Real Events Happening Daily to Real People 1 Mead PS, et al., Food-related illness and death in the United States, Emerg Infect Dis. 5: Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)ERS Agricultural Economic Report No million cases of foodborne illness annually 1 76 million cases of foodborne illness annually 1 325,000 hospitalizations 325,000 hospitalizations 5,000 deaths 5,000 deaths Medical costs, productivity losses, costs of premature death costs 6.9 billion dollars a year 2 Medical costs, productivity losses, costs of premature death costs 6.9 billion dollars a year 2

Marler Clark, LLP PS Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State. 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. Only a fraction of the victims who contact our office end up being represented. Who do we turn away? Who do we turn away? Why? Why?

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. 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.

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.

The Chaff Just like health departments we need to quickly and reliably recognize unsupportable claims How Do We Do It?

Basic Tools of the Trade Symptoms Symptoms Incubation Incubation Duration Duration Food History Food History Medical Attention Medical Attention Suspected source Suspected source Others Ill Others Ill Health Department Involvement

Matching Symptoms with Specific Characteristics of Pathogens E. coli O157:H7 E. coli O157:H7 Hepatitis A Hepatitis A Salmonella Salmonella Shigella Shigella Campylobacter Campylobacter Vibrio Vibrio

Matching Incubation Periods Incubation Periods Of Common Pathogens PATHOGENINCUBATION 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 hours. Shigella 12 hours to 7 days, typically 1-3 days. Hepatitis A15 to 50 days, typically days. Listeria 3 to 70 days, typically 21 days. Norovirus24 to 72 hours, typically 36 hours.

Epidemiologic Assessment Time Time Place Place Person association Person association Part of a recognized outbreak? Part of a recognized outbreak?

Medical Attention Health care provider Health care provider Emergency Room Emergency Room Hospitalization Hospitalization

Health Department Involvement

FOIA/Public Records Request

Communicable Disease Investigation Reportable Disease Case Report Form Reportable Disease Case Report Form Enteric/viral laboratory testing results Enteric/viral laboratory testing results – Human specimens – Environmental specimens

Molecular Testing Results PFGE PFGE PulseNet 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 GROWER A GROWER B GROWER B GROWER D GROWER C Firm Name Firms A,C,D,G, H,I,L,M,N Growers A&C Firms B,E,F,J,K Firm O, Grower D Grower B No. of outbreaks Assoc. with firm/ Total no. of outbreaks 1/4 2/4 3/4 4/4

Prior Health Department Inspections Improper Cooking Procedures Improper Cooking Procedures Improper Refrigeration Improper Refrigeration Improper Storage and Cooking Procedures Improper Storage and Cooking Procedures Improper Sanitation Improper Sanitation

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 splash onto a nearby bun. A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain. A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain. Her illness was not culture-confirmed. Her illness was not culture-confirmed. No food on site tested positive for E. coli O157:H7. No food on site tested positive for E. coli O157:H7. Review of health inspections revealed flaws in cooking methods. 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. A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak. No contaminated leftover food was found. No contaminated leftover food was found. A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission. 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. 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. Banquet-goers in tested positive for Salmonella. Leftover food items had been discarded or tested negative. 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. 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 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 (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 The focus is on the product; not the conduct They are liable if: They are liable if: The product was unsafe The product was unsafe The product caused the injury The product caused the injury

Its called STRICT Liability for a Reason The only defense is prevention The only defense is prevention Wishful thinking does not help 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 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 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 Puts the cost of settlements and verdicts directly onto those (manufacturers) that profit from the product Creates incentive not to let it happen again 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 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; Punish the defendant for its conduct; Deter others from similar conduct. Deter others from similar conduct. Historically, such damages were awarded to discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior.

The Legal Arsenal Interrogatories Interrogatories Requests for production Requests for production Requests for inspection Requests for inspection Request for admission Request for admission Third-party subpoenas Third-party subpoenas Depositions Depositions Motions to compel Motions to compel

Litigation At Work – A Bit(e) of History Jack in the Box Odwalla

The Plaintiff

A Real Life Example Benton Franklin Health District OCTOBER 1998 Call from Kennewick General Hospital infection control nurse Call from Kennewick General Hospital infection control nurse Call from elementary school principal Call from elementary school principal

Preliminary Interviews Kennewick General Hospital Kennewick General Hospital Kennewick Family Medicine Kennewick Family Medicine Interview tool Interview tool – Knowledge of community – Asked questions from answers

Case Finding Established communication with area laboratories, hospitals and physicians Established communication with area laboratories, hospitals and physicians Notified the Washington State Department of Health Epidemiology office Notified the Washington State Department of Health Epidemiology office Established case definition early and narrowed later Established case definition early and narrowed later

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

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

Environmental Investigation Playground Equipment Playground Equipment – Puddles – Topography – Animals Water system Water system Sewage system Sewage system

Hand Rails Hand Rails Dirty Can Opener Dirty Can Opener Army Worms Army Worms Stray dogs Stray dogs Environmental Investigation

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

Results 8 confirmed cases of E. coli O157:H7 8 confirmed cases of E. coli O157:H7 3 probable cases 3 probable cases 1 secondary case 1 secondary case 8 PFGE matches 8 PFGE matches

Results Ill students in grades K-5 Ill students in grades K-5 All but one ill child at a taco meal All but one ill child at a taco meal No other common exposures detected No other common exposures detected No ill staff members No ill staff members

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

Conclusions Point source outbreak related to exposure at Finley Elementary School Point source outbreak related to exposure at Finley Elementary School A source of infection could not be determined A source of infection could not be determined The most probable cause was consuming the ground beef taco The most probable cause was consuming the ground beef taco

The Lawsuit Eleven minor plaintiffs: 10 primary cases, 1 secondary case Eleven minor plaintiffs: 10 primary cases, 1 secondary case Parents also party to the lawsuit, individually and as guardians ad litem Parents also party to the lawsuit, individually and as guardians ad litem Two defendants: Finley School District and Northern States Beef 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 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 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 The resulting outbreak seriously injured the plaintiffs, almost killing one of them

At Trial: The Plaintiffs Case The State and the BFHD conducted a fair and thorough investigation 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 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 The conclusion reached as a result of the investigation was the correct one

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

The School Districts Defense The taco meat was safe to eat because: The taco meat was safe to eat because: – We love children – We are always careful to cook it a lot

The Taco Meal Recipe Card Its not our fault, someone sold us contaminated beef

More of the School Districts Defense Weve never poisoned anyone before Weve never poisoned anyone before The health departments botched the investigation and jumped to a hasty conclusion The health departments botched the investigation and jumped to a hasty conclusion Something else caused the outbreak Something else caused the outbreak

What Will a Jury Think? A Jury = 12 Consumers

What Did This Jury Think? The investigation was fair and thorough The investigation was fair and thorough More probably than not, undercooked taco meat caused the children to become ill 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 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 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 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 September 2003 the WA State Supreme Court dismissed the Districts case Final award - $6,068, Final award - $6,068,612.85

Questions?