ABA Food and Supplements

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ABA Food and Supplements Fall Teleconference Octob
er 17, 2007
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Marler Clark, LLP PS

• Since 1993 Marler Clark has represented thousands
  of legitimate food illness victims in every
  State. Settlements and Verdicts total nearly
  300,000,000.
• Only a fraction of the victims who contact our
  office end up being represented.
• Who do we turn away?

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There is a Worm in my Freezer!
I recently found a whole, 2-cm long worm
packaged inside a Lean Cuisine frozen dinner.  I
have the worm in my freezer. I'm interested in
discussing my rights in this matter.  Could you
please contact me, or refer me to a firm that
may be able to give me assistance?
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Christening the Carpet

• I opened a box of Tyson Buffalo wings and saw an
  unusually shaped piece of chicken 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. 

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Lending a Helping Hand

• My husband recently opened a bottle of salsa and
  smelled an unusual odor but chose to eat it
  regardless, thinking that it was just his nose. 
  He found what appeared to be a rather large piece
  of animal or human flesh. He became very
  nauseated and I feel the manufacturer should be
  held responsible.

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The Chaff

• Just like health departments we need
• to quickly and reliably recognize
• unsupportable claims

How Do We Do It?
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Basic Tools of the Trade

• Symptoms
• Incubation
• Duration
• Food History
• Medical Attention
• Suspected source
• Others Ill

Health Department Involvement
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Matching Symptoms with Specific Characteristics
of Pathogens

• E. coli O157H7
• Hepatitis A
• Salmonella
• Shigella
• Campylobacter
• Vibrio

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Matching Incubation Periods

• Incubation Periods Of Common Pathogens

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Epidemiologic Assessment

• Time
• Place
• Person association
• Part of a recognized outbreak?

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Medical Attention

• Health care provider
• Emergency Room
• Hospitalization

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Health Department Involvement
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FOIA/Public Records Request
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Communicable Disease Investigation

• Reportable Disease Case Report Form
• Enteric/viral laboratory testing results
• Human specimens
• Environmentalspecimens

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Molecular Testing Results

• PFGE
• PulseNet

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Traceback Records
No. of outbreaksAssoc. with firm/Total no. of
outbreaks
Firm Name Firms A,C,D,G, H,I,L,M,N Growers
AC Firms B,E,F,J,K Firm O, Grower D Grower B
1/4 1/4 2/4 3/4 4/4
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Prior Health Department Inspections

• Improper Cooking Procedures
• Improper Refrigeration
• Improper Storage and Cooking Procedures
• Improper Sanitation

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Improper Cooking Procedures

• 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
  O157H7. 
• Review of health inspections revealed flawsin
  cooking methods.

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
splash onto a nearby bun.
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Improper Refrigeration

• A Chinese buffet-restaurant in Ohio was the
  suspected source of an E. coli O157H7 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 O157H7 in the
Jell-O was from raw meat juices dripping on the
Jell-O while it was solidifying in the
refrigerator.
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Improper Storage and Cooking

• Banquet-goers in southeastern Washington 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 usedthem as a wash on a
  specialty dessert that was not cooked
  thoroughly. 

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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?

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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)
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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)
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The Legal Standard Strict Liability

• The focus is on the product not the conduct
• They are liable if
• The product was unsafe
• The product caused the injury

STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO
FAULT.
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Its 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

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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

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Bottom Line

• Resistance is Futile

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

• Interrogatories
• Requests for production
• Requests for inspection
• Request for admission
• Third-party subpoenas
• Depositions
• Motions to compel

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But, Litigation Can Work A History Lesson

• Jack in the Box - 1993
• Odwalla - 1996

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A Real Life Example
Benton Franklin Health District

• OCTOBER 1998
• Call from Kennewick General Hospital infection
  control nurse
• Call from elementary school principal

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Preliminary Interviews

• Kennewick General Hospital
• Kennewick Family Medicine
• Interview tool
• Knowledge of community
• Asked questions from answers

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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

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Finley Schools

• Finley School District
• K-5
• Middle School
• High School
• Rural area
• Water supply
• Irrigation water
• Septic system
• Buses

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Epidemiologic Investigation

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

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Environmental Investigation

• Playground Equipment
• Puddles
• Topography
• Animals
• Water system
• Sewage system

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Environmental Investigation

• Hand Rails
• Dirty Can Opener
• Army Worms
• Stray dogs

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Environmental Investigation

• Kitchen inspection
• Food prep review
• Food sample collection
• Product trace back
• Central store
• USDA

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Results

• 8 confirmed casesof E. coli O157H7
• 3 probable cases
• 1 secondary case
• 8 PFGE matches

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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

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Results

• Food handling errors were noted in the kitchen
• There was evidence of undercooked taco meat
• No pathogen found in food samples

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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

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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

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The Basic Allegations

• Students at Finley Elementary School were
  infected with E. coli O157H7 as a result of
  eating contaminated taco meat
• The E. coli O157H7 was present in the taco meat
  because it was undercooked
• The resulting outbreak seriously injured the
  plaintiffs, almost killing one of them

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At Trial The Plaintiffs 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

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More of The Plaintiffs Case

• There were serious deficiencies in the Districts
  foodservice operation
• There were reasons to doubt the Districts
  explanation of how the taco meat was prepared
• The law only requires a 51 probability to prove
  the outbreaks cause-in-fact

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The School Districts Defense

• The taco meat was safe to eat because
• We love children
• We are always careful to cook it a lot

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The Taco Meal Recipe Card
Its not our fault, someone sold us contaminated
beef
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More of the School Districts Defense

• Weve never poisoned anyone before
• The health departments botched the investigation
  and jumped to a hasty conclusion
• Something else caused the outbreak

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What Will a Jury Think?
A Jury

12 Consumers
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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

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In The End

• After a six week trial, plaintiffs were awarded
  4,750,000
• The District appealed the verdict on grounds that
  product liability law did not apply
• September 2003 the WA State Supreme Court
  dismissed the Districts case
• Final award - 6,068,612.85

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Real Events Happening Daily to Real People

• 76 million cases of foodborne illness annually1
• 325,000 hospitalizations
• 5,000 deaths
• Medical costs, productivity losses, costs of
  premature death costs 6.9 billion dollars a year2

1Mead PS, et al., Food-related illness and death
in the United States, Emerg Infect Dis.
5607-614. 1999. 2 Buzby, et al. Product
Liability and Microbial Foodborne Illness
(2001)ERS Agricultural Economic Report No. 799.