Germs on a Plane: U S LitigationGerms on a Plane: U.S. Litigation Considerations for Airline Food B Ill Cl iBorne Illness Claims

Katherine A. StatonPartner, Jackson Walker L.L.P.

Dallas, Texas

*Presentation and Pictures – for Educational Purposes Only.

CASE HYPOTHETICAL:

Fortune Airlines, Flight 101, Departing Miami, Florida to the Dallas/Fort Worth International Airport on Julyto the Dallas/Fort Worth International Airport on July 7, 2007

Flight departed Miami at 2:05 p.m.; arrived at DFW at g p p ;5:01 p.m. (3 hour flight).

Previous 5 days aircraft flew between Miami, Florida; Bogata Columbia; Mexico City Mexico; TegucigalpaBogata, Columbia; Mexico City, Mexico; Tegucigalpa, Honduras; Managua, Nicargua; and San Jose, Costa Rica (warm climates)

126 people on Fortune Airlines, Flight 101, MD 80 Aircraft

Food service on flight: peanuts and pretzels;

1st Class -meal service; Coach – sandwiches and chips

Fortune Airlines’ kitchen in Miami prepared the First Class meals and Coach sandwiches on July 7 20077, 2007

Peanuts and pretzels supplied by vendor XYZ C b d i St L i Mi iCompany based in St. Louis, Missouri

Sandwich/meat processed/manufactured by vendor ABC Company in El Paso TexasABC Company in El Paso, Texas

One passenger, seated in 21D, became ill during flight ( i d) b ld fli h d h h d “f d(vomited), but told flight attendant he had “food poisoning” from vacation he was returning from in Mexico.

Fortune Airlines has its aircraft serviced and maintained by Wrenches, Inc., based in New York City, New York

15 other Sun Airlines’ flights had the same First Class meal service, peanuts and pretzels and sandwiches; and all aircraft serviced by Wrenches on July 7, 2007. y y

The Perfect Storm

The Illness:

Fortune Airlines notified by the San Angelo Te as Health Department thatAngelo, Texas Health Department that 19 residents of High Plains Retirement Community, who were on Flight 101, reported illness, which included:p ,

nausea, vomiting, diarrhea, cramps, fever, muscle aches; some reported coughing wheezingcoughing, wheezing

Texas Health DepartmentS A l TXSan Angelo, TX

Fortune Airlines’ Initial Response:

Fortune mobilizes its task force, initiates calls to all passengers on Flight 101 to determine if any passengers outside of High Plains group became ill

Fortune determines other passengers ill on this flight

Fortune initiates its Emergency Response Protocol and Investigation

Fortune Airlines’ Emergency Response and Investigation:

Response Protocol:

Contact all Flight 101 passengers;Contact all Flight 101 passengers; inquire as to health and wellness; chart/document illnesses on Aircraft

Identify which flights (15) had the same food service as Flight 101, and determine if any illnesses reported.

Identify and notify vendors (ABC Company –sandwich/meat; XYZ Company – peanuts and pretzels) of illness;

request HACCP (Hazard Analysis Critical Control Point) records to insure procedures followed;

request food samples to be sent for testing/microbiological analysisanalysis.

Identify Fortune Airlines’ kitchen (in Miami) that prepared First Class and Coach meals for Flight 101;

review HACCP records to insure kitchen’s procedures, processes and guidelines followed;

request samples of food to be tested/microbiological analysis.analysis.

Inspect Flight 101 Aircraft (N55FOR) to determine if water on aircraft source of illness.

Review Aircraft N55FOR maintenance recordsReview Aircraft N55FOR maintenance records for 30 days before July 7, 2007 to identify any potential maintenance issue related to passenger illnesses.passe ge esses

*Fortune notifies the FDA (Food and Drug Administration) of illnesses related to Flight 101Flight 101.

TIMELINE OF ILLNESS REPORTING

Jul 8, 2007 7:30 a.m.

(Sun) Pax 21C reports to ER (Texas) - (Norwalk, Li t i )

Jul 9, 2007 9:00 a.m.

San Angelo Health Dept. notified Fortune Airlines of Illnesses Jul 9, 2007 1:00 p.m.

Jul 8, 2007 7:30 a.m.

(Sun) Pax 21C reports to ER (Texas) - (Norwalk, A ill i Li i )

Jul 7, 2007 2:00 p.m.

