Food Law and Regulation:Looking Ahead to the Future of Food PolicyOctober 24, 2006

Examining Best Practices in Cases of Legal Liability

Responding to Cases of Foodborne Illness

To Put Things into 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 over 40 States.

• 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?”

But, it cuts both ways - Enter the FBI

That unfortunate fact doesn’t serve [ ] the law profession, but I assure you people like myself in hospitalitytraining and certification are doing [our] best to put people like you out of business, first and foremost for the customers[‘] safety, secondly because for once it would be to take food out a lawyer’s mouth . . . Sort of ironic, you shut down restaurants, I shut down lawyers . . . Lol

Have a bad, bad day you Parasite.

FDA food code instructor

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

Health Department Involvement

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

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.”

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

Why Does the Legal System Sometimes 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

But, 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.

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 an outbreak of foodborne illnesses

• However, it occurs only after they are caught.

– Increased cook times

– Pasteurization of apple juice

What Will a Jury Think?

A Jury = 12 Consumers

William D. Marler6600 Columbia Tower701 Fifth AvenueSeattle, Washington 98104(206) 346-1890bmarler@marlerclark.com

Questions?