cdc webinar: foodborne illness outbreaks and law with attorney bill marler

Foodborne Disease Outbreaks and the Law

CDC Webinar - May 10, 2012

William D. Marler, Esq.

What I Tell them: Planning AGAINST Litigation – Establish Relationships

They are your best friends!

To Put Things in Perspective

• According to the CDC, pathogens in food cause an estimated 48 million cases of human illness annually in the United States

• 125,000 hospitalized

• Cause up to 3,000 deaths

• Illnesses from food poisoning pose a $77.7 billion economic burden in the United States annually

Estimates Differ From Actual Counts

• Annual E. coli O157:H7

estimates

– 62,000 illnesses

– 1,800 hospitalizations

– 52 deaths

Bottom Line: Most Victims Never Linked

E. coli O157:H7 SalmonellaPatterns Submitted 5,37629,168Clusters Identified 67 176Multi-state Clusters 36 152Epi Investigation 19 30Vehicle Implicated 4 8Regulatory Activity 4 8

Ill person

Specimen collection

The Long Pathway of a Foodborne Illness Investigation

Health Care Provider

Organism identified

Ill person

Organism identified

Specimen collection

The Pathway Continued

Health Care Provider

Epidemiologic investigation

Public Health Laboratory

If there are more ill persons than expected, an

OUTBREAK might be underway

Ill person

Organism identified

Specimen collection

Pathway of a Foodborne Illness Investigation

Health Care Provider

Epidemiologic investigation

Public Health Laboratory

Environmental investigation

Product Trace BackPRODUCT RECALL

Why “WE” do what “WE” do

The Criminal Justice System is Broken

Peanut Corporation of America

• 714 persons infected with the outbreak strain of Salmonella Typhimurium were reported from 46 states and Canada

• Among persons with available information, 24% reported being hospitalized

• Infection contributed to nine deaths: Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2)

• Parnell ordered products identified with Salmonella to be shipped and quoting his complaints that tests discovering the contaminated food were "costing us huge $$$$$"

Strict Product Liability

• Negligence– Are they a

product seller?– Did they act

“reasonably”?

• Strict Liability– Are they a

manufacturer?– Was the product

unsafe?– Did product

cause injury?

• Punitive Damages/Criminal Liability– Did they act with

conscious disregard of a known safety risk?

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 only defense is prevention

• It does not matter if they took all reasonable precautions

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

• Wishful thinking does not help

It’s called STRICT Liability for a Reason

Litigation as Incentive

OdwallaJack in the Box

Worthless Excuse No. 1

• If a document contains damning information, the jury will assume they read it, understood it, and ignored it

“I never read the memo.”

Role of Public and Environmental Health?

• It is the Public’s Health

• It is investigating “just the facts” regardless where they lead

• It is to be as Transparent to the extent it can

• Three Goals:1) Stop the Outbreak2) Determine Cause3) Prevent the next

Outbreak

How to Accomplish that Role?

Caveat: Public Health is under pressure

• Lawsuits? You have nothing to fear if you do your job

• How to avoid lawyers

1. Document your Investigation and Analysis2. Provide a through Final Report with all Relevant Documents

What to do if you do see my Letterhead

• FOIA – What do I really need

Local Health Departments - Case Investigation Forms, Reportable Disease Forms, Restaurant Inspection

State Health Departments - Client specific and/or redacted Questionnaires, Product Traceback and Forward, Lab Results

Federal Agencies – PFGE/MLVA Line List, Facility Inspections

Subscribe to Food Safety News

"A stunningly researched work, "Poisoned" reads as though Clarence Darrow had written "The Jungle.”

"Just in time for BBQ season, an investigative journalist traces the path of a devastating outbreak of food-borne illness linked to hamburger meat.” 

Email me at:

bmarler@marlerclark.com

Resources

• Food Safety News

• Real Raw Milk Facts

• Foodborne Illness Outbreak Database

• Marler Blog

• Occupy Food Safety

Questions?