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

1. 2011 Rocky Mountain Food Safety Conference Recent and Emerging Trends in Foodborne Illness Litigation Patti Waller Marler Clark May 17, 2011 Boulder, CO

3. 128,00 hospitalizations

4. 3,000 deathScallan 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

5. Foodborne Illness is Expensive $152 billion annual costs For five foodborne pathogens,* medical costs, productivity losses, and costs of premature death total: $6.9 BILLION * Campylobacter, Salmonella (non-typhoidal), E. coli O157:H7, Listeria monocytogenes, and other Shiga-toxin producing strains of E. coli. 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.

6. More than just a stomach ache According to the Food and Drug Administration, an estimated 2 to 3 percent of foodborne illness victims develop secondary long-term medical complications. That’s 1 million lingering health problems each year. See Frezen. Economic Research Service, USDA. The Economics of Food, Farming, National Resources & Rural America, www.ers.usda.gov

8. E. coli O157:H7

9. Hemolytic Uremic Syndrome

10. 3 weeks hospitalization

11. Pancreatitis

12. Damage to central nervous system

13. Liver damage

14. High blood pressureKatelyn before E. coli

16. Type 1 diabetic, insulin dependent

17. Likely to progress to end stage renal disease, requiring multiple kidney transplantsKatelyn after E. coli 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

19. Seattle based

20. 7 attorneys, and 10 staff

21. Primary focus is representing people seriously injured as a result of a foodborne illness

22. Clients in all 50 states, settlements totaling >$500,000,000

23. Advocates for food safety and public health Bill Marler

25. Very few callers describe an event that warrants further follow-up

26. Individuals who meet screening criteria are sent “new client packets”

28. Incubation

29. Duration

30. Food History

31. Medical/Laboratory Diagnostics

32. Suspected source

34. A few of the basics Plaintiff attorneys Defense attorneys Recovery of legitimate losses such as medical expenses and wages Coverage for future needs due to injury INSURANCE

36. Strict Liability A manufacturer is liable if: The product had a defect which rendered it unreasonably dangerous; The defect existed at the time the product left the manufacturer’s control; and The defect caused injury

37. Who is a Manufacturer? The definition differs slightly in every state; 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…” RCW 7.72.01 0(2); SEE ALSO Washburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)

38. Are restaurants manufacturers? 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.” See Almquist v. Finley School District No. 53, 114 Wn. App. 395 (2002).

39. Why Strict Liability? It puts pressure on the party (manufacturers) that most likely could correct the problem in the first place. It puts the cost of settlements and verdicts directly on the party (manufacturers) that profited from the defective product’s sale.

40. NEGLIGENCE and non-manufacturers 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. See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn.App. 397, 404 (1993).

42. Underinsured

43. No insurance

44. BankruptcyDepending on laws in each state, these factors may put upstream suppliers and/or distributors at risk for liability.

45. Outbreaks of S. Baildon and S. Hartford Salmonella serotype Hartford 75 ill in 15 states Illness onsets between April 30 and July 18, 2010 Salmonella serotype Baildon 80 ill in 15 states Illness onsets between May 11 and July 19, 2010 Epidemiologic evidence points toward PRODUCE consumed at multiple Taco Bell restaurants

46. Peanut Corporation of America 2008-2009 Over 700 ill persons Over 150 people hospitalized 9 deaths 4000+ products recalled $12m has been applied to claims Bankruptcy 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.

48. 79 ill persons

49. 30 hospitalizations

50. 2 deaths

51. Bacteria found in empty boxes usedfor raw eggsNO LICENSE TO OPERATE! NO INSPECTIONS! NO INSURANCE!

53. Texas Dept. of State Health Services and FDA investigation

54. 10 case-patients, 5 deaths

55. 7 of 10 consumed chopped celery

56. Product distributed to restaurants and institutions (hospitals!)

57. Indistinguishable PFGE between patients, product, and environmental swabs

58. Facility closed on October 21, 2010NOW…. MISSING IN ACTION!!

59. Reliance on New Diagnostics Pulsed Field Gel Electrophoresis (PFGE) Multi-Locus Variable Tandem Repeat Analysis (MLVA)

61. 23 case-patients in 9 states

62. 17 hospitalized

63. 2 developed Hemolytic Uremic Syndrome

64. PFGE Pattern Combo – relatively COMMON!

65. XBA – EXHX01.0074

66. BLN – EXHA26.0569MLVA – Outbreak Pattern A1 B B B B B B b

67. EPIDEMIOLOGY still rules! WRIGHT COUNTY EGGS INC From May 1 to November 30, 2010, approximately 1,939 illnesses of Salmonella Enteritidis infections occurred nationwide.

68. “New” Pathogens & Contaminated Foods “New” pathogens Non-O157 STECS Salmonella in meat MRSA and other antibiotic resistant bacteria “New” routes of exposure Intact vs. non-intact beef “New” vehicles of transmission Commercial Cookie Dough Nuts and nut products Celery and other vegetables/fruits

70. Require larger food processors and manufacturers to register with the FDA and create detailed food safety plans;

72. Establish stricter standards for the safetyof imported food;

74. Does the FSMA mean the end of Marler?

76. Nov 2010 – Feb 2011

77. Salmonella I 4,[5], 12:i:-

79. December 2010

80. Salmonella Newport

83. Ill on Sunday night

84. Died on Wednesday+ for Salmonella Typhimurium PFGE match to PCA outbreak strain 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.

85. Why what WEdo is important

86. Questions, Comments? Patti Waller Marler Clark 1301 Second Avenue, Suite 2800 Seattle, WA 91801 pwaller@marlerclark.com www.marlerclark.com www.foodsafetynews.com www.outbreakdatabase.com