ABA Food and Supplements Fall Teleconference October 17, 2007

Marler Clark, LLP PS  Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State. Settlements and Verdicts – total nearly $300,000,000.  Only a fraction of the victims who contact our office end up being represented.  Who do we turn away?

There is a Worm in my Freezer! “I recently found a whole, 2-cm long worm packaged inside a Lean Cuisine frozen dinner. I have the worm in my freezer. I'm interested in discussing my rights in this matter. Could you please contact me, or refer me to a firm that may be able to give me assistance?”

“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.”

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  Incubation  Duration  Food History  Medical Attention  Suspected source  Others Ill Health Department Involvement

Matching Symptoms with Specific Characteristics of Pathogens  E. coli O157:H7  Hepatitis A  Salmonella  Shigella  Campylobacter  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  Place  Person association  Part of a recognized outbreak?

Medical Attention  Health care provider  Emergency Room  Hospitalization

Health Department Involvement

FOIA/Public Records Request

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

Molecular Testing Results  PFGE  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 Refrigeration  Improper Storage and Cooking Procedures  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.  Her illness was not culture-confirmed.  No food on site tested positive for E. coli O157:H7.  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.  No contaminated leftover food was found.  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.” 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 southeastern Washington tested positive for Salmonella.  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.

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  They are liable if:  The product was unsafe  The product caused the injury

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

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;  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  Requests for production  Requests for inspection  Request for admission  Third-party subpoenas  Depositions  Motions to compel

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

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

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

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

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

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

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

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

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

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

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

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

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

The Lawsuit  Eleven minor plaintiffs: 10 primary cases, 1 secondary case  Parents also party to the lawsuit, individually and as guardians ad litem  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  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

At Trial: The Plaintiff’s Case  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  The conclusion reached as a result of the investigation was the correct one

More of The Plaintiff’s Case  There were serious deficiencies in the District’s foodservice operation  There were reasons to doubt the District’s explanation of how the taco meat was prepared  The law only requires a 51% probability to prove the outbreak’s cause-in-fact

The School District’s Defense  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 It’s not our fault, someone sold us contaminated beef

More of the School District’s Defense We’ve never poisoned anyone before The health departments botched the investigation and jumped to a hasty conclusion 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  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

In The End  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  September 2003 the WA State Supreme Court dismissed the District’s case  Final award - $6,068,612.85

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  76 million cases of foodborne illness annually 1  325,000 hospitalizations  5,000 deaths  Medical costs, productivity losses, costs of premature death costs 6.9 billion dollars a year 2