Food Poisoning and Other Foodborne Harm: Claims and Defenses

Food Poisoning and Other Foodborne Harm:

Claims and DefensesIdentifying All Potential Defendants and Causes of Action

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TUESDAY, DECEMBER 17, 2019

Presenting a live 90-minute webinar with interactive Q&A

Bruce Clark, Partner, Marler Clark, Seattle

Ashley T. Davis, Attorney, Allen & Allen, Richmond, Va.

Alan M. Maxwell, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta

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5

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How to Analyze the Scope of an Outbreak,

Access Liability and Causation, and

Calculate Damages

Bruce Clark and

Alan M. “Al” Maxwell

The scope of the problem/outbreak

Liability of the defendant/client “globally” and

“specifically”

Determine insurance coverage

Determine liability of other parties - long distribution chain

Assess liability and damages for specific claimants

Evaluate counsel (number of cases in this outbreak and

others, trial history, etc.)

Mass torts

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Outbreak 101

Outbreaks involve two or more

illnesses from common source

Pathogens

› STEC / E. coli O157:H7, O145,

etc.

› Salmonella

› Listeria monocytogenes

› Clostridium botulinum

› Hepatitis

Virulence varies widely among

pathogens

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E. coli O157:H7

Salmonella

Hepatitis A

Analyzing the scope of the problem

Listeria

monocytogenes

Gather records from CDC, FDA/USDA, state & local

health departments, Departments of Agriculture and

laboratories

Obtain claimant specific records with HIPAA releases

and FOIA requests

Match known claims with “confirmed” cases on the CDC

line list

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Analyzing the scope of the problem (cont.)

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Assessing Liability (cont.)

The scope (number of claimants) is always potentially

greater than the number of CDC confirmed cases (line

list)

› Claimant not tested for pathogen

› Claimant received antibiotics before being tested for pathogen

› 10-20% of patients that have infections of organisms such as E.

coli O157:H7 will nonetheless test negative for the pathogen

Account for number of minors on the list and unknown

potential claimants

Cannot assume that potential claimants had mild

illnesses

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Analyzing the scope of the problem (cont.)

“Global” liability - is the defendant/client really the

source of the outbreak?

“Specific” liability - is defendant/client responsible for the

claimant’s illness?

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Assessing Liability

Most of the work is done

by federal, state or local

health agencies

› CDC

› FDA

› USDA-FSIS

› State Health Departments

› Municipal Health

Departments

Mandatory reporting of

infectious diseases

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77 IL ADC 690.100, et. seq.:

Control of Communicable Disease

Code

› E. coli infections (E. coli O157:H7

and other Shiga toxin-producing

E. coli, enterotoxigenic E. coli,

enteropathogenic E. coli and

enteroinvasive E. coli) must be

reported by a physician, or any

other person having knowledge of

a known or suspected case or

carrier, as soon as possible during

normal business hours, but within

24 hours (i.e., within 8 regularly

scheduled business hours after

identifying the case), to the local

health authority. 77 IL ADC

690.100; 77 IL ADC 690.200

Assessing Liability (cont.)

FOIA/Open Records Act Requests

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Assessing Liability (cont.)

Food History questionnaires -

“Knife and Fork” forms

Stool culture reports – PFGE /

MLVA/WGS analysis

Case Control Studies / Reports

State / CDC Line Lists

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Assessing Liability (cont.)

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Assessing Liability (cont.)

