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Foodborne contaminates and pathogens have becomean increasingly persistent liability exposure for clientssuch as restaurants and food manufacturers. Accordingto the Centers for Disease Control and Prevention(CDC), Foodborne illness affects an estimated 48million people each year, resulting in 128,000hospitalizations and 3,000 deaths.1 These casespresent difficult and unique challenges to de-fense counsel and require management ofnot only the case at bar, but potential con-sumer fallout and misinformation result-ing in consumer distrust andrelinquishment of brand loyalty. As a general principle, a plaintiffwill likely look to name any and allparties involved in the chain of dis-tribution of the contaminatedfood including the food process-ing company, the retailer, andany suppliers, wholesalers, anddistributors in between. Foodborne contaminatelawsuits generally fall underthe category of defectiveproduct liability claims. Whilea plaintiff will usually havevarious claims that may bebrought, this article will focusupon three of the most com-mon claims: (1) strict liability;(2) negligence; and (3) breachof warranty.

STRICT LIABILITY CLAIMS Many states have adopted strictproduct liability laws that relieve aplaintiff from the burden of havingto show that the manufacturer or sup-plier of a contaminated food productwas not sufficiently careful in makingor distributing the product. While these strict liability laws dif-fer from state to state, courts have gener-ated two common tests when dealing withfoodborne contaminates: the “reasonableexpectations” test and the “foreign-natural”test.

The reasonable expectations test states that aproduct defect may be actionable under a strict

products liability theory if the product is notreasonably safe. Liability is determined by anegligence-like risk/benefit inquiry thatlooks at the likelihood that the product willcause injury if not properly made, and thereasonableness of the actions or inactionstaken by the defendants in ensuring thatthe product was safely made.2

In order to establish liability underthe more defense friendly foreign-nat-

ural test, a plaintiff must show thatthe substance or material is not nat-ural to the type of food served andcan legitimately be called a foreignsubstance. Moreover, the plaintiffmust show that the substance heencountered when eating was notone that he ought to have antici-pated or been on his guardagainst.3

NEGLIGENCE CLAIMSIn addition to a strict liability

claim, an injured plaintiff mayalso bring a negligence claim andargue that the defendants werenegligent in manufacturing orsupplying the contaminatedfood product. In order to provenegligence, a plaintiff must showthat the defendants failed to ex-ercise reasonable care in making

or distributing the contaminatedfood product and that as a result of

this negligence, the plaintiff wascaused to suffer some tangibleharm. In the restaurant context,

“reasonable care” means that therestaurant has a duty to maintain a safe

environment, produce safe products,and eliminate unreasonable dangers.4

Assuming due care principles apply, allentities in the distribution chain will be

judged by their compliance (or non-compli-ance) with the Good Agricultural Practices,

LITIGATION EVALUATION AND STRATEGY PROCESSES

Food Contaminationand Containment

Nicholas M. Cardascia and Frank A. Cecere Ahmuty, Demers & McManus

U S L A W www.uslaw.org SPRING/SUMMER 2015

Good Manufacturing Practices, and HazardAnalysis and Critical Control Points plans. A defendant will be held liable if aplaintiff can show that it is reasonably cer-tain that the food product, when put to nor-mal use, would be dangerous if it weredefective. A product is defective if the de-fendant fails to use reasonable care in de-signing, making, inspecting, and testing aproduct.5 In practice, this turns into an in-quiry of whether or not a restaurant owner,and his or her suppliers, used ordinary careto remove from the food, as served, suchharmful substance as the consumer wouldnot ordinarily anticipate.6

BREACH OF WARRANTY CLAIMS In addition to strict liability and negli-gence claims, a plaintiff may also bring aclaim for breach of warranty. Most states im-pose minimum standards on products. Ifthese minimum standards are not enforced,a defendant may face exposure for breachof an implied warranty. In addition, any foodcontamination that constitutes a violation ofany express guarantees supplied by the foodprocessor may expose a defendant to liabil-ity under express warranty principles. The legal standard under an impliedwarranty theory is whether the product wasfit for the ordinary purposes for which suchgoods were used. That inquiry focuses onthe reasonable expectations of the con-sumer for the product when used in the cus-tomary, usual, and reasonably foreseeablemanner, without regard to the feasibility ofalternative designs or the manufacturer’s orseller’s reasonableness in marketing it inthat unsafe condition.7 In analyzing a plaintiff’s claims forbreach of warranty, the court will again lookto either the reasonable expectations test orthe natural-foreign test discussed above. Assuch, under the reasonable expectation test,liability is determined by a negligence-likerisk/benefit inquiry with the focus on thelikelihood that the product will cause injuryif not properly made, and the reasonable-ness of the actions (or inactions) taken by

the seller, supplier, and manufacturer in en-suring that the product was made safe.8

Under the foreign-nature test, liability willdepend on whether the customer shouldhave had the reasonable expectation of en-countering the object, whether foreign ornatural.9

