Real Events Happening Daily to Real People 1 Mead PS, et al., Food-related illness and death in the United States, Emerg Infect Dis. 5:607-614. 1999.

Real Events Happening Daily to Real Real Events Happening Daily to Real PeoplePeople

1Mead PS, et al., Food-related illness and death in the United States, Emerg Infect Dis. 5:607-614. 1999.2 Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)ERS Agricultural Economic Report No. 799.

76 million cases of foodborne 76 million cases of foodborne illness annuallyillness annually11

325,000 hospitalizations325,000 hospitalizations

5,000 deaths5,000 deaths

Medical costs, productivity Medical costs, productivity losses, costs of premature death losses, costs of premature death costs costs 6.9 billion6.9 billion dollars a year dollars a year22

Marler Clark, LLP PSMarler Clark, LLP PS

Since 1993 Marler Clark Since 1993 Marler Clark has represented thousands has represented thousands of legitimate food illness of legitimate food illness victims in every State.victims in every State.

Only a fraction of the Only a fraction of the victims who contact our victims who contact our office end up being office end up being represented.represented.

Who do we turn away?Who do we turn away?

Why?Why?

““Christening” the CarpetChristening” the Carpet

““I opened a box of Tyson I opened a box of Tyson Buffalo wings and saw an Buffalo wings and saw an unusually shaped piece of unusually shaped piece of chicken and I picked it up.  chicken and I picked it up.  When I saw that the ‘piece’ When I saw that the ‘piece’ had a beak, I got sick to my had a beak, I got sick to my stomach. My lunch and diet stomach. My lunch and diet coke came up and I managed coke came up and I managed to christen my carpet, to christen my carpet, bedding and clothing. I want bedding and clothing. I want them to at least pay for them to at least pay for cleaning my carpet etc.” cleaning my carpet etc.” 

Lending a Helping HandLending a Helping Hand

““My husband recently My husband recently opened a bottle of salsa opened a bottle of salsa and smelled an unusual and smelled an unusual odor but chose to eat it odor but chose to eat it regardless, thinking that regardless, thinking that it was just his nose.  He it was just his nose.  He found what appeared to found what appeared to be a rather large piece of be a rather large piece of animal or human flesh. animal or human flesh. He became very He became very nauseated and I feel the nauseated and I feel the manufacturer should be manufacturer should be held responsible.held responsible.

The ChaffThe Chaff

Just like health departments we needJust like health departments we need

to quickly and reliably recognize to quickly and reliably recognize

unsupportable claimsunsupportable claims

How Do We Do It?

Basic Tools of the TradeBasic Tools of the Trade

SymptomsSymptoms IncubationIncubation DurationDuration Food HistoryFood History Medical AttentionMedical Attention Suspected sourceSuspected source Others IllOthers Ill

Health Department Involvement

Matching Symptoms with Specific Matching Symptoms with Specific Characteristics of PathogensCharacteristics of Pathogens

E. coliE. coli O157:H7 O157:H7 Hepatitis AHepatitis A SalmonellaSalmonella ShigellaShigella CampylobacterCampylobacter Vibrio Vibrio

Matching Incubation PeriodsMatching Incubation Periods

Incubation Periods Of Common PathogensIncubation 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 18-36 hours.

Shigella 12 hours to 7 days, typically 1-3 days.

Hepatitis A 15 to 50 days, typically 25-30 days.

Listeria 3 to 70 days, typically 21 days.

Norovirus 24 to 72 hours, typically 36 hours.

Epidemiologic AssessmentEpidemiologic Assessment

TimeTime

PlacePlace

Person associationPerson association

Part of a recognized Part of a recognized outbreak?outbreak?

Medical AttentionMedical Attention

Health care Health care providerprovider

Emergency RoomEmergency Room

HospitalizationHospitalization

Health Department InvolvementHealth Department Involvement

FOIA/Public Records RequestFOIA/Public Records Request

Communicable Disease InvestigationCommunicable Disease Investigation

Reportable Disease Reportable Disease Case Report FormCase Report Form

Enteric/viral Enteric/viral laboratory laboratory testing resultstesting results– Human Human