Long Distribution Chain

Traceback is necessary all the way to the field or source

› Focus of suit is usually on the processor

Beef slaughter facility

Leafy greens processing facility

Possible distinction in produce cases depending on

whether the product is “changed” during the processing

› Spinach (washed)

› Lettuce (shredded)

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Assessing the Liabilities of Other Parties

Inventory Management with

the Anti-Terrorism Act

Anti-terrorism act –

Changes to 21 USC § 350cSec. 414 -- ``(b) Regulations Concerning Recordkeeping.--The Secretary, in

consultation and coordination, as appropriate, with other Federal departments and

agencies with responsibilities for regulating food safety, may by regulation establish

requirements regarding the establishment and maintenance, for not longer than two

years, of records by persons (excluding farms and restaurants) who manufacture,

process, pack, transport, distribute, receive, hold, or import food, which records are

needed by the Secretary for inspection to allow the Secretary to identify the

immediate previous sources and the immediate subsequent recipients of food,

including its packaging, in order to address credible threats of serious adverse

health consequences or death to humans or animals…”

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Assessing the Liability of Other Parties (cont.)

The liability of various parties can

differ even for the same outbreak

Nebraska Beef recall July 2008

› GA cases v. OH/MI cases

Funding agreement between

Defendants

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Assessing the Liability of Other Parties (cont.)

Additional Insured Endorsements

Named Insured

Vendors Endorsements

Insured Contracts

Lot or Batch Provisions

Indemnity Tenders / Notice

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Coverage Issues

“Women and Children First”

Opportunistic infections impacting

children, elderly and immuno-

compromised individuals more

seriously

Hemolytic Uremic Syndrome

(“HUS”) – long term kidney issues

Irritable Bowel Syndrome (“IBS) –

emerging claim associated with GI

illnesses

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Determining Damages

Obtain all medical records as soon as possible

Is there a possibility of future complications

Irritable Bowel Syndrome (“IBS”) symptoms frequently last

several years

Hemolytic Uremic Syndrome (“HUS”) is a frequent complication

of more serious E. coli O157:H7 claims associated with serious

renal and neurologic injury

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Determining Damages (cont.)

Early expert analysis is important

Early or later negotiation may depend on the illness

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Dealing with Claims with Potential

Long-Term Medical Issues

IBS patients usually improve within one to two years but

frequently have symptoms for many years

Early analysis of HUS cases is important

› The decision to negotiate early will depend on medical picture

› Probability of future complications is usually not known until at

least one year after the acute phase of the illness

› Laboratory results after the acute phase can dramatically

increase or decrease the value of the claim

Structured Settlement/Medical Trusts

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Dealing with Claims with Potential

Long-Term Medical Issues

Claim Considerations

Ashley T. Davis, Esq.

Allen, Allen, Allen & Allen (Virginia)

ashley.davis@allenandallen.com

(804) 257-7526

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Claim Considerations

A. Negligence

B. Res ipsa loquitor

C. Strict liability

D. Application of product liability principles

E. Warranty claims

F. Consumer Protection Act claims

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Negligence

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Types of Negligence Claims

1. Negligence

2. Failure to Warn

3. Negligence Per Se

4. Res Ipsa Loquitor

5. Gross Negligence

6. Willful and Wanton Conduct

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Elements of Negligence

1. Duty

2. Breach

3. Causation

4. Damages

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Elements of Negligence

1. Duty

2. Breach

3. Causation

4. Damages

• what did the defendant do wrong?

• did the defendant have knowledge?

• was the harm foreseeable?

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Elements of Negligence

1. Duty

2. Breach

3. Causation

4. Damages

• what happened to the product?

• delayed onset of symptoms

• other possible causes (other foods, environment)

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Gross Negligence / Willful and Wanton Conduct

• Freedom of Information Act Requests• FDA (facility inspections)

• State and local health departments (restaurant inspections)

• Product Recalls

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Gross Negligence / Willful and Wanton Conduct

• Customer Complaints• Yelp

• Google Reviews

• Product Reviews (Amazon, etc.)

• Internal Documents• Discovery

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Negligence Per Se / Statutory Violations

• Food Safety Acts

• Safety Statutes

• Administrative Regulations

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Failure to Warn

• Plaintiff filed suit against candy manufacturer alleging that he suffered dental, jaw, and hearing injuries when he bit into an undeveloped peanut in one of the manufacturer's candy bars.

