<br />A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak.<br />No contaminated leftover food was found.  <br />A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission.<br />Health Department report noted “raw meat stored above the Jell-O in the refrigerator.”  <br />The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator.<br />
  19. 19. Improper Storage and Cooking<br />Banquet-goers in tested positive for Salmonella.<br />Leftover food items had been discarded or tested negative.  <br />Restaurant had “pooled” dozens, if not hundreds, of raw eggs in a single bucket for storage overnight, then used them as a “wash” on a specialty dessert that was not cooked thoroughly. <br />
  20. 20. Civil Litigation – A Tort – How it Really Works<br /><ul><li>Strict liability
  21. 21. It is their fault – Period!
  22. 22. Negligence
  23. 23. Did they act reasonably?
  24. 24. Punitive damages
  25. 25. Did they act with conscious disregard of a known safety risk?</li></li></ul><li>Strict Liability for Food<br />“… a manufacturer of a food product under modern conditions impliedly warrants his goods… and that warranty is available to all who may be damaged by reason of its use in the legitimate channels of trade…”<br />Mazetti v. Armour & Co., 75 Wash. 622 (1913)<br />
  26. 26. Who is a Manufacturer?<br />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….” <br />RCW 7.72.010(2); see alsoWashburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992) <br />
  27. 27. The Legal Standard: Strict Liability<br /><ul><li>The focus is on the product; not the conduct
  28. 28. They are liable if:
  29. 29. The product was unsafe
  30. 30. The product caused the injury</li></ul>STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT.<br />
  31. 31. It’s called STRICT Liability for a Reason<br />The only defense is prevention<br />Wishful thinking does not help<br />If they manufacture a product that causes someone to be sick they are going to pay IF they get caught<br />
  32. 32. Why Strict Liability?<br />Puts pressure on those (manufacturers) that most likely could correct the problem in the first place<br />Puts the cost of settlements and verdicts directly onto those (manufacturers) that profit from the product<br />Creates incentive not to let it happen again<br />
  33. 33. Bottom Line<br />“Resistance is Futile”<br />
  34. 34. Negligence Is The Legal Standard Applied To Non-Manufacturers – in some States<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 conduits in the chain of distribution.<br />See Butello v. S.A. Woods-Yates Am. Mach. Co.,72 Wn. App. 397, 404 (1993).<br />
  35. 35. Punitive (or Exemplary) Damages<br /><ul><li>Punish the defendant for its conduct;
  36. 36. Deter others from similar conduct.</li></ul>Historically, such damages were awarded to discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior. <br />What about criminal conduct?<br />
  37. 37. The Legal Arsenal<br />Interrogatories<br />Requests for production<br />Requests for inspection<br />Request for admission<br />Third-party subpoenas<br />Depositions<br />Motions to compel<br />
  38. 38. Litigation At Work – A Bit(e) of History<br />Jack in the Box - 1993<br />Odwalla - 1996<br />
  39. 39.
  40. 40.
  41. 41.
  42. 42. A Real Life Example – A Real Trial<br />Benton Franklin Health District<br />OCTOBER 1998<br />Call from Kennewick General Hospital infection control nurse<br />Call from elementary school principal<br />
  43. 43. Preliminary Interviews<br />Kennewick General Hospital<br />Kennewick Family Medicine<br />Interview tool<br />Knowledge of community<br />Asked questions from answers<br />
  44. 44. Case Finding<br />Established communication with area laboratories, hospitals and physicians<br />Notified the Washington State Department of Health Epidemiology office<br />Established case definition early and narrowed later<br />
  45. 45. Finley Schools<br />Finley School District<br />K-5<br />Middle School<br />High School<br />Rural area<br />Water supply<br />Irrigation water<br />Septic system<br />Buses<br />
  46. 46. Epidemiologic Investigation<br />Classroom schedules<br />Bus schedules<br />Lunch schedules<br />Recess schedules<br />Case-Control Study<br />Cohort Study of Staff<br />Cohort Study of Meals Purchased<br />
  47. 47. Environmental Investigation<br />Playground Equipment<br />Puddles<br />Topography<br />Animals<br />Water system<br />Sewage system<br />
  48. 48. Hand Rails<br />Dirty Can Opener<br />Army Worms<br />Stray dogs <br />Environmental Investigation<br />
  49. 49. Environmental Investigation<br />Kitchen inspection<br />Food prep review<br />Food sample collection<br />Product trace back<br /><ul><li>Central store
  50. 50. USDA</li></li></ul><li>Results<br />9801447<br />9801446<br />9801443<br />9801462<br />9801480<br />9801482<br />9801513<br />9801455<br />9801481<br />8 confirmed casesof E. coli O157:H7<br />3 probable cases<br />1 secondary case<br />8 PFGE matches<br />
  51. 51. Results<br />Ill students in grades K-5<br />All but one ill child at a taco meal<br />No other common exposures detected<br />No ill staff members<br />
  52. 52. Results<br />Food handling errors were noted in the kitchen<br />There was evidence of undercooked taco meat<br />No pathogen found in food samples<br />
  53. 53. Conclusions<br />Point source outbreak related to exposure at Finley Elementary School<br />A source of infection could not be determined<br />The most probable cause was consuming the ground beef taco<br />
  54. 54. The Lawsuit<br />Eleven minor plaintiffs: 10 primary cases, 1 secondary case<br />Parents also party to the lawsuit, individually and as guardians ad litem <br />Two defendants: Finley School District and Northern States Beef<br />
