1. Contaminated Food – Minneapolis How I do what I do!
June 19, 2009
How I do what I do!

2. Real Events Happening Daily to Real People
76 million cases of foodborne illness annually1
325,000 hospitalizations
5,000 deaths
Medical costs, productivity losses, costs of premature death costs 6.9 billion dollars a year2
1Mead PS, et al., Food-related illness and death in the United States, Emerg Infect Dis. 5:
2 Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)ERS Agricultural Economic Report No. 799.

3. 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?

4. “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.” 

5. 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.

6. How Do We Do It? The Chaff Just like health departments we need
to quickly and reliably recognize
unsupportable claims
How Do We Do It?

7. Basic Tools of the Trade
Symptoms
Incubation
Duration
Food History
Medical Attention
Suspected source
Others Ill
Health Department Involvement

8. Matching Symptoms with Specific Characteristics of Pathogens
E. coli O157:H7
Hepatitis A
Salmonella
Shigella
Campylobacter
Vibrio

9. Matching Incubation Periods
Incubation Periods Of Common Pathogens
PATHOGEN
INCUBATION 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 A
15 to 50 days, typically days.
Listeria
3 to 70 days, typically 21 days.
Norovirus
24 to 72 hours, typically 36 hours.

10. Epidemiologic Assessment
Time
Place
Person association
Part of a recognized outbreak?

11. Medical Attention
Health care provider
Emergency Room
Hospitalization

12. Health Department Involvement

13. FOIA/Public Records Request

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

15. Molecular Testing Results
PFGE
PulseNet

16. No. of outbreaks Assoc. with firm/ Total no. of outbreaks
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 D
GROWER C
No. of outbreaks Assoc. with firm/ Total no. of outbreaks
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
1/4
2/4
3/4
4/4

17. Prior Health Department Inspections
Improper Cooking Procedures
Improper Refrigeration
Improper Storage and Cooking Procedures
Improper Sanitation

18. Improper Cooking Procedures
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.
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.

19. 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.

20. Improper Storage and Cooking
Banquet-goers in 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. 

22. 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?

23. 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., Wash. 622 (1913)

24. 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)

25. The Legal Standard: Strict Liability
The focus is on the product; not the conduct
They are liable if:
The product was unsafe
The product caused the injury
STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT.

26. 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

27. 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

28. The Legal Arsenal Interrogatories Requests for production
Requests for inspection
Request for admission
Third-party subpoenas
Depositions
Motions to compel

29. Litigation At Work – A Bit(e) of History
Jack in the Box
Odwalla

32. The Plaintiff

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

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

36. 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

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

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

39. Environmental Investigation
Playground Equipment
Puddles
Topography
Animals
Water system
Sewage system

40. Environmental Investigation
Hand Rails
Dirty Can Opener
Army Worms
Stray dogs

41. Environmental Investigation
Kitchen inspection
Food prep review
Food sample collection
Product trace back
Central store
USDA

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

43. 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

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

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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

51. The Taco Meal Recipe Card
It’s not our fault, someone sold us contaminated beef

52. 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

53. What Will a Jury Think?
A Jury =
12 Consumers

54. 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

55. 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

56. Why These Cases Never Go To Trial