• Summary judgment:

• Granted as to negligence, strict liability, and breach of warranty.

• Denied as to the failure to warn claim.

Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008)

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Res Ipsa Loquitor

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Res ipsa loquitor

• Latin for “the thing speaks for itself”

• Infers negligence from the nature of an accident or injury in the absence of direct evidence of the defendant’s conduct

• The cause of the injury must be in the defendant’s exclusive control

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Res ipsa loquitor

Customer showed that the restaurant food that he ate was the only food he had eaten in hours and it made him sick.

Trial judge should have submitted the case to the jury on the theory of res ipsa loquitor.

McPherson v. Capuano & Co., 31 Ga. App. 82, 121 S.E. 580 (1923)

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No Res Ipsa Loquitorcausation

Customer alleged that she got sick at casino, but she:

• ate multiple items and did not know which one made her sick,

• did not have doctor’s opinion to support causation, and

• had pre-existing health conditions that could have caused her stomach problems

Folly v. Tunica-Biloxi Indians of La., 2003 Tunica-Biloxi Trib. LEXIS 1 (2003)

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Exclusive Control• Sharp metal blade inside hot

dog

• Plaintiff bit into hot dog, broke a few teeth and cut his tongue

• Court denied manufacturer’s motion for summary judgment

Watkins v. Gwaltney of Smithfield, Ltd., No. 3:16-CV-2049, 2019 U.S. Dist. LEXIS 193060 (M.D. Pa. Nov. 6, 2019)

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No Exclusive Control

• Sausage was run through a prison metal detector

• No res ipsa loquitor against manufacturer

Foote v. Polk, No. 16-cv-641-wmc, 2019 U.S. Dist. LEXIS 3846 (W.D. Wis. Jan. 9, 2019)

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Strict Liability

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Strict Liability

• Products liability law evolved from early common law to protect consumers from tainted food.

• Strict liability makes the seller an insurer of the product’s safety, even if the seller exercised all reasonable care and there was no privity of contract between the victim and the target defendant.

• Dates to England in 1266. First case in 1913. By 1960, strict liability as to defective food and drink was the majority rule.

Koster v. Scotch Assocs., 273 N.J. Super. 102, 109, 640 A.2d 1225, 1229 (Super. Ct. 1993), citing Prosser and Keaton on Torts §97 (5th ed.)

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Strict Liability – Elements

1. the product was defective;

2. the defect existed when it left the defendant’s hands;

3. the defective product was unreasonably dangerous to the user or consumer;

4. the consumer was injured;

5. the defect was the proximate cause of the plaintiff’s injuries.

Harper v. United States Beef Corp., No. 15-cv-3112, 2018 U.S. Dist. LEXIS 139096 (C.D. Ill. July 23, 2018); ; Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274 (D.P.R. 2015); Matthews v. Campbell Soup Co., 380 F. Supp. 1061, 1062 (S.D. Tex. 1974)

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Products Liability

44

Products Liability

1. Defective Design

2. Defective Manufacture

3. Failure to Warn

• Product might be defective if it fails to match the average quality of like products.

Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274 (D.P.R. 2015)

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Approaches to Strict Liability

Strict Liability

• Purpose: to insure that costs of injuries resulting from defective products are borne by the manufacturers that put the products on the market rather than by injured persons who are powerless to protect themselves.

Negligence

• Compliance with industry standards is evidence of due care.

• If an injury-causing product complies with regulatory safety standards, the product is not defective unless a reasonably prudent product seller could and would have taken additional precautions.

Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008), citing Kan. Stat. Ann. § 60-3304(a)

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Warranties

47

Warranty Claims

Express Warranty

Implied Warranties

1. Warranty of Merchantability

2. Warranty of Fitness for a Particular Purpose

3. Warranty of Wholesomeness

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Express Warranty

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Express Warranty - Requirements

1. Affirmative statement of fact

2. Made by the seller to the buyer

3. Relating to the goods

4. Reasonable reliance*

5. Notice*

Reynolds v. S & D Foods, No. 91-1442-PFK, 1993 U.S. Dist. LEXIS 3040 (D. Kan. Feb. 8, 1993), citing K.S.A. § 84-2-313 (requires reliance); Yates v. Pitman Mfg., Inc., 257 Va. 601, 606, 514 S.E.2d 605 (1999) (no reliance required); McMorrow v. Mondelez Int'l, Inc., No. 17-cv-02327-BAS-JLB, 2018 U.S. Dist. LEXIS 140078 (S.D. Cal. Aug. 17, 2018) (plaintiffs alleged excessive sugar in belVita products; court dismissed express warranty claims)

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Express Warranty – Sources

• Product Packaging

• Advertisements

• Menu Descriptions

• Website and Marketing Materials

• Verbal Warranties

Simmons v. Washing Equip. Tech., 51 A.D.3d 1390, 857 N.Y.S.2d 412, 413 (4th Dep't 2008) (defendant’s product label created an express warranty).

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Express Warranty

Actionable

biologically appropriate

fresh regional ingredients

happy, healthy and strong

Not Actionable

the manufacturer is dedicated to the highest standards of authenticity, nutritional integrity, and

food safety

Leppert v. Champion Petfoods USA Inc., No. 18 C 4347, 2019 U.S. Dist. LEXIS 7585 (N.D. Ill. Jan. 16, 2019) (cat food contained heavy metals and BPA, a industrial chemical); see also Adkins v. Nestle Purina PetCare Co., 973 F. Supp. 2d 905 (N.D. Ill. 2013) (statement that the dog food was “wholesome and nutritious“ was an express warranty)

53

Express Warranty

“Washed & Ready-to-Enjoy!”

Barber v. Sam's Club E., Inc., No. 6:17-CV-00035, 2017 U.S. Dist. LEXIS 166453 (W.D. Va. Oct. 6, 2017)

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Express Warranty

Fruit Snacks come from “the highest quality fruit proudly grown on family farms” in a “tradition of wholesome goodness.”

Atik v. Welch Foods, Inc., 2016 U.S. Dist. LEXIS 106497 (E.D.N.Y. Aug. 5, 2016); Atik v. Welch Foods, Inc., No. 15-CV-5405 (MKB) (VMS), 2016 U.S. Dist. LEXIS 136056 (E.D.N.Y. Sep. 30, 2016) (agreeing that statements are actionable)

55

Magnuson-Moss Act – Purpose and Scope

• Federal consumer protection act. Does not require manufacturers to give warranties, but if they do, the act imposes minimum standards.

• “Consumer” is a buyer (other than for purposes of resale) of any consumer product

• “Consumer product” is any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes.

15 U.S.C. § 2301, et seq.; 15 U.S.C. § 2302(a); C.F.R. § 700.1(a)

56

Implied Warranties

57

Implied Warranty of Merchantability

A merchant that sells goods impliedly warrants that the goods are merchantable; i.e.,

• that the goods will pass without objection in the tradeunder the contract description;

• that the goods are fit for the ordinary purposes for which such goods are used; and,

• that the goods are adequately contained, packaged, and labeled as the agreement requires.

Va. Code Ann. § 8.2-314

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Implied Warranty of Fitness for a Particular Purpose• Where a seller at the time of contracting has reason to

know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to furnish suitable goods, there is an implied warranty that the foods shall be fit for such purpose.

• Particular Purpose vs. Ordinary Use

Va. Code Ann. § 8.2-315; Reynolds v. S & D Foods, No. 91-1442-PFK, 1993 U.S. Dist. LEXIS 3040 (D. Kan. Feb. 8, 1993), citing Comment to K.S.A. § 84-2-315.

59

Implied Warranty of Wholesomeness• When a person offers food or beverage for sale to

the public, he warrants that the food or beverage is free of foreign substances and is fit for human consumption.

Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274 (D.P.R. 2015); Bussey v. E.S.C. Rests. Inc., 270 Va. 531, 620 S.E.2d 764 (2005) (verdict for plaintiff who got sick after eating “bad meat” at a restaurant); Matthews v. Campbell Soup Co., 380 F. Supp. 1061 (S.D. Tex. 1974)

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Wholesomeness ≈ Strict Liability

• The doctrine of implied warranty is a derivative of strict liability.

Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274, 275 (D.P.R. 2015)

• With regard to food, it is no consequence that an action proceeds on the theory of strict liability of one who prepares and sells a food product, a tort action, rather than the theory of implied warranty of fitness for consumption.

Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008)

61

Potential Defendants

• Manufacturers

• Packers

• Intermediate Dealers

• Retailers

• each impliedly warrants that the food is wholesome and fit for immediate human consumption, whether it is sold in bulk or in sealed packages or containers.

Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008)

62

Defenses to Implied Warranties

63

Foreign-Natural Test

• No recovery as a matter of law if the substance in the food that causes the injury was “natural” to the food served.

• Possible recovery if the object was “foreign” to the food.

Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144 (Cal. 1936) (created the test); Musso v. Picadilly Cafeterias, Inc., 178 So. 2d 421, 426 (La. App. 1965); Battiste v. St. Thomas Diving Club, Inc., Civil No. 78-212, 1979 U.S. Dist. LEXIS 7697 (D.V.I. Apr. 10, 1979)

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Reasonable Expectations Test

• Whether the buyer could reasonably expect to find the substance in the food consumed is a question for the trier of fact.

Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 103 N.W.2d 64 (Wis. 1960); Battiste v. St. Thomas Diving Club, Inc., Civil No. 78-212, 1979 U.S. Dist. LEXIS 7697 (D.V.I. Apr. 10, 1979), citing cases.

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Examples

66

Bacteria

Hotel had to show that the harmful bacteria found in the oysters served to consumer was natural to oysters and that presence of harmful bacteria was common knowledge and within the reasonable expectation of consumer.

Kilpatrick v. Superior Court, 233 Cal. App. 3d 233, 277 Cal. Rptr. 230 (1991) (reasonable expectations test)

67

California Hybrid

• Rejected the foreign-natural test that California adopted in 1936 but did not adopt the reasonable expectations test.

• Dismissed plaintiff’s breach of implied warranty and strict liability claims because bones are natural in chicken dishes, but allowed plaintiff to claim negligent preparation.

Mexicali Rose v. Superior Court, 1 Cal. 4th 617, 4 Cal. Rptr. 2d 145, 822 P.2d 1292 (1992) (bone in a chicken enchilada in a restaurant)

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Consumer Protection Act Claims

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Consumer Protection Act Claims

Consumer protection laws were enacted to:

(1)protect consumers from unfair and deceptive trade practices used by merchants, and

(2)deter the use of those practices.

National Consumer Law Center has published a state-by-state summary of CPA laws and protections:

https://www.nclc.org/images/pdf/udap/udap-appC.pdf.

70

Prohibited Acts – defined by statute

Examples:

• Misrepresenting that goods and services have certain characteristics, ingredients, uses, or benefits

• Mispresenting that goods and services are of a particular standard or quality

• Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction (catch-all provision)

Va. Code Ann. § 59.1-200

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Advantages to Plaintiffs

Most states allow a private right of action

Provides an effective tool in combating common defenses such as:

• contributory/comparative negligence

• liability waivers

• the economic loss doctrine

Most states construe laws liberally in favor of the consumer to achieve the purpose of the Act

72

Possible Civil Remedies

• Actual damages

• Multiplier of damages (double or triple)

• Pre-judgment interest on damages

• Punitive damages

• Attorney’s fees

• Costs

• Litigation expenses

• Civil penalties for violations regardless of actual harm

• Nominal damage for any violation

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Plaintiff’s Burden

Are parties covered by the Act?