PREVENTATIVE MEASURES Counsel should advise their clients ofthe following preventive steps that can betaken in order to minimize liability exposure. Supply chain management is critical topreventing future exposure. Open commu-nication between the Purchasing Team andFood Safety Management Team should be atop priority. This communication will workto limit public concern and identify any po-tential issues before the contaminated prod-uct reaches the initial stages of foodpreparation. Additionally, a well-trainedstaff with prior knowledge of suppliers,along with management enforced purchasespecifications and guidelines, will ensureproducts meet client, consumer, and legalexpectations. Once food products reach the client’sfood preparation stage, regular quality as-surance and product testing will help en-sure that any contaminated product orforeign materials do not enter the con-sumer product. Upon retaining these testproducts, laboratory testing for food aller-gens, shelf life studies, and contaminantidentification, will provide safety mecha-nisms for consumers while containing fu-ture legal costs and expenses for the client. Ultimately, if litigation does occur asthe result of foodborne contamination of aclient’s product, steps can be taken to min-imize the client’s exposure. In defendingsuch cases, attorneys must be cognizant todemand that plaintiff isolate and identifythe source of illness. And records of theplaintiff’s medical condition must be re-viewed immediately prior to and subse-quent to the date of loss, as these recordsmay shed light on the source of the illnessand potentially identify a differing cause of

the plaintiff’s alleged sickness. In the event of suit, the following ex-perts should be retained in order to ade-quately defend against a foodborne illnessclaim: (1) a standard of care expert in foodhandling requirements, regulatory require-ments, and industry practices; (2) an epi-demiologist, an expert in the study ofpatterns, causes, and effects of health anddisease conditions; and (3) a medical cau-sation clinician with expertise in infectiousdiseases. Retention of these experts early inlitigation will help to determine if all safetystandards and practices were adhered toand if the alleged illness was the cause ofyour client’s mishandling or contaminationof food products. Additionally, if these ex-perts opine that the plaintiff was harmed asa result of your client’s negligence, early di-agnosis of any wrongdoing will help deferlegal expenses and provide for early settle-ment resolution.

CONCLUSION Foodborne illness litigation is a compli-cated and ever changing regulatory area ofthe law. The FDA, in conjunction with vari-ous other regulatory bodies, continues topromulgate new regulations and rules con-cerning supply verification and in-housepreparation and hazard analysis. It is of theutmost importance that counsel exploreand understand the dynamic and evolvingcircumstances by which raw food eventuallyreaches consumers as a finished product inorder to adequately and effectively defendfoodborne illness lawsuits.

Nicholas M. Cardascia is apartner in the appellatepractice group at Ahmuty,Demers & McManus. Heis a 1988 graduate of St.John’s University School ofLaw. He advises on all as-pects of litigation and has

extensive appellate experience in all areas of thefirm’s practice.

Frank A. Cecere is theManaging Partner ofAhmuty, Demers &McManus. He has signif-icant experience handling awide range of the firm’slegal matters, includinghigh-exposure construction

site litigation, professional liability, premises li-ability, environmental/toxic tort actions and re-lated general liability cases. He can be reachedat Frank.Cecere@admlaw.com.

1 CDC Estimates on Foodborne Illness in the United States, http://www.cdc.gov/foodborneburden/estimates-overview.html

2 Rudloff v. Wendy’s Restaurant of Rochester, Inc., 12 Misc.3d 1081, 821 N.Y.S.2d 358 (2006) citing Denny v. Ford MotorCo., 87 N.Y.2d 248 (1995)

3 Mitchell v. T.G.I. Friday’s, 140 Ohio App3d 459 (2000) citing Mathews v. Maysville Seafoods, Inc. (1991), 76 OhioApp.3d 624, 602 N.E.2d 764 quoting Mix v. Ingersoll Candy Co. (1936), 6 Cal.2d 674, 682, 59 P.2d 144, 148

4 Clark v. Darden Restaurants, Inc., 2013 WL 1040525 NY PJI 2:1206 Vitiello v. Captain Bill’s Restaurant, 191 A.D.2d 429, 594 N.Y.S.2d 295 (2nd Dept., 1993), Stark v. Chock Full O’Nuts, 77

Misc.2d 553, 554, 356 N.Y.S.2d 403 (1974)7 Rudloff v. Wendy’s Restaurant of Rochester, Inc., 12 Misc.3d 1081, 821 N.Y.S.2d 358 (2006) citing Denny v. Ford Motor

Co., 87 N.Y.2d 248, 256-59, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995)8 Id., 12 Misc.3d 1081, 821 N.Y.S.2d 358 (2006) citing Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995)9 Mitchell v. T.G.I. Friday’s, 140 Ohio App3d 459 (2000) citing Mathews v. Maysville Seafoods, Inc. (1991), 76 Ohio

App.3d 624, 602 N.E.2d 764 quoting Mix v. Ingersoll Candy Co. (1936), 6 Cal.2d 674, 682, 59 P.2d 144, 148