Food safety attorney Bill Marler's talks about the process of litigating successful foodborne illness cases.

2. Marler Clark, LLP PS
 Since 1993 Marler Clark has
represented thousands of
legitimate food illness victims
in over 30 States. Settlements
and Verdicts – total nearly
$300,000,000.
 Only a fraction of the victims
who contact our office end
up being represented.
 Who do we turn away?

3. There is a Worm in my Freezer!
“I recently found a whole,
2-cm long worm packaged
inside a Lean Cuisine frozen
dinner.
I have the worm in my freezer.
I'm interested in discussing my
rights in this matter. Could you
please contact me, or refer me
to a firm that may be able to
give me assistance? ”

4. “Christening” the Carpet
“I opened a box of Tyson
Buffalo wings and saw an
unusually shaped piece of
chicken and I picked it up.
When I saw that the ‘piece’
had a beak, I got sick to my
stomach. My lunch and diet
coke came up and I
managed to christen my
carpet, bedding and clothing.
I want them to at least pay for
cleaning my carpet etc.”

5. Lending a Helping Hand
“My husband recently
opened a bottle of salsa
and smelled an unusual
odor but chose to eat it
regardless, thinking that it
was just his nose. He found
what appeared to be a
rather large piece of animal
or human flesh. He became
very nauseated and I feel
the manufacturer should be
held responsible.

6. The Chaff
Just like health departments we need
to quickly and reliably recognize
unsupportable claims
How Do We Do It?

7. Basic Tools of the Trade
 Symptoms
 Incubation
 Duration
 Food History
 Medical Attention
 Suspected source
 Others Ill
Health Department Involvement

8. Matching Incubation Periods
Incubation Periods Of Common Pathogens
PATHOGEN INCUBATION PERIOD
Staphylococcus aureus 1 to 8 hours, typically 2 to 4 hours.
Campylobacter 2 to 7 days, typically 3 to 5 days.
E. coli O157:H7 1 to 10 days, typically 2 to 5 days.
Salmonella 6 to 72 hours, typically 18-36 hours.
Shigella 12 hours to 7 days, typically 1-3 days.
Hepatitis A 15 to 50 days, typically 25-30 days.
Listeria 3 to 70 days, typically 21 days
Norovirus 24 to 72 hours, typically 36 hours.

9. Matching Symptoms with Specific
Characteristics of Pathogens
 E. coli O157:H7
 Hepatitis A
 Salmonella
 Shigella
 Campylobacter
 Vibrio

10. Epidemiologic Assessment
 Time
 Place
 Person association
 Part of a recognized
outbreak?

11. Medical Attention
 Health care provider
 Emergency Room
 Hospitalization

12. Health Department Involvement

13. FOIA/Public Records Request

14. Communicable Disease Investigation
 Reportable Disease
Case Report Form
 Enteric/viral
laboratory
testing results
– Human
specimens
– Environmental
specimens

15. Molecular Testing Results
 PFGE and PulseNet
 CaliciNet

16. Traceback Records
POS APOS A
POS BPOS B
POS CPOS C
POS DPOS D
FIRM AFIRM A
FIRM BFIRM B
FIRM CFIRM C
FIRM DFIRM D
FIRM EFIRM E
FIRM GFIRM G
FIRM HFIRM H
FIRM FFIRM F
FIRM IFIRM I
FIRM JFIRM J
FIRM KFIRM K
FIRM LFIRM L
FIRM MFIRM M
FIRM NFIRM N
FIRM OFIRM O
GROWER
A
GROWER
A
GROWER
B
GROWER
B
GROWER
D
GROWER
D
GROWER
C
GROWER
C
Firm Name
Firms A,C,D,G,
H,I,L,M,N
Growers A&C
Firms B,E,F,J,K
Firm O, Grower D
Grower B
No. of outbreaks
Assoc. with firm/
Total no. of outbreaks
1/4
1/4
2/4
3/4
4/4

17. Prior Health Department Inspections
 Improper Cooking
Procedures
 Improper Refrigeration
 Improper Storage
and Cooking Procedures
 Improper Sanitation

18. Improper Cooking Procedures
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
splash onto a nearby bun.
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
splash onto a nearby bun.
 A young girl suffered HUS after eating a
hamburger from a midsized southern
California fast-food chain.
 Her illness was not culture-confirmed.
 No food on site tested positive
for E. coli O157:H7.
 Review of health inspections revealed flaws
in cooking methods.

19. Improper Refrigeration
 A Chinese buffet-restaurant in Ohio was
the suspected source of an E. coli
O157:H7 outbreak.
 No contaminated leftover food was
found.
 A number of ill patrons were children.
Jell-O was suspected as the vehicle of
transmission.
 Health Department report noted “raw
meat stored above the Jell-O in the
refrigerator.”
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.

20. Improper Storage and Cooking
 Banquet-goers in southeastern
Washington tested positive for
Salmonella.
 Leftover food items had been
discarded or tested negative.
 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.

22. Civil Litigation – A Tort – How it Really Works
 Strict liability
 It is their fault – Period!
 Negligence
 Did they act reasonably?
 Punitive damages
 Did they act with conscious disregard
of a known safety risk?

23. Strict Liability for Food – a Bit(e) of History
“…“… 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…”
Mazetti v. Armour & Co.,
75 Wash. 622 (1913)

24. 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)

25. The Legal Standard: Strict Liability
STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT.
 The focus is on the product; not the conduct
 They are liable if:
 The product was unsafe
 The product caused the injury

26. It’s called STRICT Liability for a Reason
 The only defense is prevention
 Wishful thinking does not help
 If they manufacture a product
that causes someone to be sick
they are going to pay IF they
get caught

27. Why Strict Liability?
 Puts pressure on those
(manufacturers) that
most likely could
correct the problem
in the first place
 Puts the cost of
settlements and
verdicts directly onto
those (manufacturers)
that profit from the
product
 Creates incentive not
to let it happen again

28. Bottom Line
“Resistance is Futile

29. 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.
Negligence Is The Legal Standard Applied
To Non-Manufacturers
See Butello v. S.A. Woods-Yates Am. Mach. Co.,
72 Wn. App. 397, 404 (1993).