(Sat) Flight 101 departs MIA to DFW

Listeria) Fortune initiates contact w ith all Flight 101 pax.

Discovers by 10 PM:. 40 other pax reported illness (variety of symptons)5 required hospitalization (Texas Michigan California Denver)

Aspergillosis, Listeria)

Jul 7, 2007 Jul 8, 2007 Jul 9, 2007 Jul 10, 2007 Jul 11, 2007

. 5 required hospitalization (Texas, Michigan, California, Denver)

Jul 7, 2007 Jul 8, 2007 Jul 9, 2007 Jul 10, 2007 Jul 11, 2007

Jul 7, 2007 11:30 p.m. Jul 8, 200710:00 a m to 8:00 p m

Jul 11, 2007

(Wed)3 passengers still hospitalized

Pax 21D admitted to ER(Kansas) (Norwalk virus)

10:00 a.m. to 8:00 p.m.

(21 other pax (seated between rows 15 to 26) reported sick/hospitalized or sought medical care(Norwalk, Listeria, Aspergillosis)

(Texas, California, Michigan)

Jul 11, 2007 2:54 p.m.

Passenger 21C dies - 74 ldyears old

Investigation Findings:g g

40 Passengers From Flight 101 Ill

1 fatality (21C) (elderly, asthmatic, recent cancer survivor)1 passenger sick before flight – documented p g gNorwalk Virus – 1 source of illness21 passengers required some medical care orhospitalization – Norwalk Virus, Listeria, AspergillosisAspergillosis17 passengers mild Listeria symptoms – no medical care neededAll Coach passengers who ate sandwich (no Fi t Cl b ill)First Class passengers became ill)

Illness Descriptions

Pathogen Incubation Symptoms Duration FoodsNorwalk-like Virus 12-48 hours Nausea, vomiting,

diarrhea, cramps24-60 hours Raw oysters, water,

person to person*airborne through air. Inhalation –Inhalation documented outbreak in UK

Listeria 9-48 hours for Fever, muscle aches Variable Fresh soft cheeses, GI symptoms; 2-6 weeks for invasive disease

and nausea or diarrhea; *pregnant women may have flu-like illness and stillbirth;

unpasteurized or inadequately pasteurized milk, ready to eat deli meats and hot dogs.illness and stillbirth;

elderly, immune –compromised, and infants infected from mother can get

hot dogs.

sepsis or meningitis.

Illness Descriptions (cont.)

Pathogen Incubation Symptoms Duration Foods

Aspergillosis 12 hours to 14 days

Fever, cough, chest pains, blood expectorant from lungs

Variable (possibly 3 months or longer)

Grain crops, ground pepper, spices, peanuts.*lungs.

*those with weakened or compromised immune systems or

longer) *common environmental sources: ventilation and air conditioning ducts and systems – inhalation of y

history of asthma/lung disease more susceptible to illness (and fatality)

ymold spores.

illness (and fatality)

Illness Descriptions (cont.)

Investigation Findings (cont’d):g g ( )

164 passengers from 15 other Fortune Flights which had catered sandwiches became ill with mild Listeria symptomscatered sandwiches became ill with mild Listeria symptoms.

Confirmed Sources of Illness:

ABC Company: Manufactured turkey meat for sandwiches, microbiological testing of deli-, g gmeat found Listeria present in meat

Deli-Meat recall initiated by meatDeli Meat recall initiated by meat producer/FDA.

Press releases and news storiesPress releases and news stories mentioned/highlighted Fortune Airlines Flight 101 as being part of the Listeria “outbreak ”outbreak.

Fortune Airlines: Prepared/assembled and packaged t k t d i h i bi l i l t titurkey meat sandwiches – microbiological testing identified Listeria in Airline’s catering kitchen environment (utensil room and food preparation room).

Wrenches, Inc.: Failed to replace air filters on Aircraft N55FOR – Aspergillosis mold found rampant in moist air filters (warm climate).air filters (warm climate).

Passenger 21D – CDC determined this passenger sick before Flight 101 due to restaurant food 21D

d J l 26 2007 ( fi d f d bconsumed July 26, 2007 (confirmed food borne Norwalk-like Virus)

Vomiting on Flight 101 spread to 22 other Flight 101 g g p gpassengers.

