Real Events Happening Daily to Real People

76 million cases of foodborne illness annually*

325,000 hospitalizations*

5,000 deaths*

Medical costs, productivity losses, costs of premature death costs $6.9 billion dollars a year

May be as high as $200 billion dollars a year

* The CDC updated this information in late 2010

Marler Clark, LLP PS

Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State.

Only a fraction of the victims who contact our office end up being represented.

Who do we turn away? Why?

The Chaff

Just like health departments we needto quickly and reliably recognize unsupportable claims

How Do We Do It?

Basic Tools of the Trade

Symptoms Incubation Duration Food History Medical Attention Suspected source Others Ill

Health Department Involvement

Matching Symptoms with Specific Characteristics of Pathogens

E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter Vibrio

Matching Incubation Periods

Incubation Periods Of Common Pathogens

PATHOGEN INCUBATION PERIOD

Staphylococcus aureus 1 to 8 hours, typically 2 to 4 hours.

Campylobacter 2 to 7 days, typically 3 to 5 days.

E. coli O157:H7 1 to 10 days, typically 2 to 5 days.

Salmonella 6 to 72 hours, typically 18-36 hours.

Shigella 12 hours to 7 days, typically 1-3 days.

Hepatitis A 15 to 50 days, typically 25-30 days.

Listeria 3 to 70 days, typically 21 days.

Norovirus 24 to 72 hours, typically 36 hours.

Epidemiologic Assessment

Time

Place

Person association

Part of a recognized outbreak?

Medical Attention

Health care provider

Emergency Room

Hospitalization

Health Department Involvement

FOIA/Public Records Request

Prior Health Department Inspections

Improper Cooking Procedures

Improper Refrigeration

Improper Storage and Cooking Procedures

Improper Sanitation

Communicable Disease Investigation

Reportable Disease Case Report Form

Enteric/viral laboratory testing results– Human

specimens– Environmental

specimens

Molecular Testing Results

PFGE/MLVA

PulseNet

Traceback Records

POS A

POS B

POS C

POS D

FIRM A

FIRM B

FIRM C

FIRM D

FIRM E

FIRM G

FIRM H

FIRM F

FIRM I

FIRM J

FIRM K

FIRM L

FIRM M

FIRM N

FIRM O

GROWERA

GROWERB

GROWERD

GROWERC

Firm NameFirms A,C,D,G,H,I,L,M,NGrowers A&CFirms B,E,F,J,KFirm O, Grower DGrower B

No. of outbreaksAssoc. with firm/

Total no. of outbreaks

1/41/42/43/44/4

Improper Cooking Procedures

Hamburger buns are toasted on the grill immediately adjacent to the cooking patties,

and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood

containing active pathogens might possibly splashonto a nearby bun.

A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain. 

Her illness was not culture-confirmed. No food on site tested positive

for E. coli O157:H7.  Review of health inspections revealed flaws

in cooking methods.

Improper Refrigeration

A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak.

No contaminated leftover food was found. 

A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission.

Health Department report noted “raw meat stored above the Jell-O in the refrigerator.” 

The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O

while it was solidifying in the refrigerator.

Improper Storage and Cooking

Banquet-goers in tested positive for Salmonella.

Leftover food items had been discarded or tested negative. 

Restaurant had “pooled” dozens, if not hundreds, of raw eggs in a single bucket for storage overnight, then used them as a “wash” on a specialty dessert that was not cooked thoroughly. 

Civil Litigation – A Tort – How it Really Works Strict liability

It is their fault – Period! Negligence

Did they act reasonably? Punitive damages

Did they act with conscious disregard of a known safety risk?

Strict Liability for Food

“… 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

Bottom Line

“Resistance is Futile”

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.

Negligence Is The Legal Standard Applied To Non-Manufacturers – in some States

See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn. App. 397, 404 (1993).

Punitive (or Exemplary) Damages

Punish the defendant for its conduct;

Deter others from similar conduct.

Historically, such damages were awarded to discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior.

What about criminal conduct?

The Legal Arsenal

Interrogatories Requests for

production Requests for

inspection Request for

admission Third-party

subpoenas Depositions Motions to compel

Litigation At Work – A Bit(e) of History

Jack in the Box - 1993Odwalla - 1996

A Real Life Example – A Real Trial

Benton Franklin Health DistrictOCTOBER 1998

Call from Kennewick General Hospital infection control nurse

Call from elementary school principal

Preliminary Interviews

Kennewick General Hospital

Kennewick Family Medicine

Interview tool– Knowledge of

community– Asked questions

from answers

Case Finding

Established communication with area laboratories, hospitals and physicians

Notified the Washington State Department of Health Epidemiology office

Established case definition early and narrowed later

Finley Schools

Finley School District– K-5– Middle School– High School

Rural area– Water supply– Irrigation water– Septic system– Buses

Epidemiologic Investigation

Classroom schedules Bus schedules Lunch schedules Recess schedules Case-Control Study Cohort Study of Staff Cohort Study of Meals

