Minimizing Your Liability Minimizing Your Liability Risk and Foodborne Illness Risk and Foodborne Illness LawsuitsLawsuits

Restaurant Hospitality Magazine July 2004

““We don't have to tell We don't have to tell you that operating a you that operating a restaurant is a risky restaurant is a risky proposition.  But if you proposition.  But if you want to ascertain just want to ascertain just how sensationally risky how sensationally risky it really is, connect to it really is, connect to the Internet, swallow the Internet, swallow hard, and typehard, and typewww.marlerclark.comwww.marlerclark.com into your browser's into your browser's address line.”address line.”

Meat Poultry Magazine – July 2003 – “Hammer Time”

““Bill Marler has heard all the excuses:  Bill Marler has heard all the excuses: 

““It’s not fair.”  It’s not fair.” 

““People are just suing over a tummy People are just suing over a tummy ache.”  ache.” 

““We shouldn’t be blamed.” We shouldn’t be blamed.”

““Although somebody got sick, we did Although somebody got sick, we did everything right.”everything right.”

““Why can you sue me?” Why can you sue me?”

To Put Things in Perspective

According to the CDC, microbial pathogens in According to the CDC, microbial pathogens in food cause an estimated 76 million cases of food cause an estimated 76 million cases of human illness annually in the United Stateshuman illness annually in the United States

325,000 hospitalized325,000 hospitalized Cause up to 5,000 Cause up to 5,000

deathsdeaths

Marler Clark, LLP PS

Since 1993 Marler Clark Since 1993 Marler Clark has represented has represented thousands of food illness thousands of food illness victims in every State. victims in every State.

Settlements and Settlements and Verdicts - nearly Verdicts - nearly $300,000,000$300,000,000

We only bring forward a We only bring forward a fraction of the victims fraction of the victims who contact our offices. who contact our offices. Some examples of your Some examples of your “missed opportunities:”“missed opportunities:”

“Christening” the Carpet

““I opened a box of Buffalo wings and dumped I opened a box of Buffalo wings and dumped them out on a plate to be cooked in the them out on a plate to be cooked in the microwave.  An unusually shaped piece caught microwave.  An unusually shaped piece caught my eye and I picked it up.  When I saw that the my eye and I picked it up.  When I saw that the ‘piece’ had a beak, I got sick to my stomach. ‘piece’ had a beak, I got sick to my stomach. My lunch and diet My lunch and diet coke came up and I managed coke came up and I managed to christen my carpet, to christen my carpet, bedding and clothing. I want bedding and clothing. I want them to at least pay for them to at least pay for cleaning my carpet, etc.”cleaning my carpet, etc.”

But, it cuts both ways - Enter the FBI

Strict Product Liability – or, all I ever learned in Law School

Strict Liability• Are you a manufacturer?• Was the product unsafe?• Did product cause injury?

Negligence• Are you a product seller?• Did you act “reasonably”?

It’s called STRICT Liability for a reason

The only defense is prevention

It does not matter if you took all reasonable precautions

If you manufacture a product that makes someone sick you are going to pay

Wishful thinking does not help

Why Strict Liability? Is it Unfair?

It puts pressure on those (manufacturers) that most likely could correct the problem in the first place

It puts the cost of settlements and verdicts directly on to those (manufacturers) that profit from the product

Incentives – Litigation Can Incentives – Litigation Can Work – A Little History LessonWork – A Little History Lesson

Jack in the BoxJack in the Box

OdwallaOdwalla

June-July, 2003 Salmonella javiana outbreak at a major-chain (Chili’s) Restaurant

305 persons confirmed ill 9 hospitalized, and 179 sought medical care restaurant closed for 11 days 28 employees tested positive for salmonella depressed sales in region due to bad publicity 8 months after outbreak, store closed for good

Health Department Report:“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 handwashing and dish-machine sanitizer failure … contributed to/exacerbated the spread of salmonella javiana.”

Chi-Chi’s Hepatitis-A Outbreak

Chi-Chi’s Hepatitis-A Outbreak

“The ice water in the bucket became, essentially, "hepatitis soup," said Dr. Michael Osterholm, an epidemiologist at the University of Minnesota who has investigated many hepatitis outbreaks.”

“Government Makes It Official: Blame Scallions for Outbreak,” by Denise Grady, NEW YORK TIMES, November 22, 2003

Planning Planning AGAINSTAGAINST Litigation – Litigation – What Is Really ImportantWhat Is Really Important

Identify Hazards- HACCP- Do you have qualified and committed people?

Insurance (have lots!) Involve Vendors

- Do they really have a plan?- Ever visit them?- Indemnity Agreements- Additional Insured

Planning AGAINST Litigation – Establish Relationships

They are your They are your best friends!best friends!

What Will a Jury Think?What Will a Jury Think?

A Jury = 12 Consumers

William D. MarlerWilliam D. Marler6600 Columbia Center6600 Columbia Center701 Fifth Avenue701 Fifth AvenueSeattle, Washington 98104Seattle, Washington 981041-800-884-98401-800-884-9840bmarler@marlerclark.combmarler@marlerclark.com

Questions?Questions?