MD-80Pax 21D vomits during flight

Pax (21) that had Norwalk, Listeria and some

Aspergillosis symptoms Pax Total Illnesses: 40

Pax 21C; 73 years old Fatality

Aspergillosis symptoms

Pax (17) with mild Listeria symptoms

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U S LiabilityU.S. Liability Considerations forConsiderations for Food Borne IllnessFood Borne Illness

IncidentsIncidents

U.S. Liability Considerations – Food Borne Illness Outbreak or ClaimsI. Jurisdiction and VenueII. Causes of ActionIII. Preemption of ClaimsIV Class ActionsIV. Class ActionsV. Defenses to ClaimsVI. Settlement and Trial ConsiderationsVII Food Supplier and Vendor ConsiderationsVII. Food Supplier and Vendor ConsiderationsVIII. Food for Thought: Plan of Action if Illness

Outbreak OccursIX A l i f H th ti l S i d L lIX. Analysis of Hypothetical Scenario and Legal

Considerations

I. Jurisdiction and Venue:

State Courts

Possible litigation in any state in U.S.Multiple state court venues (depending on state law))

Venue Shopping by Plaintiffs:pp g y

i.e. El Paso, Texas (ABC Co.); St. Louis, MO (XYZ Co.); Miami, FL (Fortune ( ) (Airlines); Dallas, Texas (Destination Flight 100); etc.

No formal vehicle to coordinate multiple state or state and federal case filings.

Manual for Cooperation Between State and Federal Courts

Discovery – Various State and Federal Courts

DisclosuresDisclosuresInterrogatoriesRequests for ProductionRequests for ProductionRequests for AdmissionDepositions

*Coordination Key.y

Federal Courts

Filing allowed based on:

Diversity ($75,000) 28 USC § 1332y ( , ) §Federal Question Jurisdiction 28 USC § 1331

Federal Multidistrict Litigation 28 USC § 1407Federal Multidistrict Litigation 28 USC § 1407

“When civil actions involving one or more commonWhen civil actions involving one or more common

questions of fact are pending in different districts, such

actions may be transferred to any district for coordinated or

consolidated pretrial proceedings.”

PURPOSES OF FEDERAL MULTIDISTRICT LITIGATION

Convenience of Parties and Witnesses

Promote “Just and Efficient Conduct of Such Actions”

Uniform Consolidated Discovery and PreUniform, Consolidated Discovery and Pre-Trial Rulings

II. COMMON CAUSES OF ACTION ASSERTED IN FOOD BORNE ILLNESS CASES

Strict Product LiabilityNegligenceBreach of WarrantyyDeceptive Trade Practices

STRICT LIABILITY

Most Common Type of Claim Filed in Food Borne Illness Case:

Strict LiabilityStrict Liability

Focuses on Product (not conduct)Liability assumed if:Liability assumed if:

Product unsafe/defectiveSubstantially unchanged condition when reached passengerP d t d i j ( ti i d)Product caused injury (causation required)

No defense: air carrier’s care in manufacturing, preparing or handling defective productg p

Strict Liability Applies to Manufacturers of Food Products:

Manufacturers generally defined as: “aManufacturers generally defined as: a designer, formulator, constructor, rebuilder, fabrication, producer, compounder,

bl f d hprocessor or assembler of a product…who places product…in the stream of commerce ” Tex Civ Prac & Rem Code §commerce. Tex. Civ. Prac. & Rem. Code §82.001(4).

Definition will vary from state to state.Critical to research applicable state laws and statutes specific to each claim.p

Sellers of product generally not liable underSellers of product generally not liable under strict product liability statute:

Unless seller takes some role in the design, modification, assembly or installation of productSeller usually liable in negligence (eg: if airlineSeller usually liable in negligence (eg: if airline contracted for food vendor to supply meal and had no role in food preparation). Why? Control issue.

In Fortune hypothetical - both ABCIn Fortune hypothetical both ABC Company (meat producer) and Fortune Airlines (assembler of sandwiches) subject ( ) jto strict liability claims - sandwiches defective due to Listeria.

Negligence

General Negligence Standard: DefendantGeneral Negligence Standard: Defendant failed to use reasonable care in manufacturing, packaging or preparing the g, p g g p p gfood, so that it was defective or unreasonably dangerous, and when y gconsumed by passenger, led to injuries.

