SARAH L. BREW GREENE ESPEL, PLLP 200 South Sixth Street Minneapolis, Minnesota Causes of Action in Food-borne Illness Litigation

Greene Espel, PLLP

Basic Causes of Action Strict Liability Negligence Negligence Per Se Breach of Warranty Consumer Fraud Greene Espel, PLLP

Strict Liability Product was defective Defect caused injury Focus is on the product, not fault or lack of care Greene Espel, PLLP

Strict Liability Defective Product = “A reasonable consumer would not expect the food product to contain the harm-causing ingredient.” - R ESTATEMENT T HIRD, T ORTS : P RODUCT L IABILITY, § 7 Greene Espel, PLLP

Who Is Liable? Anyone “engaged in the business of selling or otherwise distributing” the defective food product. -Restatement Third, Torts: Product Liability § 7 Strict Liability FarmProcessor Restaurant or Store Greene Espel, PLLP

Strict Liability Statutory Exceptions Protecting Sellers Non-manufacturing seller may not be liable if  Manufacturer is solvent  Court has jurisdiction over manufacturer  Product sold in sealed container Greene Espel, PLLP

Washington State A seller, other than a manufacturer, has no liability unless: 1.No solvent manufacturer is subject to service 2.High probability judgment is unenforceable 3.Seller is a controlled subsidiary of the manufacturer 4.Seller provided plans or specifications for the product 5.Product was sold under a trade name or brand of the seller - R EV. C ODE W ASH. § Greene Espel, PLLP

Negligence Breach Caused Injury Breach of Duty Duty to Use Reasonable Care DesignManufactureTestMarket Focus is on the exercise of reasonable care Greene Espel, PLLP

Negligence Reasonable Care = Care exercised by a reasonable manufacturer/seller under similar circumstances  Industry Standards  State of the Art  Compliance with Governmental Regulations  Followed GAP, GMP, HACCP Greene Espel, PLLP

Negligence Per Se Violation of food-related regulation or laws is prima facie evidence of negligence by supplier of whey powder containing Salmonella. −Blommer Chocolate Co. v. Bongards Creameries, Inc., 635 F. Supp. 911, 917 (N.D. Ill. 1985) Greene Espel, PLLP

Negligence Per Se FDCA  Adulterated = “contains any poisonous or deleterious substance which may render it injurious to health.” 21 U.S.C. § 342(a)(1). Federal Regulations  FDA  USDA State Food Act  R EV. C ODE W ASH. § Local  Department of Health Greene Espel, PLLP

Express Warranty Breach of Warranty Greene Espel, PLLP “...This delicious blend of baby leaf greens contains a varied mix of hand selected premium grade product that is already washed and ready to eat....Available in ready to eat showbowls or loose in cartons for catering.” [Emphasis added.] “...This delicious blend of baby leaf greens contains a varied mix of hand selected premium grade product that is already washed and ready to eat....Available in ready to eat showbowls or loose in cartons for catering.” [Emphasis added.]

Implied Warranty Merchantibility Fitness for a particular purpose “A food processor impliedly warrants under R EV. C ODE W ASH. §69A that food products it sells are of merchantable quality and fit for the ordinary purpose for which they are intended.” - Jeffries v. Clark’s Restaurant Enterprises, Inc., 580 P.2d 1103 (Wash. App. 1978) Breach of Warranty Greene Espel, PLLP

Consumer Fraud Consumer Protection and Deceptive Trade Practices Statutes Attorney Fees Treble Damages Class Actions Greene Espel, PLLP