2011 Rocky Mountain Food Safety Conference
-
Upload
bill-marler -
Category
Health & Medicine
-
view
550 -
download
1
description
Transcript of 2011 Rocky Mountain Food Safety Conference
Patti WallerMarler Clark May 17, 2011Boulder, CO
Recent and Emerging Trends in Foodborne
Illness Litigation
2011 Rocky Mountain Food Safety Conference
Putting It Into Perspective
48 million cases of foodborne illness each year in the US
128,00 hospitalizations
3,000 death
Scallan E, Hoekstra RM, Angulo FJ, et. al. Foodborne illness acquired in the United States – major pathogens. Emerg Infect Dis. 2011 Jan; http://www.cdc.gov/EID/content/17/1/7.htm
Foodborne Illness is Expensive
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.
$152 billion annual costs
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.
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
Meet Katelyn
Ate contaminated ground beef
E. coli O157:H7 Hemolytic Uremic
Syndrome 3 weeks hospitalization Pancreatitis Damage to central
nervous system Liver damage High blood pressure
Katelyn before E. coli
Long term consequences - Katelyn
Pancreas destroyed Type 1 diabetic, insulin
dependent Likely to progress to end
stage renal disease, requiring multiple kidney transplants Katelyn 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
Marler Clark Law Firm
Formed in 1998 Seattle based 7 attorneys, and 10 staff Primary focus is representing people seriously
injured as a result of a foodborne illness Clients in all 50 states, settlements totaling
>$500,000,000 Advocates for food safety and public health
Bill Marler
Marler Clark Investigations
Contacted daily by persons who suspect they have a foodborne illness
Very few callers describe an event that warrants further follow-up
Individuals who meet screening criteria are sent “new client packets”
Isolated cases involving serious injury or death are often investigated in spite of the odds against identifying a source
Basic Tools of the Trade Symptoms Incubation Duration Food History Medical/Laboratory
Diagnostics Suspected source Others Ill
Health Department Involvement
Public Record Requests
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
Liability for Selling Contaminated Food
Strict liability
Focus is on the product-is it unreasonably dangerous or defective Negligence
Focus on the conduct did it meet the standard of care
Strict Liability
A manufacturer is liable if:1. The product had a defect
which rendered it unreasonably dangerous;
2. The defect existed at the time the product left the manufacturer’s control; and
3. The defect caused injury
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)
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).
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.
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 conduits in the chain of distribution.
See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn.App. 397, 404 (1993).
Suppliers/Producers Held More Accountable
Defense strategy Underinsured No insurance Bankruptcy
Depending on laws in each state, these factors may put upstream suppliers and/or distributors at risk for liability.
Outbreaks of S. Baildon and S. Hartford
Salmonella serotype Hartford75 ill in 15 statesIllness onsets between April 30 and July 18, 2010
Salmonella serotype Baildon 80 ill in 15 statesIllness onsets between May 11 and July 19, 2010
Epidemiologic evidence points toward PRODUCE consumed at multiple Taco Bell restaurants
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
BankruptcyFDA inspectors reported after spending 2 weeks at the Blakely, Georgia plant that the company knew its product was tainted with Salmonella but shipped them anyway after re-testing. This happened at least 12 times
in 2007-2008.
DeFusco’s Bakery – March 2011
Salmonella Heidelberg 79 ill persons 30 hospitalizations 2 deaths Bacteria found in empty boxes used
for raw eggs
NO LICENSE TO OPERATE!NO INSPECTIONS!NO INSURANCE!
SanGar Fresh Cut Produce, Texas
Outbreak of Listeria monocytogenes Texas Dept. of State Health Services and
FDA investigation 10 case-patients, 5 deaths 7 of 10 consumed chopped celery Product distributed to restaurants
and institutions (hospitals!) Indistinguishable PFGE between
patients, product, and environmental swabs Facility closed on October 21, 2010
NOW….
MISSING IN ACTION!!
Reliance on New Diagnostics
Pulsed Field Gel Electrophoresis (PFGE)
Multi-Locus Variable Tandem Repeat Analysis (MLVA)
JBS Swift and E. coli O157:H7, 2009
Linked to JBS Swift meat products 23 case-patients in 9 states
17 hospitalized 2 developed Hemolytic Uremic Syndrome
PFGE Pattern Combo – relatively COMMON! XBA – EXHX01.0074 BLN – EXHA26.0569
MLVA – Outbreak Pattern A1
BBBBBBb
EPIDEMIOLOGY still rules!
WRIGHT COUNTY EGGS INCFrom May 1 to November 30, 2010, approximately 1,939 illnesses of Salmonella Enteritidis infections occurred nationwide.
“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
Food Safety Modernization Act of 2010
Allow the FDA to order a recall of tainted foods; Require larger food processors and
manufacturers to register with the FDA and create detailed food safety plans;
Require the FDA to create new produce safety regulations for producers of the highest-risk fruits and vegetables;
FDA Food Safety Modernization Act of 2010
Require CDC and state health departments to coordinate foodborne illness surveillance;
Establish stricter standards for the safetyof imported food;
Increase inspections of domestic and foreign food facilities, directing the most resources to those operations with the highest risk profiles.
Traceability FDA to establish a product tracing system to
receive information that allows FDA to effectively and rapidly track and trace food for consumption in US.
No specific timeline provided for establishing a product tracing system.
Improve surveillance with state public health authorities.
Does the FSMA mean the end of Marler?
Nah…we’ll still have “Sprout-breaks”
Jimmy Johns/Tiny Greens Alfalfa sprouts Nov 2010 – Feb 2011 Salmonella I 4,[5], 12:i:- 140 ill persons in 26
statesSprouters Northwest Clover sprouts December 2010 Salmonella Newport 6 ill persons in Washington
and Oregon
….and Raw Milk
RAW MILK OUTBREAKS, 2010
Month State Pathogen # ill Vehicle
Jan NY Campylobacter 5 Raw milk
Feb WA STEC 6 Raw milk
Feb WA Listeria moncytogenes 5 Queso fresco
Mar Multiple Campylobacter 12 Raw milk
Mar PA Campylobacter 10 Raw milk
Apr UT Salmonella 10 Raw milk
Apr UT Campylobacter 15 Raw milk
May WA E. coli O157:H7 2 Raw milk
May MN E. coli O157:H7 8 Raw milk
Jun DE Brucella & Listeria monocytogenes 2 Raw dairy products
Jun-Jul CO Campylobacter & E. coli O157:H7 30 Raw goat’s milk
Oct MN Campylobacter & Cryptosporidium parvum 7 Raw dairy products
Nov Multiple E. coli O157:H7 & Listeria monocytogenes 38 Raw gouda cheese
Dec Multiple E. coli O157:H7 8 Raw milk cheese
Bobby Ray “Pete”
Consumed Austin-brand peanut butter crackers
Ill on Sunday night Died on Wednesday
+ for Salmonella TyphimuriumPFGE match to PCA outbreak strainPete 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.
Why what WE do is important
Questions, Comments?
Patti WallerMarler Clark 1301 Second Avenue, Suite 2800Seattle, WA [email protected]
www.marlerclark.comwww.foodsafetynews.comwww.outbreakdatabase.com