specimensspecimens– EnvironmentalEnvironmental

specimensspecimens

Molecular Testing ResultsMolecular Testing Results

PFGEPFGE

PulseNetPulseNet

Traceback RecordsTraceback Records

POS APOS A

POS BPOS B

POS CPOS C

POS DPOS D

FIRM AFIRM A

FIRM BFIRM B

FIRM CFIRM C

FIRM DFIRM D

FIRM EFIRM E

FIRM GFIRM G

FIRM HFIRM H

FIRM FFIRM F

FIRM IFIRM I

FIRM JFIRM J

FIRM KFIRM K

FIRM LFIRM L

FIRM MFIRM M

FIRM NFIRM N

FIRM OFIRM O

GROWERA

GROWERA

GROWERB

GROWERB

GROWERD

GROWERD

GROWERC

GROWERC

Firm NameFirms A,C,D,G,H,I,L,M,NGrowers A&CFirms B,E,F,J,KFirm O, Grower DGrower B

No. of outbreaksAssoc. with firm/

Total no. of outbreaks

1/41/42/43/44/4

Prior Health Department InspectionsPrior Health Department Inspections

Improper Cooking Improper Cooking ProceduresProcedures

Improper RefrigerationImproper Refrigeration

Improper Storage Improper Storage and Cooking and Cooking ProceduresProcedures

Improper SanitationImproper Sanitation

Improper Cooking ProceduresImproper 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.

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 A young girl suffered HUS after eating a hamburger from a midsized southern hamburger from a midsized southern California fast-food chain.  California fast-food chain. 

Her illness was not culture-confirmed.Her illness was not culture-confirmed.

No food on site tested positive No food on site tested positive for for E. coliE. coli O157:H7.  O157:H7. 

Review of health inspections revealed flawsReview of health inspections revealed flawsin cooking methods.in cooking methods.

Improper RefrigerationImproper Refrigeration

A Chinese buffet-restaurant in Ohio A Chinese buffet-restaurant in Ohio was the suspected source of an was the suspected source of an E. E. colicoli O157:H7 outbreak. O157:H7 outbreak.

No contaminated leftover food was No contaminated leftover food was found.  found. 

A number of ill patrons were A number of ill patrons were children. children. Jell-O was suspected as the vehicle Jell-O was suspected as the vehicle of transmission.of transmission.

Health Department report noted Health Department report noted “raw meat stored above the Jell-O “raw meat stored above the Jell-O in the refrigerator.”  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 CookingImproper Storage and Cooking

Banquet-goers in tested Banquet-goers in tested positive for Salmonella.positive for Salmonella.

Leftover food items had been Leftover food items had been discarded or tested discarded or tested negative.  negative. 

Restaurant had “pooled” Restaurant had “pooled” dozens, if not hundreds, of dozens, if not hundreds, of raw eggs in a single bucket raw eggs in a single bucket for storage overnight, then for storage overnight, then used them as a “wash” on a used them as a “wash” on a specialty dessert that was specialty dessert that was not cooked thoroughly. not cooked thoroughly. 

Civil Litigation – A Tort – How it Civil Litigation – A Tort – How it Really WorksReally 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 Strict Liability for Food – a Bit(e) of HistoryHistory

“… 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?Who is a Manufacturer?

A “manufacturer” is defined as a A “manufacturer” is defined as a “product “product seller who designs, produces, seller who designs, produces, makes, fabricates, constructs, makes, fabricates, constructs, or remanufactures the relevant or remanufactures the relevant product or component part of a product or component part of a product before its sale to product before its sale to a user or consumer….” a user or consumer….”

RCW 7.72.010(2); RCW 7.72.010(2); see alsosee also Washburn v. Washburn v. Beatt Equipment CoBeatt Equipment Co., 120 Wn.2d 246 (1992) ., 120 Wn.2d 246 (1992)

The Legal Standard: Strict LiabilityThe Legal Standard: Strict Liability

STRICT LIABILITY IS LIABILITY STRICT LIABILITY IS LIABILITY WITHOUT WITHOUT REGARD TO REGARD TO FAULT.FAULT.

The focus is on the product; not the The focus is on the product; not the conductconduct

They are liable if:They are liable if:

The product was The product was unsafeunsafe

The product The product causedcaused the injury the injury

It’s called It’s called STRICTSTRICT Liability for a Liability for a ReasonReason

The only defense is preventionThe only defense is prevention

Wishful thinking does not helpWishful thinking does not help

If they manufacture a product If they manufacture a product that causes someone to be sick that causes someone to be sick they are going to pay they are going to pay IFIF they they get caughtget caught

Why Strict Liability?Why Strict Liability?

