1. Examining Cases of Legal Liability
November 14, 2006
Examining Cases of Legal Liability
Or, why I always win!

2. To Put Things into Perspective
Microbial pathogens in food cause an estimated 76 million cases of human illness annually in the United States
325,000 hospitalized
5,000 deaths

3. Why what we do is Important
“… contaminated food products caused more deaths each year than the combined totals of all 15,000 products regulated by the U.S. Consumer Product Safety Commission; these products caused only 3,700 deaths in 1996.”
Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)

4. Cracking the Legal Code – What Marler Clark Actually Does
Since 1993 Marler Clark has represented thousands of food illness victims in over 40 States.
We only prosecute a fraction of the cases that contact our offices, an example of our “missed opportunities:”

5. “Christening” the Carpet
“I opened a box of Tyson Buffalo wings and dumped them out on a plate to be cooked in the microwave.  An unusually shaped piece caught my eye 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.  What do you think?”

6. But, it cuts both ways - Enter the FBI

7. FDA food code instructor
That unfortunate fact doesn’t serve [ ] the law profession, but I assure you people like myself in hospitality training and certification are doing [our] best to put people like you out of business, first and foremost for
the customers[‘] safety, secondly because for once it would be to take food out a lawyer’s mouth Sort
of ironic, you shut down restaurants, I shut down lawyers Lol
Have a bad, bad day you Parasite.

8. Basic Tools of the Trade – How We Do It
Symptoms
Incubation
Duration
Food History
Medical Attention
Suspected Source
Others Ill

9. 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?

10. 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)

11. 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)

12. 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.

13. 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

14. 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

15. Bottom Line
“Resistance is Futile

16. Negligence is the legal standard applied to non-manufacturers
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. See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn. App. 397, 404 (1993).

17. The Legal Reality
“Lawsuits would seem to provide important feedback to these firms about how much they should invest in food safety.”
“[However,] much of the costs of illness borne by people who become ill … are not reimbursed by food firms responsible for an illness.”
Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)

18. Why Does the Legal System Sometimes Fail?
Manufacturer Not Caught
No Known Cause
What Food or Drink was It?
Victim’s Stool not Tested
What Bacteria or Virus?
Apparent Isolated Case
No Health Department Investigation
No PFGE, No PulseNet
Unequal Power Between Victim and Manufacturer

19. But, Litigation Can Work – A History Lesson
Jack in the Box
Odwalla

21. We would like to acknowledge the time and effort you have taken to contribute to the success of JACK IN THE BOX by enclosing this pen/highlighter. Each person submitting suggestions is eligible to receive one gift per quarter with their first suggestion.

24. 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.

25. Industry Standards – Increased cook times
In nearly every case, industry standards improve after an outbreak of foodborne illnesses
However, it occurs only after they are caught.
– Increased cook times
– Pasteurization of apple juice

26. Lettuce and Spinach 19 E. coli outbreaks since 1995
409 reported illnesses
two deaths
Fresh or fresh-cut lettuce or spinach implicated as outbreak vehicle
8 outbreaks traced back to produce from Salinas, California

27. Recent E. coli Outbreaks
July 2002 – WA Dance Camp
50 dance campers sickened, several hospitalized, one with life-long kidney damage
“Pre-washed” lettuce
September 2003 – CA Restaurant
40 patrons ill
Salads prepared with bagged, “pre-washed” lettuce
October 2003 – CA Retirement Center
13 residents sickened, 2 died
“Pre-washed” spinach
Lettuce from all three outbreaks came from California’s Salinas Valley.

28. Prior FDA Warnings
1998 – FDA “Guide to Minimize Microbial Food Safety Hazards for Fruits and Vegetables.”
Specifically designed to assist growers and packers in the implementation of safer manufacturing practices.
2004 – FDA letter to the lettuce and tomato industries
To “make them aware of [FDA’s] concerns regarding continuing outbreaks associated with these two commodities and to encourage the industries to review their practices.”

29. 2005 Lettuce E. coli Outbreak
23 laboratory-confirmed cases of E. coli O157:H7; 7 epi-linked cases
September 16 to September 30 onset
2 cases of HUS
Cases in MN, OR, and WI
Statistically associated with eating Dole pre- packaged lettuce
“Smoking Gun” –
found in bag

30. FDA – Adulterated – 2005
FDA cited to research linking some or all of the outbreaks to sewage exposure, animal waste, and other contaminated water sources.
FDA considers “adulterated” any ready to eat crops produced under unsanitary conditions §402(a)(4) of the Food, Drug, and Cosmetic Act
“In light of continuing outbreaks associated with fresh and fresh-cut lettuce and other leafy greens, particularly from California, we are issuing this second letter to reiterate our concerns and to strongly encourage firms in your industry to review their current operations.”

31. CADOHS to Western Growers - 2006
A reassessment of current manure composting regulations…in light of recent scientific findings.
An assessment of…septic tank systems that may leak/flow into agricultural ditches or creeks bordering fields used to grow ready-to-eat produce.
An assessment of…farm worker access to portable toilets and hand washing facilities.

32. CADOHS to Western Growers – 2006, cont.
An assessment of the locations of fields known to flood frequently.
An assessment of the need for…mandatory GAPs and/or HAACP Plans.

33. E. coli Outbreak 2006
204 persons infected with outbreak strain of E. coli O157:H7 from 26 states.
102 hospitalized
31 developed hemolytic-uremic syndrome (HUS)
Three confirmed deaths
Maryland investigating possible fourth

34. E. coli Outbreak 2006 E. coli O157:H7
Isolated from 13 packages of Dole spinach
“DNA fingerprints” of all 13 match the outbreak strain of ill people
Same strain found on 1 of 4 farms that supplied spinach on a single manufacturing facility on a particular day - cow pies, water source and wild pig gut

35. Litigation Status
At least 16 suits filed in 11 States - State and Federal Courts
Defendants - Dole, Natural Selection Foods
Soon to be named farm, ranch

36. What Will a Jury Think?
A Jury =
12 Consumers

37. Questions? William D. Marler 6600 Columbia Tower 701 Fifth Avenue
Seattle, Washington
(206)