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Contaminated Food - How I do what I do!
Real Events Happening Daily to Real People
1Mead 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
And It is Happening Today
The Colorado Department of Public Health and Environment (CDPHE) issued a press release late last night announcing an outbreak of E. coli O157:H7.
The CDPHE release revealed that 80 people in 33 states have been sickened, and that epidemiological evidence is strong that the vehicle is Nestle Toll House uncooked cookie dough
Marler Clark, LLP PS
Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State.
Only a fraction of the victims who contact our office end up being represented.
Who do we turn away?
Why?
“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.”
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.
The Chaff
Just like health departments we needto quickly and reliably recognize unsupportable claims
How Do We Do It?
Basic Tools of the Trade
Symptoms Incubation Duration Food History Medical Attention Suspected source Others Ill
Health Department Involvement
Matching Symptoms with Specific Characteristics of Pathogens
E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter Vibrio
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.
Epidemiologic Assessment
Time
Place
Person association
Part of a recognized outbreak?
Medical Attention
Health care provider
Emergency Room
Hospitalization
Health Department Involvement
Communicable Disease Investigation
Reportable Disease Case Report Form
Enteric/viral laboratory testing results– Human specimens– Environmental
specimens
Molecular Testing Results
PFGE
PulseNet
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
GROWERA
GROWERA
GROWERB
GROWERB
GROWERD
GROWERD
GROWERC
GROWERC
Firm NameFirms A,C,D,G,H,I,L,M,NGrowers A&CFirms B,E,F,J,KFirm O, Grower DGrower B
No. of outbreaksAssoc. with firm/
Total no. of outbreaks
1/41/42/43/44/4
Prior Health Department Inspections
Improper Cooking Procedures
Improper Refrigeration
Improper Storage and Cooking Procedures
Improper Sanitation
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 flawsin cooking methods.
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.
Improper Storage and Cooking
Banquet-goers in 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.
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?
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)
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)
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
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
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
Bottom Line
“Resistance is Futile”
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).
Punitive (or Exemplary) Damages:
Punish the defendant for its conduct;
Deter others from similar conduct.
Historically, such damages were awarded to Historically, such damages were awarded to discourage intentional wrongdoing, wanton and discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior.reckless misconduct, and outrageous behavior.
The Legal Arsenal
Interrogatories Requests for
production Requests for
inspection Request for
admission Third-party
subpoenas Depositions Motions to compel
Litigation At Work – A Bit(e) of History
Jack in the Box - 1993Odwalla - 1996
The Plaintiff
A Real Life Example
Benton Franklin Health DistrictOCTOBER 1998
Call from Kennewick General Hospital infection control nurse
Call from elementary school principal
Preliminary Interviews
Kennewick General Hospital
Kennewick Family Medicine
Interview tool– Knowledge of
community– Asked questions
from answers
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
Finley Schools
Finley School District
– K-5
– Middle School
– High School Rural area
– Water supply
– Irrigation water
– Septic system
– Buses
Epidemiologic Investigation
Classroom schedules Bus schedules Lunch schedules Recess schedules Case-Control Study Cohort Study of Staff Cohort Study of Meals
Purchased
Environmental Investigation
Playground Equipment
– Puddles
– Topography
– Animals
Water system
Sewage system
Hand Rails
Dirty Can Opener
Army Worms
Stray dogs
Environmental Investigation
Environmental Investigation
Kitchen inspection
Food prep review
Food sample collection
Product trace back
Central store
USDA
Results
9801447
9801446
9801443
9801462
9801480
9801482
9801513
9801455
9801481
8 confirmed casesof E. coli O157:H7
3 probable cases
1 secondary case
8 PFGE matches
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
Results
Food handling errors were noted in the kitchen
There was evidence of undercooked taco meat
No pathogen found in food samples
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
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
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
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
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
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
The Taco Meal Recipe Card
It’s not our fault, someone sold us contaminated beef
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
What Will a Jury Think?
A Jury = 12 Consumers
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
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
Why these Cases Seldom Go to Trial
QUESTIONS?
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