Food Safety

May 6, 2008University of Minnesota

Does Litigation Help?

To Put Things in Perspective

• Microbial pathogens in food cause an estimated 76 million cases of human illness annually in the United States

• 325,000 hospitalized

• 5,000 deaths

Why what “WE” do is Important

“… contaminated food products caused more deaths each year than the combined totals of all 15,000 products regulated by the U.S. Consumer Product Safety Commission; these products caused only 3,700 deaths in 1996.”

Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)

Cracking the Legal Code – What Marler Clark Actually Does

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

• However, we only prosecute a fraction of the cases that contact our offices, some examples of our “missed opportunities:”

“Christening” the Carpet

“I opened a box of Tyson Buffalo wings and dumped them out on a plate to be cooked in the microwave.  An unusually shaped piece caught my eye 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. What do you think?”

Lending a Helping Hand“I have recently read

articles and lawsuits that you have pursued regarding contaminated food.  I am hoping that you may be able to give me your professional advice or recommendation.  

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.  

Lending a Helping Hand, cont. After taking two bites

and tasting rather badly, he found what appeared to be a rather large piece (approx. the size of the back of an adult's fist) of human or animal flesh.  Even though he didn't seek medical attention, he did become very nauseated. I do feel that the manufacturer should be held responsible for this mishap. Thank you for your time and consideration.”

Basic Tools of the Trade – How We Do It• Symptoms• Incubation• Duration• Food History• Medical Attention• Suspected source• Others Ill

Health Department Involvement

The Reality of Foodborne Illness Litigation

•The cases of only a fraction of the victims who become ill are investigated

•Very few cases make it to the court system

•Even fewer receive “reported” compensation

•31.4% of 175 cases•Median award was $25,560Buzby, Jean C., Paul D. Frenzen, and Barbara Rasco. Product Liability and Microbial Foodborne Illness. U.S. Dept. of Agr., Econ. Res. Serv., AER 799, April 2001.

Civil Litigation - A Tort – How it Really Works

• Punitive damages• Did they act with

conscious disregard of a known safety risk?

• Strict liability• It is their fault – Period!

• Negligence• Did they act

reasonably?

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

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).

Negligence is the legal standard applied to non-manufacturers

However, the Legal Reality

“Lawsuits would seem to provide important feedback to these firms about how much they should invest in food safety.”

“[However,] much of the costs of illness borne by people who become ill … are not reimbursed by food firms responsible for an illness.”

“In short, the legal system provides limited incentives for firms to produce safe foods.”

Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)

Why Does the Legal System Seem to Fail?• Manufacturer not Caught• No Known Cause

– What Food or Drink was It?– Victim’s Stool not Tested– What Bacteria or Virus?– Apparent Isolated Case– No Health Department Investigation– No PFGE, No PulseNet

• Unequal Power Between Victim and Manufacturer

Litigation Can Work – A History Lesson

Jack in the Box - 1993

Odwalla - 1996

We would like to acknowledge the time and effort you have taken to contribute to the success of JACK IN THE BOX by enclosing this pen/highlighter. Each person submitting suggestions is eligible to receive one gift per quarter with their first suggestion.

We have researched your suggestion and determined that with the variability of our grill temperatures (350° - 400°) the two minute cooktime is appropriate. If the patties are cooked longer than two minutes, they tend to become tough. To ensure that you are meeting quality expectations for regular patties, please ensure that the grill temperature is correct and grill personnel are using proper procedures.

Punitive (or Exemplary) Damages:

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.

Punish the defendant Punish the defendant for its conduct;for its conduct;

Deter others from Deter others from similar conduct.similar conduct.

Industry Standards

• In nearly every case, industry standards improve after a outbreak of foodborne illnesses

• However, it occurs only after they are caught.

– Increased cook times

– Pasteurization of apple juice

Litigation 1996 - Present

Paramount Farms Almonds Salmonella Outbreak - 2003• Increased Industry Awareness of Contamination RiskHarmony Farms Salmonella Outbreak - 2003• Warnings on SproutsQuality Inn Salmonella Outbreak - 2003• Industry Change on use of Pooled Eggs – New FDA RulesSpokane Produce E. coli Outbreak - 2002• Increased Industry Awareness of Lettuce ContaminationConagra E. coli Outbreak - 2002• Tipping Point in Meat IndustryShipley Sales Salmonella Outbreak - 2001• FDA Change on import of Cantaloupes

Litigation 1996 - Present

Supervalu E. coli Outbreak - 2000• Better Grinding Records at Retail

Sizzler E. coli Outbreak - 2000• Industry Awareness of Risk of Cross-Contamination

Senor Felix Shigella Outbreak - 2000• Pressure from Major Purchaser to Increase Quality

Sun Orchard Salmonella Outbreak - 1999• Pasteurization of Orange Juice

White Water E. coli Outbreak - 1998• Awareness of Need for Chlorination

So, what next – Killer Lettuce?

