1. Foodborne Illness Litigation
Ryan M. Osterholm
Pritzker Hageman, P.A.
Minneapolis, Minnesota

2. Foodborne Illness Law
Pritzker Hageman, P.A., is one of the few law firms in the country with a practice devoted to Plaintiffs’ foodborne illness claims.
Pritzker Hageman, P.A., has represented individuals sickened in nearly every major foodborne illness outbreak in the country over the last decade.

3. Foodborne Illness Law History Strict liability standard
Common foodborne pathogens
Damages
Challenges

4. Longstanding Public Policy: Food Must Be Safe
Prosser traces food liability to William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) 69 Yale L.J. 1099, 1103, (1960))
Nineteenth century courts imposed liability on food sellers on basis of “special implied warranty” applicable to food

5. Modern Food Regulation
Upton Sinclair’s The Jungle (1906)
Public outcry leads to passage of the Federal Food and Drug Act (1906) (1938).
States pass analogous laws, often with more teeth
FSMA

6. Modern Strict Liability
Food cases were the first type of cases where courts imposed liability, regardless of privity or negligence. By 1960, 17 jurisdictions imposed “strict” liability on food seller.
Today, courts universally hold food producers, from restaurants to farmers, strictly liable.

7. Who is legally responsible?
Usually Everyone
Shipper
Depends heavily on state law
Producer
Intermediary seller
End Seller
Auditor

8. Each player generally has different motivation
Sometimes these motivations are more than money
Reputation in food business is of the utmost importance

9. What is a foodborne illness case?
Strict product liability: focus on product not conduct.
If the food is unsafe to a reasonable consumer, it is defective and the producer is liable.
Key issues:
The allegedly contaminated food was consumed. How do you prove it was contaminated?
The person ate multiple food products at same time. How do you prove which was contaminated?

10. What is defective?
A Food Product Is DEFECTIVE if it is not Reasonably Safe—
That is, unsafe beyond that which is expected by a reasonable consumer.
Some pathogens in some products are considered adulterants, making a product per se defective and illegal to manufacture and sell if contaminated. This process developing, as food becomes safer, public has less tolerance for pathogens in food.
Undesirable defense strategy to argue pathogens are supposed to be in food.

11. Common Foodborne Pathogens
E. coli
Salmonella
Shigella
Campylobacter
Listeria monocytogenes
Norovirus
Hepatitis A

12. Damages?
Like any other case, even if there are good provable facts, there has to be damages.
A few cases have significant damages, but many more do not.
What are the medical specials? This calculus is similar to other PI and product cases.
It can be quite expensive to pursue a foodborne illness case.
The cases we generally agree to pursue have hospitalizations and many have long-term , medical complications.

13. Strong Foodborne Illness Cases
Exposure
Correct timing
Microbiological link
Epidemiology
Solvent defendant
Significant damages

14. Negligence Do not need to prove negligence to recover But…
Having evidence of negligent conduct can be very important in telling your story to a jury or pressure for settlement.
Negligence and outbreaks frequently go hand-in-hand. Companies doing things the right way rarely hear from us or make the news for the wrong reasons.

15. Takeaways Most foodborne illness cases are not recoverable
Even if they are, it must be the right case
Records, records, records!
If it is the right case, be prepared for long journey
Each case is unique

16. Foodborne Illness Litigation
Ryan Osterholm
Pritzker Hageman, P.A.
Minneapolis, Minnesota