Puts pressure on Puts pressure on those (manufacturers) those (manufacturers) that most likely could that most likely could correct the problem correct the problem in the first placein the first place

Puts the cost of Puts the cost of settlements and settlements and verdicts directly onto verdicts directly onto those (manufacturers) those (manufacturers) that profit from the that profit from the productproduct

Creates incentive not Creates incentive not to let it happen againto let it happen again

Bottom LineBottom Line

““Resistance is Futile”Resistance is Futile”

The reason for excluding The reason for excluding non-manufacturing retailers non-manufacturing retailers from strict liability is to from strict liability is to distinguish between those distinguish between those who have actual control over who have actual control over the product and those who the product and those who act as mere conduits in the act as mere conduits in the chain of distribution.chain of distribution.

Negligence Is The Legal Standard Applied To Non-Manufacturers

See See Butello v. S.A. Woods-Yates Am. Mach. CoButello v. S.A. Woods-Yates Am. Mach. Co.,., 72 Wn. App. 397, 404 (1993).72 Wn. App. 397, 404 (1993).

Punitive (or Exemplary) Damages:Punitive (or Exemplary) Damages:

Punish the Punish the defendant for its defendant for its conduct;conduct;

Deter others from Deter others from similar conduct.similar conduct.

Historically, such damages were awarded to discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior.

The Legal ArsenalThe Legal Arsenal

InterrogatoriesInterrogatories Requests for Requests for

productionproduction Requests for Requests for

inspectioninspection Request for Request for

admissionadmission Third-party Third-party

subpoenassubpoenas DepositionsDepositions Motions to compelMotions to compel

Litigation At Work – A Bit(e) of HistoryLitigation At Work – A Bit(e) of History

Jack in the Box - Jack in the Box - 19931993

Odwalla - Odwalla - 19961996

The PlaintiffThe Plaintiff

A Real Life ExampleA Real Life Example

Benton Franklin Health DistrictOCTOBER 1998OCTOBER 1998

Call from Kennewick Call from Kennewick General Hospital infection General Hospital infection control nursecontrol nurse

Call from elementary school principalCall from elementary school principal

Preliminary InterviewsPreliminary Interviews

Kennewick General Kennewick General HospitalHospital

Kennewick Family Kennewick Family MedicineMedicine

Interview toolInterview tool– Knowledge of Knowledge of

communitycommunity– Asked questions Asked questions

from answersfrom answers

Case FindingCase Finding

Established communication with Established communication with area laboratories, hospitals and area laboratories, hospitals and physiciansphysicians

Notified the Washington State Notified the Washington State Department of Health Epidemiology Department of Health Epidemiology officeoffice

Established case definition early Established case definition early and narrowed laterand narrowed later

Finley SchoolsFinley Schools

Finley School DistrictFinley School District

– K-5K-5

– Middle SchoolMiddle School

– High SchoolHigh School Rural areaRural area

– Water supplyWater supply

– Irrigation waterIrrigation water

– Septic systemSeptic system

– BusesBuses

Epidemiologic InvestigationEpidemiologic Investigation

Classroom Classroom schedulesschedules

Bus schedulesBus schedules Lunch schedulesLunch schedules Recess schedulesRecess schedules Case-Control StudyCase-Control Study Cohort Study of Cohort Study of

StaffStaff Cohort Study of Cohort Study of

Meals PurchasedMeals Purchased

Environmental InvestigationEnvironmental Investigation

Playground Playground EquipmentEquipment

– PuddlesPuddles

– TopographyTopography

– AnimalsAnimals

Water systemWater system

Sewage systemSewage system

Hand RailsHand Rails

Dirty Can OpenerDirty Can Opener

Army WormsArmy Worms

Stray dogs Stray dogs

Environmental InvestigationEnvironmental Investigation

Environmental InvestigationEnvironmental Investigation

Kitchen inspectionKitchen inspection

Food prep reviewFood prep review

Food sample Food sample collectioncollection

Product trace backProduct trace back

Central storeCentral store

USDAUSDA

ResultsResults

9801447

9801446

9801443

9801462

9801480

9801482

9801513

9801455

9801481

8 confirmed cases8 confirmed casesof of E. coliE. coli O157:H7 O157:H7

3 probable cases3 probable cases

1 secondary case1 secondary case

8 PFGE matches8 PFGE matches

ResultsResults

Ill students in grades K-5Ill students in grades K-5

All but one ill child All but one ill child at a taco mealat a taco meal

No other common No other common exposures detectedexposures detected

No ill staff membersNo ill staff members

ResultsResults

Food handling Food handling errors were noted errors were noted in the kitchenin the kitchen