High Duty of Care:High Duty of Care:

High (“highest duty” or “utmost care” in g ( g est duty o ut ost ca eother jurisdictions) duty of care or common carriers.

eg. Texas, Missouri, Illinois, Nebraska, Wyoming, Arizona, California, …

Elements of a Negligence Claim:Elements of a Negligence Claim:

Duty owed by Defendant/Carrier to uty o ed by e e da t/Ca e toPlaintiff/Passenger

Breach of such duty

Breach was the proximate cause of passenger’s injuries (causation)p g j ( )

Breach of Warranty Claims:

General Standard:Product did not conform to warranty (express or implied)N f i f t f d t/f d d i jNon-conforming feature of product/food caused injury

Most Common Food Warranty Claim – impliedMost Common Food Warranty Claim implied warranty

Examples:Express Warranty: Boned Chicken = no bonesImplied Warranty: Quality or wholesome foodImplied Warranty: Quality or wholesome food

Deceptive Trade Practices Claims

Many states have Deceptive Trade Practices Acts y p(DTPA).

Liability provisions vary from state to state (pertain to false, misleading or deceptive act/practice).

Benefit can be the award of attorneys fees and costs, or a multiple of damages.costs, or a multiple of damages.

DTPA Caps on damagesDTPA Caps on damages.

Punitive Damage Awards:

Vary from state to state (some states do not allowVary from state to state (some states do not allow this recovery)

Some states have award caps or limitations

Key to consider as to facts in case and where case pending.

III. PREEMPTION OF STATE LAW CLAIMS:

Doctrine of federal preemption: State laws are preempted (or displaced) if they conflict with federal law.

Based on Supremacy Clause, U.S. ConstitutionP ti ith i li dPreemption either express or implied

Aviation Context: Airline Deregulation Act (ADA)

ADA expressly preempted states from enacting or enforcing any law (or cause of action) “relating to [the] rates, routes or services” of any air carrier. (emphasis added).( p )Food Services Claims – could be preempted under ADA

Depends on federal district rulings and how “services” defined in circuit case pendingcircuit case pending

V. CLASS ACTIONS:

Usually filed when:Usually filed when:

Latent risk at issue (especially risk of chronic illness)

Injury (usually economic) of a relatively small value soughtsought

Involving product used over wide area

Affecting vulnerable population (elderly, children, pregnant women)pregnant women).

CLASS ACTIONS (cont.)

Why class actions threatened in the aviationWhy class actions threatened in the aviation field?

Usually to force an airline to settlement or to threaten an airline with prospect that many of its passengers may be contacted or solicited.

Plaintiff’s threat of adverse media exposure afterPlaintiff s threat of adverse media exposure after outbreak.

IV. CLASS ACTION REQUIREMENTS:

Definition

Class Must BeAscertainable ObjectivelySome degree of Precision [ascertainable by reference to objectivecriteria]

Cannot beCannot be“Fail-Safe” class (class defined after legal determination of ultimate issue)“Futures” Class

Hypothetical-class extends to Flight 101, and arguably to 15 other Fortune flights on July 7, 2007

CLASS ACTIONS RARE IN FOOD BORNE ILLNESS CASES

Individual Issues OftenIndividual Issues Often Predominate

Varying State Laws

Individual Exposure and I di id l R tiIndividual Reactions

Specific Causation

Different DamagesDifferent Damages

V. DEFENSES TO PLAINTIFFS’ CLAIMS:

Causation (primary battleground)

Plaintiff must prove food borne illness caused injury in all causes of action (even j y (strict liability claims)

Cases in which microbiological testingCases in which microbiological testing ties illness to carrier’s food (or Health Department investigation (ICDC) confirms same) – causation usually made) y

Questionable Causation Cases – look at

Timeline of passenger illnessTimeline of passenger illnessIncubation PeriodPrior Company Conduct Expert TestimonyExpert TestimonyTesting: Testing hospital records/testing as to passenger illnessTreatment: Whether passenger sought treatment after illnessReporting: To local health departmentReporting: To local health departmentSize of OutbreakScope of Outbreak

Comparative negligence/faultComparative negligence/fault Usually plaintiffs not at fault if served cooked/ prepackaged food on flight.