Prepackaged Lettuce – a $3 Billion Industry• 2005 Minnesota/Wisconsin/Oregon

– At least 30 people sickened with E. coli O157:H7 bacterial infections

– 8 hospitalized – 1 child developed acute kidney failure– 245,000 bags of lettuce recalled

Prior Lettuce Outbreaks

• The Center for Science in the Public Interest found that, of 225 food poisoning outbreaks from 1990 to 1998, nearly 20 percent (55 outbreaks) were linked to fresh fruits, vegetables, or salads

Date Vehicle Etiology Reported Cases

States/Provinces

1 Aug. 1993 Salad bar E. coli O157:H7

53 1:WA

2 July 1995 Lettuce (leafy green, red, romaine)

E. coli O157:H7

70 1:MT

3 Sept. 1995 Lettuce (romaine) E. coli O157:H7

20 1:ID

4 Sept. 1995 Lettuce (iceberg) E. coli O157:H7

30 1:ME

5 Oct. 1995 Lettuce (iceberg; unconfirmed)

E. coli O157:H7

11 1:OH

6 May-June1996

Lettuce (mesclun; red leaf) E. coli O157:H7

61 3:CT,IL,NY

7 May 1998 Salad E. coli O157:H7

2 1:CA

8 Feb.-Mar. 1999

Lettuce (iceberg) E. coli O157:H7

72 1:NE

9 July-Aug. 2002

Lettuce (romaine) E. coli O157:H7

29 2:WA,ID

10 Oct 2003-May 2004

Lettuce (mixed salad) E. coli O157:H7

57 1:CA

11 Apr. 2004 Spinach E. coli O157:H7

16 1:CA

The FDA Response

The FDA Response

• FDA identified 18 outbreaks of E. coli O157:H7 associated with fresh or fresh-cut lettuce, resulting in 409 illnesses and two deaths since 1995.

Past Warnings

• 1998 “Guide to Minimize Microbial Food Safety Hazards for Fruits and Vegetables.” – specifically designed to assist growers and packers in

the implementation of safer manufacturing practices

• February 5, 2004 Letter to the lettuce and tomato industries – to “make them aware of [FDA’s] concerns regarding

continuing outbreaks associated with these two commodities and to encourage the industries to review their practices.”

2005

• 2005 Dole Outbreak – “In light of continuing outbreaks associated with fresh

and fresh-cut lettuce and other leafy greens, particularly form California, we are issuing this second letter to reiterate our concerns and to strongly encourage firms in your industry to review their current operations.”

– FDA cited to research linking some or all of the outbreaks to sewage exposure, animal waste, and other contaminated water sources. The research further indicated that industry practices, including irrigation and field drainage methods, may have led directly to the contamination of the lettuce with E. coli O157:H7.

Dole and Natural Selection –Fall 2006• 204 persons infected

with outbreak strain of E. coli O157:H7 from 26 states.

• 102 (51%) hospitalized

• 31 (16%) developed hemolytic-uremic syndrome (HUS)

• 4 confirmed deaths

What Will a Jury Think?

A Jury = 12 Consumers

Progress in Food Safety

From 1996-2004, the incidence of:

• E. coli O157:H7 infections decreased 42 percent

• Campylobacter infections decreased 31 percent

• Cryptosporidium dropped 40 percent

• Salmonella infections decreased 8 percent

Preliminary FoodNet Data on the Incidence of Infections with Pathogens Transmitted Commonly Through Food – Selected Sites, United States, 2004.

Morbidity and Mortality Weekly Report (April 15, 2005)

How to Make More Progress

• Make Food Safety a Priority• Research• Public Health• Regulation• Litigation• Criminal Sanctions

6600 Columbia Tower701 Fifth AvenueSeattle, Washington 981041-206-346-1890bmarler@marlerclark.com

Questions?