There was There was evidence of evidence of undercooked taco undercooked taco meatmeat

No pathogen No pathogen found in food found in food samplessamples

ConclusionsConclusions

Point source outbreak Point source outbreak related to exposure at related to exposure at Finley Elementary Finley Elementary SchoolSchool

A source of infection A source of infection could not be could not be determineddetermined

The most probable The most probable cause was consuming cause was consuming the ground beef tacothe ground beef taco

The LawsuitThe Lawsuit

Eleven minor plaintiffs: Eleven minor plaintiffs: 10 primary cases, 1 secondary case10 primary cases, 1 secondary case

Parents also party to the lawsuit, Parents also party to the lawsuit, individually individually and as guardians ad litem and as guardians ad litem

Two defendants: Finley School District Two defendants: Finley School District and Northern States Beefand Northern States Beef

The Basic AllegationsThe Basic Allegations

Students at Finley Students at Finley Elementary School were Elementary School were infected with infected with E. coliE. coli O157:H7 O157:H7 as a result of eating as a result of eating contaminated taco meatcontaminated taco meat

The The E. coliE. coli O157:H7 was O157:H7 was present in the taco meat present in the taco meat because it was undercookedbecause it was undercooked

The resulting outbreak The resulting outbreak seriously injured the seriously injured the plaintiffs, almost killing one plaintiffs, almost killing one of themof them

At Trial: The Plaintiff’s CaseAt Trial: The Plaintiff’s Case

The State and the BFHD conducted The State and the BFHD conducted a fair and thorough investigationa fair and thorough investigation

Final report issued by the WDOH Final report issued by the WDOH concluded the taco meat was the concluded the taco meat was the most likely cause of the outbreakmost likely cause of the outbreak

The conclusion reached as a result The conclusion reached as a result of the investigation was theof the investigation was thecorrect onecorrect one

More of The Plaintiff’s CaseMore of The Plaintiff’s Case

There were serious deficiencies in the There were serious deficiencies in the District’s foodservice operationDistrict’s foodservice operation

There were reasons to doubt the District’s There were reasons to doubt the District’s explanation of how the taco meat was explanation of how the taco meat was prepared prepared

The law only requires a 51% probability to The law only requires a 51% probability to prove the outbreak’s cause-in-factprove the outbreak’s cause-in-fact

The School District’s DefenseThe School District’s Defense

The taco meat was The taco meat was safe to eat safe to eat because:because:

– We love childrenWe love children

– We are always We are always careful to cook careful to cook it a lotit a lot

The Taco Meal Recipe CardThe Taco Meal Recipe Card

It’s not our fault, someone sold us It’s not our fault, someone sold us contaminated beefcontaminated beef

More of the School District’s DefenseMore of the School District’s Defense

• We’ve never poisoned We’ve never poisoned anyone beforeanyone before

• The health The health departments botched departments botched the investigation and the investigation and jumped to a hasty jumped to a hasty conclusionconclusion

• Something else caused Something else caused the outbreakthe outbreak

What Will a Jury Think?What Will a Jury Think?

A JuryA Jury == 12 Consumers12 Consumers

What Did This Jury Think?What Did This Jury Think?

The investigation was The investigation was fair fair and thoroughand thorough

More probably than not, More probably than not, undercooked taco meat undercooked taco meat caused the children to caused the children to become illbecome ill

The School District was The School District was ultimately responsible ultimately responsible for ensuring the safety of for ensuring the safety of the food it sold to its the food it sold to its studentsstudents

In The EndIn The End

After a six week trial, After a six week trial, plaintiffs were awarded plaintiffs were awarded $4,750,000$4,750,000

The District appealed the The District appealed the verdict on grounds that verdict on grounds that product liability law did not product liability law did not applyapply

September 2003 the WA September 2003 the WA State Supreme Court State Supreme Court dismissed the District’s dismissed the District’s casecase

Final award - $6,068,612.85Final award - $6,068,612.85

Questions?Questions?