Issues Regarding Raw Milk Sales and Consumption

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Issues Regarding Raw Milk Sales and Consumption
What are the legal implications? William D.
Marler, Esq.
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Outbreaks linked to unpasteurized milk

• 1994 18 ill with E. coli O157H7
  pasteurized milk
• 1998 55 ill with E. coli O157H7 fresh
  cheese curds
• 2001 75 ill with Campylobacter raw milk
• 2003 62 ill with Salmonella raw milk
• 2005 18 ill with E. coli O157H7 raw milk
• 2006 27 ill with Campylobacter raw milk
• 2006 2 ill with Campylobacter raw milk

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Legal Implications
Raw Milk
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Strict Product Liability

• The manufacturer of a defective product is
  liable if the defect rendered the product
  unreasonably dangerous, and the defective product
  caused the victims injuries.

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Manufacturer

• Differs somewhat in every state
• Many states exclude product sellers who are not
  manufacturers
• Working definition entity that designs,
  constructs, or fabricates the product

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Key Elements

• Milk is a productraw or pasteurized
• Contaminated milk is unreasonably dangerous
• Thus, the manufacturer i.e. the dairy is
  strictly liable for injuries caused

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Related Issues

• Comparative fault
• Releases and Waivers
• Trade association liability
• Cow share arrangements

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Comparative Fault

• Personal injury damages are reduced by
  plaintiffs share of fault

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Examples of Comparative Fault

• Consumer milks the cow and fails to follow
  sanitary measures
• Consumer fails to refrigerate the raw milk
• Consumer aware of risk and ignores it

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Releases and Liability Waivers

• Are they enforceable?
• If so, whats the effect?

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Enforceability

• Rules differ from state to state
• Common elements of enforceability
• Conspicuouse.g. waiver clause is not in the
  fine print
• Claritye.g. waiver clause identifies the risk
• Meaningful opportunity to understande.g. the
  consumer has an opportunity to read and digest
  the terms of the contract

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Legal effect of waivers

• Enforceable waivers may bar claims for damages
• But most outbreaks involve kids who did not sign
  the waiver

Can a parent sign away his childs right to sue?
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Trade Association Liability

• Trade associations can be held liable for
  consumer injuries
• The crux of trade association liability is
  whether consumers rely on the associations
  information and expertise
• This depends, in part, on the associations
  prominence

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The price of Weston A. Prices prominence
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Cow Share Agreements

• Agreements that seek to avoid bans on unlicensed
  sale of raw milk
• Instead of selling raw milk,the farmer sells a
  portion of the cow
• Not a valid interpretation of Washington State
  licensing requirement

Cow Share Offshore Tax Shelter
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Questions?
Marler Clark LLP, PS 6600 Columbia Center 701
Fifth Avenue Seattle, Washington 98104 (206)
346-1888 www.marlerclark.com