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

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

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)

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:”

“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?”

But, it cuts both ways - Enter the FBI

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.

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

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 7.72.010(2); see also Washburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)

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.

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

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

Bottom Line “Resistance is Futile

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).

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)

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

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

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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.

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

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

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.

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.”

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

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.”

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.

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.

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

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

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

What Will a Jury Think? A Jury = 12 Consumers

Questions? William D. Marler 6600 Columbia Tower 701 Fifth Avenue Seattle, Washington 98104 (206) 346-1890 bmarler@marlerclark.com