• Is the plaintiff a “consumer”?

• Is the defendant a “merchant” or “supplier” or “warrantor”?

Is the trade practice protected or prohibited by the Act?

• Check the definitions of “goods” and “services”

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“Supplier”

• a seller, lessor, licensor, or professional who advertises, solicits, or engages in consumer transactions, or a manufacturer, distributor, or licensor who advertises and sells, leases, or licenses goods or services to be resold, leased, or sublicensed by other persons in consumer transactions.

Va. Code Ann. § 59.1-198

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Defenses – Procedural

• Heightened pleading standard as with fraud, FRCP 9

• Exhaustion of administrative remedies

• Notice requirement

• Specific jurisdiction or venue

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Defenses – Substantive

• Damages (economic, non-economic)

• Exemptions

• Double recovery

• Who can recover? Just plaintiff, or her estate?

• Loss of consortium

Insurance Coverage

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BANKRUPTCY

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Matrices can be used to assign values based upon

various medical facts

› Status as “Confirmed” case

› Days hospitalized

› Days dialyzed

PCA Salmonella Outbreak

› Hundreds of claimants

› Insufficient coverage

› Bankruptcy Court used a matrix to classify claims and distribute

available proceeds based on discreet criteria

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Mass Torts

Peter Pan Salmonella Outbreak

› Thousands of claimants

› Matrix created to classify claims – largely employed to address

less serious claims (i.e., consumption of implicated product,

appropriate symptoms, modest specials and no positive

confirmation to outbreak strain

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Mass Torts (cont.)

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PCA Settlement Valuation Guidelines

Treatment Category * Days Ill Valuation Range*

1-2 ER/Office Visits A/B < 7 days $20-$25K

1-2 ER/Office Visits A/B > 7 days $25K-30K

3+ ER/Office Visits A/B < 7 days $30K-$35K

3+ ER/Office Visits A/B > 7 days $35K-$50K

1 Day Hospital A/B $35K-$50K

2 Days Hospital A/B $45K-$65K

3 Days Hospital A/B $50K-$85K

4 Days Hospital A/B $60K-$125K

5 Days Hospital A/B $90K-$150K

6+ Days Hospital A/B $100K-$200K

*Category A and B claims were claims for Confirmed and Probable cases,

respectively

*Category C Claims – initial value decreased $5,000

*The longer the hospitalization/illness, the more subjective the valuation

*Accounting for age, medical costs, and sequelae

Mass Torts (cont.)

Engage Plaintiff/Defense Lawyers

› Establish a resolution dialogue

› Discourage suit filings

› Maintain credibility

Matrix

› Stress qualifying criteria and documentation

› Insist lawyers work up their cases and demonstrate proof to

some degree

› Maintain a “case by case” mentality

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Settlement Strategy Execution

Mediations

› Invaluable tool in these cases – informs both sides

› Don’t underestimate the power of apology

› An unsuccessful mediation is not a waste of time

MDL Option

› Empowers case management

› Reduces defense costs

› Eliminates inconsistent treatment

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Settlement Strategy Execution (cont.)

Class Actions

› Generally not a suitable tool for food borne illness litigation

› Have consistently fought class certification

Tends to commoditize claims and runs contrary to a “case by case”

mentality

Settle Your Losers (culture-confirmed cases)

› Trial of these cases can incite other filings

› Also pose potential for big verdict or punitive damages

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Settlement Strategy Execution (cont.)

Try Some “Winners” (no causation, modest injury)

› Success will:

Discourage other similar filings

Reduce Plaintiff’s settlement expectations

Overall Philosophy

› To the extent possible, be:

Fair

Consistent

Firm

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Settlement Strategy Execution (cont.)

Bruce Clark

Marler Clark

bclark@marlerclark.com

Alan M. Maxwell

Weinberg Wheeler Hudgins Gunn & Dial

amaxwell@wwhgd.com

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Thank You