Contaminated Food – How to Evaluate Risk Liability Claims Subcommittee Meeting Washington DC September 17, 2009

Real Events Happening Daily to Real People  76 million cases of foodborne illness annually  325,000 hospitalizations  5,000 deaths  Medical costs, productivity losses, costs of premature death costs $6.9 billion dollars a year  May be as high as $137 billion dollars a year

And It is Happening Today  The Colorado Department of Public Health and Environment (CDPHE) issued a press release announcing an outbreak of E. coli O157:H7.  The CDC eventually revealed that 80 people in 33 states have been sickened, and that epidemiological evidence was strong that the vehicle was Nestle Toll House uncooked cookie dough

Marler Clark, LLP PS  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.  Who do we turn away?  Why?

The Chaff Just like Insurers 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

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/MLVA  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

The Legal Arsenal  Interrogatories  Requests for production  Requests for inspection  Request for admission  Third-party subpoenas  Depositions  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

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

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 ate 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

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  Mediation offer $500,000 – “last and final”

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

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

QUESTIONS?