Company procedures, guidelines, policiesp y p g pNon-strict liability casesShows reasonable conduct to guard against illness

Co-DefendantsCo Defendants

Who is to blame for illness? If not your product, or involvement, no liability? Multiple defendants also can cast doubt as to causation of illness.Initial investigation key to determine who might be responsible for illness (timeliness)

Other Defenses: Statute of Limitations, Montreal Convention, … (case specific)

Stipulations to LiabilityStipulations to Liability

Consideration in cases where causation madeConsideration in cases where causation made

Stipulation should include dismissal of punitive damages

VI. SETTLEMENT AND TRIAL CONSIDERATIONS:

Causation established?Expert testimony (battle of experts)Amount in controversy (fees and costs vs. value of claim))Brand damageCertainty vs. UncertaintyVenue of pending caseVenue of pending caseTrial verdicts in pending jurisdictionCo-defendant relationship/contributionDamages (wrongful death suits, permanent injury claims)Number and type of claimants

VII. FOOD SUPPLIER AND VENDOR CONSIDERATIONS:

Carrier contracts with suppliers/vendorspp

Clearly identify services, product quality, processes, procedures (HACCP, …), audits (frequency, who performs…) p ( ) ( q y p )guidelines for services/products.

Provide that carrier may change standards, guidelines, procedures with supplier/vendor when needed.

Provide indemnification of carrier from vendor/supplier

Provide in contract which state law to apply and know that state’s provisions as to indemnity

Provide carrier is additional insured on vendor/supplier ppinsurance contracts

Retain right to select counsel and direct litigation in tenderRetain right to select counsel and direct litigation in tender of defense (protects brand and public image).Carrier provided with proof of coverage annuallyMinimum level of coverage required?Minimum level of coverage required?Carrier may require additional security (designated assets) if insurance not enough – rare cases.

Know your suppliers and vendors y pp

Visit facilitiesPurchase from approved sources subject to regulatoryPurchase from approved sources – subject to regulatory compliance requirementsRequire vendor/supplier to use carrier approved checklist or compliance practicesor compliance practicesRequest suppliers’ inspections – self-inspectors, third party health agency or regulatory inspectionsR i li / d t id ti f l iRequire supplier/vendor to provide notice of any claims or illness

VIII. BE READY TO RESPOND TO AN OUTBREAK

Have a written protocol in place to respondHave a written protocol in place to respond to outbreak

Have “team” identified

Experts in food safetyExperts in food safetyEpidemiologistPublic RelationsLegal

Gather facts quickly/investigate

Notify the appropriate state/federal agency

Be ready to work with these entities

Have a plan to address media

B d t i l ( iti t d )Be prepared to issue press release (mitigate damages)

Contact affected passengers immediately, if possible

Before mediaEstablish call centerHonesty – best policy

Immediately address source ofImmediately address source of contamination

Suppliers/vendorsCarrierThi d P tThird Party

Put Insurance Carrier on Notice

IX. CONCLUSION: HYPOTHETICAL CONSIDERATIONS

Potential DefendantsPotential Defendants

Fortune AirlinesFortune AirlinesABC Company (meat processor)Wrenches, Inc. (maintained aircraft)Passenger 21D (Norwalk Virus)

Potential Causes of ActionPotential Causes of Action

Strict Liability: *Fortune Airlines, ABC Company Note: difference if carrier did not prepare food-- Note: difference if carrier did not prepare food.

Negligence: Fortune Airlines, ABC Company, Wrenches, Inc., Passenger 21D.B h f W t F t Ai li ABC CBreach of Warranty: Fortune Airlines, ABC Company, possibly Wrenches, Inc.DTPA: Fortune Airlines, ABC Company, possibly W h IWrenches, Inc.

*Note Flight 101 causes of action vs. other flights.

Jurisdiction and VenueJurisdiction and VenueState and federal courtsAcross the U.S.Note: El Paso, St. Louis, Miami, Florida

Multidistrict Litigation PossibleDepends on where cases filedDepends on number of cases that end up in federal court

Class ActionClass Action

Filing possible

Certification unlikely (fact dependent)

Varying state lawsIndividual claims and damagesSpecific causation

Preemption of ClaimsPreemption of Claims

Possible under ADA or other Federal ActDependent on petition/complaint and which federal circuit

Defenses and Litigation Strategyg gy

Causation difficult to defeat due to health agency findings

Coordination with defendants key to resolve claims (settlement)

Balance risk of litigation v. need to defendants

Wrongful death and significant injuries claims – strategicWrongful death and significant injuries claims strategic resolution strategy

Consider Stipulation of Liability and Sharing Agreementsp y g g

SPECIAL THANKS:

American Airlines, Inc.,Jim Duarte

Continental Airlines, Inc.Jane Bernier-TranM A D dMaryAnn DowdJessica Rossman

LSG Sky ChefsJudith Sutton