30. But, Litigation Can Work – A History Lesson
Jack in the Box - 1993
Odwalla - 1996

34. Punitive (or Exemplary) Damages:
 Punish the defendant
for its conduct;
 Deter others from
similar conduct.
Historically, such damages were awarded toHistorically, such damages were awarded to
discourage intentional wrongdoing, wanton anddiscourage intentional wrongdoing, wanton and
reckless misconduct, and outrageous behavior.reckless misconduct, and outrageous behavior.

35. William D. Marler
6600 Columbia Tower
701 Fifth Avenue
Seattle, Washington 98104
(206) 346-1890
bmarler@marlerclark.com
Questions?

36. The Legal Arsenal
 Interrogatories
 Requests for
production
 Requests for
inspection
 Request for
admission
 Third-party
subpoenas
 Depositions
 Motions to compel

37. A Real Life Example
Benton Franklin
Health District
OCTOBER 1998
 Call from Kennewick
General Hospital infection
control nurse
 Call from elementary school principal

38. Preliminary Interviews
 Kennewick General
Hospital
 Kennewick Family
Medicine
 Interview tool
– Knowledge of
community
– Asked questions
from answers

39. Case Finding
 Established communication with area
laboratories, hospitals and physicians
 Notified the Washington State Department
of Health Epidemiology office
 Established case definition early and
narrowed later

40. Finley Schools
 Finley School District
– K-5
– Middle School
– High School
 Rural area
– Water supply
– Irrigation water
– Septic system
– Buses

41. Epidemiologic Investigation
 Classroom schedules
 Bus schedules
 Lunch schedules
 Recess schedules
 Case-Control Study
 Cohort Study of Staff
 Cohort Study of Meals
Purchased

42. Environmental Investigation
 Playground Equipment
– Puddles
– Topography
– Animals
 Water system
 Sewage system

43.  Hand Rails
 Dirty Can Opener
 Army Worms
 Stray dogs
Environmental Investigation

44. Environmental Investigation
 Kitchen inspection
 Food prep review
 Food sample collection
 Product trace back
 Central store
 USDA

45. Results
9801447
9801446
9801443
9801462
9801480
9801482
9801513
9801455
9801481
 8 confirmed cases
of E. coli O157:H7
 3 probable cases
 1 secondary case
 8 PFGE matches

46. Results
 Ill students in grades K-5
 All but one ill child
at a taco meal
 No other common
exposures detected
 No ill staff members

47. Results
 Food handling errors
were noted in the
kitchen
 There was evidence
of undercooked taco
meat
 No pathogen found
in food samples

48. Conclusions
 Point source outbreak
related to exposure at
Finley Elementary School
 A source of infection
could not be determined
 The most probable cause
was consuming the
ground beef taco

49. The Lawsuit
 Eleven minor plaintiffs:
10 primary cases, 1 secondary case
 Parents also party to the lawsuit, individually
and as guardians ad litem
 Two defendants: Finley School District and
Northern States Beef

50. The Basic Allegations
 Students at Finley Elementary
School were infected with E. coli
O157:H7 as a result of eating
contaminated taco meat
 The E. coli O157:H7 was present
in the taco meat because it was
undercooked
 The resulting outbreak seriously
injured the plaintiffs, almost
killing one of them

51. At Trial: The Plaintiff’s Case
 The State and the BFHD conducted
a fair and thorough investigation
 Final report issued by the WDOH
concluded the taco meat was the
most likely cause of the outbreak
 The conclusion reached as a result
of the investigation was the correct
one

52. More of The Plaintiff’s Case
 There were serious deficiencies in the District’s
foodservice operation
 There were reasons to doubt the District’s
explanation of how the taco meat was
prepared
 The law only requires a 51% probability to
prove the outbreak’s cause-in-fact

53. The School District’s Defense
 The taco meat was
safe to eat because:
– We love children
– We are always
careful to cook it
a lot

54. The Taco Meal Recipe Card
It’s not our fault, someone sold us
contaminated beef

55. More of the School District’s Defense
• We’ve never poisoned
anyone before
• The health departments
botched the investigation
and jumped to a hasty
conclusion
• Something else caused
the outbreak

56. What Will a Jury Think?
A Jury = 12 Consumers

57. What Did This Jury Think?
 The investigation was fair
and thorough
 More probably than not,
undercooked taco meat
caused the children to
become ill
 The School District was
ultimately responsible for
ensuring the safety of the
food it sold to its students

58. In The End
 After a six week trial,
plaintiffs were awarded
$4,750,000
 The District appealed the
verdict on grounds that
product liability law did
not apply
 September 2003 the WA
State Supreme Court
dismissed the District’s
case
 Final award - $6,068,612.85

59. Real Events Happening Daily to Real People
1
Mead PS, et al., Food-related illness and death in the United States,
Emerg Infect Dis. 5:607-614. 1999.
2
Buzby, et al. Product Liability and Microbial Foodborne Illness
(2001)ERS Agricultural Economic Report No. 799.
 76 million cases of foodborne
illness annually1
 325,000 hospitalizations
 5,000 deaths
 Medical costs, productivity
losses, costs of premature
death costs 6.9 billion dollars
a year2

60. 6600 Bank of America Tower
701 Fifth Avenue
Seattle, Washington 98104
1-800-884-9840
www.marlerclark.com
Questions?