  55. 55. The Basic Allegations<br />Students at Finley Elementary School were infected with E. coli O157:H7 as a result of eating contaminated taco meat<br />The E. coli O157:H7 was present in the taco meat because it was undercooked<br />The resulting outbreak seriously injured the plaintiffs, almost killing one of them<br />
  56. 56. At Trial: The Plaintiff’s Case<br />The State and the BFHD conducted a fair and thorough investigation<br />Final report issued by the WDOH concluded the taco meat was the most likely cause of the outbreak<br />The conclusion reached as a result of the investigation was the correct one<br />
  57. 57. More of The Plaintiff’s Case<br />There were serious deficiencies in the District’s foodservice operation<br />There were reasons to doubt the District’s explanation of how the taco meat was prepared <br />The law only requires a 51% probability to prove the outbreak’s cause-in-fact<br />
  58. 58. The School District’s Defense<br />The taco meat was safe to eat because:<br />No E. coli in it<br />We love children<br />We are always careful to cook it a lot<br />
  59. 59. The Taco Meal Recipe Card<br />
  60. 60. More of the School District’s Defense<br /><ul><li>We’ve never poisoned anyone before
  61. 61. The health departments botched investigation
  62. 62. Something else caused the outbreak
  63. 63. Someone sold us contaminated meat</li></li></ul><li>What Will a Jury Think?<br />A Jury<br />=<br />12 Consumers<br />
  64. 64. What Did This Jury Think?<br />The investigation was fair and thorough<br />More probably than not, undercooked taco meat caused the children to become ill<br />The School District was ultimately responsible for ensuring the safety of the food it sold to its students<br />
  65. 65. In The End<br />After a six week trial, plaintiffs were awarded $4,750,000<br />The District appealed the verdict on grounds that it was a product seller and one child did not eat Taco<br />We won on appeal and then in 2003 the WA State Supreme Court dismissed the District’s case<br />Final award - $6,068,612.85<br />
  66. 66. Salmonella Pot Pies<br />272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint were collected from ill persons in 35 states. Three of these patients’ pot pies yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.<br />Lesson - clear pattern of customer confusion over ready to eat and ready to cook – especially in microwaves.<br />
  67. 67. Salmonella Veggie Booty?<br /><ul><li>69 reported cases of Salmonella Wandsworth in 23 states and 14 cases of Salmonella Typhimurium in six states who became ill after consuming Veggie Booty, a puffed vegetable snack food with a raw, dried vegetable coating. A total of 61 bags were tested in twelve states. Salmonella sp. was isolated from thirteen bags of Veggie Booty.
  68. 68. Lesson– know your suppliers. </li></li></ul><li>Salmonella Chili’s<br /><ul><li>305 persons confirmed ill
  69. 69. 9 hospitalized, and 179 sought medical care
  70. 70. Restaurant closed for 11 days
  71. 71. 28 employees tested positive for salmonella
  72. 72. Depressed sales in region due to bad publicity
  73. 73. 8 months after outbreak, store closed for good</li></ul> “The investigation revealed environmental factors such as loss of hot water, loss of all water, the large number of ill employees at the facility, a general lack of hand washing and dish-machine sanitizer failure …contributed to/exacerbated the spread….<br />
  74. 74. Salmonella Tomatoes, or was it Peppers?<br /><ul><li>A final count of 1,442 ill in 43 states, D.C., and Canada, and those are the confirmed illnesses. Using CDC math - which estimates that for every documented case of salmonella in the US, another 38.5 go unreported - the total number sickened was probably closer to 50,000.
  75. 75. Lesson– FDA and CDC are woefully underfunded and understaffed.</li></li></ul><li>Botulism in a Can<br /><ul><li>As of August 24, 2007, eight cases of botulism had been reported to CDC from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). All eight persons were reported to have consumed hot dog chili sauce made by Castleberry's Food Company.
  76. 76. Castleberry’s manufacturing facility closed after decades in operation.
  77. 77. Lesson– Invest in equipment and people.</li></li></ul><li>E. coli and Campylobacter in Raw Milk<br />
  78. 78. E. coli and Hamburger – Together Again<br />In 2007 and 2008 - 26 recalls; ground beef companies recalled more than 44 million pounds of E. coli O157:H7-contaminated meat.<br />In 2006 – 186,000 pound recalled.<br />
  79. 79. Leafy Greens<br />25 E. coli outbreaks since 1995 with at least 1,000 reported illnesses and 7 deaths<br />Fresh or fresh-cut lettuce or spinach implicated as outbreak vehicle - 8 outbreaks traced back to produce from Salinas, CA<br />In 2006 alone, Dole Spinach, Taco Bell and Taco Johns - between 400 - 750 ill<br />
  80. 80. Imports - Hepatitis A<br />Chi-Chi’s restaurant in Pennsylvania – 660 people sickened, 4 deaths, 100 hospitalized, liver transplant<br />Bankruptcy<br />Settlements - $50,000,000<br />Green Onions imported and grow “in conditions of squalor” <br />Important --- don’t be too focused on imports<br />
  81. 81. Peanut Butter and Salmonella - Again<br />Over 750 persons infected with the outbreak strains of Salmonella Typhimurium have been reported from 48 states<br />Over 150 people hospitalized<br />Nine Deaths<br />Over 3000 products recalled<br />Bankruptcy<br />Criminal Prosecution<br />Declaratory Judgment<br />Lesson - ?<br />
  82. 82. QUESTIONS?<br />
  83. 83. To Learn More…<br />Bill Marler<br />Marler Clark, The Food Safety Law Firm<br />1301 2nd Avenue<br />Suite 2800<br />Seattle, WA 98101<br />1 866-770-2032<br />