Purchased

Environmental Investigation

Playground Equipment

– Puddles

– Topography

– Animals

Water system

Sewage system

Hand Rails

Dirty Can Opener

Army Worms

Stray dogs

Environmental Investigation

Environmental Investigation

Kitchen inspection

Food prep review

Food sample collection

Product trace back

Central store

USDA

Results

9801447

9801446

9801443

9801462

9801480

9801482

9801513

9801455

9801481

8 confirmed casesof E. coli O157:H7

3 probable cases

1 secondary case

8 PFGE matches

Results

Ill students in grades K-5

All but one ill child at a taco meal

No other common exposures detected

No ill staff members

Results

Food handling errors were noted in the kitchen

There was evidence of undercooked taco meat

No pathogen found in food samples

Conclusions

Point source outbreak related to exposure at Finley Elementary School

A source of infection could not be determined

The most probable cause was consuming the ground beef taco

The Lawsuit

Eleven minor plaintiffs: 10 primary cases, 1 secondary case

Parents also party to the lawsuit, individually and as guardians ad litem

Two defendants: Finley School District and Northern States Beef

The Basic Allegations

Students at Finley Elementary School were infected with E. coli O157:H7 as a result of eating contaminated taco meat

The E. coli O157:H7 was present in the taco meat because it was undercooked

The resulting outbreak seriously injured the plaintiffs, almost killing one of them

At Trial: The Plaintiff’s Case

The State and the BFHD conducted a fair and thorough investigation

Final report issued by the WDOH concluded the taco meat was the most likely cause of the outbreak

The conclusion reached as a result of the investigation was the correct one

More of The Plaintiff’s Case

There were serious deficiencies in the District’s foodservice operation

There were reasons to doubt the District’s explanation of how the taco meat was prepared

The law only requires a 51% probability to prove the outbreak’s cause-in-fact

The School District’s Defense

The taco meat was safe to eat because:– No E. coli in it– We love children– We are always

careful to cook it a lot

The Taco Meal Recipe Card

More of the School District’s Defense

• We’ve never poisoned anyone before

• The health departments botched investigation

• Something else caused the outbreak

• Someone sold us contaminated meat

What Will a Jury Think?

A Jury = 12 Consumers

What Did This Jury Think?

The investigation was fair and thorough

More probably than not, undercooked taco meat caused the children to become ill

The School District was ultimately responsible for ensuring the safety of the food it sold to its students

In The End

After a six week trial, plaintiffs were awarded $4,750,000

The District appealed the verdict on grounds that it was a product seller and one child did not eat Taco

We won on appeal and then in 2003 the WA State Supreme Court dismissed the District’s case

Final award - $6,068,612.85

Salmonella Pot Pies

272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint were collected from ill persons in 35 states. Three of these patients’ pot pies yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.

Lesson - clear pattern of customer confusion over ready to eat and ready to cook – especially in microwaves.

Salmonella Veggie Booty?

69 reported cases of Salmonella Wandsworth in 23 states and 14 cases of Salmonella Typhimurium in six states who became ill after consuming Veggie Booty, a puffed vegetable snack food with a raw, dried vegetable coating. A total of 61 bags were tested in twelve states. Salmonella sp. was isolated from thirteen bags of Veggie Booty.

Lesson – know your suppliers.

Salmonella Chili’s

305 persons confirmed ill 9 hospitalized, and 179 sought

medical care Restaurant closed for 11 days 28 employees tested positive

for salmonella Depressed sales in region

due to bad publicity 8 months after outbreak, store closed for good

“The investigation revealed environmental factors such as loss of hot water, loss of all water, the large number of ill employees at the facility, a general lack of hand washing and dish-machine sanitizer failure …contributed to/exacerbated the spread….

Salmonella Tomatoes, or was it Peppers?

A final count of 1,442 ill in 43 states, D.C., and Canada, and those are the confirmed illnesses. Using CDC math - which estimates that for every documented case of salmonella in the US, another 38.5 go unreported - the total number sickened was probably closer to 50,000.

Lesson – FDA and CDC are woefully underfunded and understaffed.

Botulism in a Can

As of August 24, 2007, eight cases of botulism had been reported to CDC from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). All eight persons were reported to have consumed hot dog chili sauce made by Castleberry's Food Company.

Castleberry’s manufacturing facility closed after decades in operation.

Lesson – Invest in equipment and people.

E. coli and Campylobacter in Raw Milk

E. coli and Hamburger – Together Again

In 2007 and 2008 - 26 recalls; ground beef companies recalled more than 44 million pounds of E. coli O157:H7-contaminated meat.

In 2006 – 186,000 pound recalled.

Leafy Greens

25 E. coli outbreaks since 1995 with at least 1,000 reported illnesses and 7 deaths

Fresh or fresh-cut lettuce or spinach implicated as outbreak vehicle - 8 outbreaks traced back to produce from Salinas, CA

In 2006 alone, Dole Spinach, Taco Bell and Taco Johns - between 400 - 750 ill

Imports - Hepatitis A

Chi-Chi’s restaurant in Pennsylvania – 660 people sickened, 4 deaths, 100 hospitalized, liver transplant

Bankruptcy Settlements - $50,000,000 Green Onions imported

and grow “in conditions of squalor”

Important --- don’t be too focused on imports

Peanut Butter and Salmonella - Again

Over 750 persons infected with the outbreak strains of Salmonella Typhimurium have been reported from 48 states

Over 150 people hospitalized Nine Deaths Over 3000 products recalled Bankruptcy Criminal Prosecution Declaratory Judgment Lesson - ?

QUESTIONS?

To Learn More…

Bill MarlerMarler Clark, The Food Safety Law Firm

1301 2nd AvenueSuite 2800Seattle, WA 98101

1 866-770-2032