The Current Landscape of Food Litigation from a Plaintiff’s Perspective

Salmonella Pot Pies  272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint were collected from ill persons in 35 states. Three of these patients’ pot pies yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.  Lesson - clear pattern of customer confusion over ready to eat and ready to cook – especially in microwaves.

Salmonella Veggie Booty? 69 reported cases of Salmonella Wandsworth in 23 states and 14 cases of Salmonella Typhimurium in six states who became ill after consuming Veggie Booty, a puffed vegetable snack food with a raw, dried vegetable coating. A total of 61 bags were tested in twelve states. Salmonella sp. was isolated from thirteen bags of Veggie Booty. Lesson – know your suppliers.

Salmonella Tomatoes, or was it Peppers? A final count of 1,442 ill in 43 states, D.C., and Canada, and those are the confirmed illnesses. Using CDC math - which estimates that for every documented case of salmonella in the US, another 38.5 go unreported - the total number sickened was probably closer to 50,000. Lesson – FDA and CDC are woefully underfunded and understaffed.

Botulism in a Can As of August 24, 2007, eight cases of botulism had been reported to CDC from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). All eight persons were reported to have consumed hot dog chili sauce made by Castleberry's Food Company. Castleberry’s manufacturing facility closed after decades in operation. Lesson – Invest in equipment and people.

E. coli and Campylobacter in Raw Milk

E. coli and Hamburger – Together Again  In 2007 and recalls; ground beef companies recalled more than 44 million pounds of E. coli O157:H7-contaminated meat.  In 2006 – 186,000 pound recalled.

E. coli is back – Why?  Complacency: After five years of progress with the E. coli problem, one wonders if meat processors have consciously or unconsciously slacked off, relaxing their testing procedures so that they are less likely to detect tainted meat.  Better Reporting: More doctors are more likely to recognize the symptoms of E. coli poisoning, thereby increasing the chances that an outbreak will be detected, leading to a recall.

E. coli is back – Why?  Global Warming: Too dry? One theory has it that drought through much of the southeast and southwest has led to more fecal dust wafting in the breezes through beef-slaughtering plants, creating new avenues for beef to become tainted. Too wet? This theory focuses on excessive rainfall in other regions, which leads to muddy pens that serve as an ideal vehicle for E. coli at meat-processing plants.

E. coli is back – Why?  High oil prices: The theory is that $3 gas has fueled the growth of ethanol plants. Those plants tend to be built next to feedlots because the plants produce a byproduct called distiller’s grains, which serves as an excellent feed for livestock. Problem is, according to research at Kansas State University, the distillers grain also increases the incidence of E. coli in the hindguts of cattle.

E. coli is back – Why?  Illegal Immigration: Wait, perhaps not. The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country last fall. Some are now hiring men from homeless missions and providing free transportation to many of them. Hmmm, an influx of unskilled, but U.S. workers, with no experience and high turnover.

Emerging Foodborne Pathogens  E. coli O111 linked to nearly 300 illnesses and one death in Oklahoma. E. coli O111 and other Shiga- toxin E. coli are NOT listed as an adulterant under the Federal Meat Inspection Act – Yet.  MRSA  Bird Flu  Mad Cow

Peanut Butter and Salmonella - Again  As of Monday, January 12, 2009, 410 persons infected with the outbreak strains of Salmonella Typhimurium have been reported from 43 states.  Three Deaths  5lb cans shipped to “Institutional Settings.”

And, then there is China

Manufacturer vs Retailer – Lines Blur  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….”  Retailer – “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.”

Manufacturer vs Retailer – Strict Liability  In states that have adopted the Restatement of Torts 2d, any seller in the chain of distribution of a defective product may be held strictly liable for harm caused by the product.  Even in states that have not adopted the Restatement approach, retailers may still be held liable under negligence theories through the apparent manufacturer doctrine.

Manufacturer – Common Law - Restatement  A retailer of a product manufactured by another, which holds itself out to the public as the product's manufacturer, has the status of a manufacturer and is subject to the same liability damage caused by a defective product.  Justification: Where a defendant puts out a product as its own, the purchaser has no means of ascertaining the identity of the true manufacturer, and it is thus fair to impose liability on the party whose actions effectively conceal the true manufacturer's identity.

What is the “Bottom Line?”  The entire chain of distribution is impacted

Why WE need to prevent this.

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