Recent and Emerging Trends in Foodborne Illness Litigation – The Risk of Criminal Sanctions are Real

William D. Marler, Esq.Christopher T. Lee, Esq.

Food Production is a Risky Business

• Stockholder Pressures for Increasing Profits over Long-term Safety

• Lack of Clear RewardFor Marketing and Practicing Food Safety

• Brand Awareness Risks

• Civil and Criminal Liability

It is a Global Food Economy

How Are Things are Different Today?

It Started with just a Little Salmonella

• 714 persons infected with the outbreak strain of Salmonella Typhimurium were reported from 46 states. Among the persons with confirmed, reported dates available, illnesses began between September 1, 2008 and March 31, 2009.

• Patients ranged in age from <1 to 98 years. The median age of patients was 16 years which means that half of ill persons were younger than 16 years. 21% were age <5 years, 17% were >59 years. 48% of patients were female. Among persons with available information, 24% reported being hospitalized.

• Nine deaths: Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2).

Then there were Congressional Hearings

• “Turn them loose,” Parnell had told his plant manager in an internal e-mail disclosed at the House hearing. The e-mail referred to products that once were deemed contaminated but were cleared in a second test last year.

• Parnell ordered products identified with salmonella to be shipped and quoting his complaints that tests discovering the contaminated food were “costing us huge $$$$$.”

• Parnell insisted that the outbreak did not start at his plant, calling that a misunderstanding by the media and public health officials. “No salmonella has been found anywhere else in our products, or in our plants, or in any unopened containers of our product.”

• Parnell complained to a worker after they notified him that salmonella had been found in more products. “I go thru this about once a week,” he wrote in a June 2008 e-mail. “I will hold my breath ………. again.”

Now – Guilty After Two Month Trial

• Stewart Parnell, the former owner of Peanut Corp. of America

• Michael Parnell, who is Stewart Parnell’s brother and a former supervisor

• Samuel Lightsey, a onetime plant operator

• Mary Wilkerson, a former quality-assurance manager

• Daniel Kilgore, plant manager

• Allegations Included:• Mail Fraud• Wire Fraud• Introduction of Adulterated

and Misbranded Food into Interstate Commerce with Intent to Defraud or Mislead

• Conspiracy

And, It Does Not Always Require Intent

• A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct.

• Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation.

• Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $250,000 or both.

The DeCosters, Salmonella & Eggs

• Salmonella Enteritidis outbreak linked to shell eggs

• Represent Quality Egg d/b/a Wright County Egg

• Other Defendant

– Hillandale Farms of Iowa

• Attorney-Client Privilege

REVIEW OF OUTBREAK AND CDC DATA

• 29 restaurant clusters from 11 states

• 15 of 29 clusters with Wright County Egg as likely source

• 1 of 29 clusters with Hillandale Farms as likely source

• 13 clusters are not linked to either farm

• Over 500 million eggs recalled

– Wright County Egg – 380 million eggs

– Hillandale – 170 million eggs

REVIEW OF CDC DATA

• Over 1,800 reported illnesses that are “likely to be associated with this outbreak”

• Number is based upon an increase in same illnesses for period of May 1 to October 15 – total 3,182

– Normal number of illnesses is 1,369 for same time period

• Epidemiological Investigation

– Traceback

– PFGE Testing - Pattern JEGX01.0004

– Advanced molecular methodologies to distinguish between outbreak and sporadic cases

• MLVA

• MLST

The DeCosters, Salmonella & Eggs

• Austin “Jack” DeCoster and his son, Peter DeCoster acknowledge that, in August 2010, while they were in positions of authority at Quality Egg, they introduced shell eggs into interstate commerce that were adulterated because they contained a poisonous or deleterious substance in the form of Salmonella Enteriditis that may have rendered them injurious to health.

• In exchange for their guilty pleas, the DeCosters will receive consideration at sentencing, limiting their personal fines to $100,000 and reducing any jail time.

• Jack DeCoster will also plead guilty to three counts, including felony bribery of a USDA inspector, on behalf of Quality Egg, LLC, which owned the two egg production facilities responsible for the largest shell egg recall in U.S. history.

• In the plea agreement, Quality Egg agrees to pay a fine of about $6.8 million for the counts of bribery of a public official (a USDA egg inspector) and introducing misbranded food into interstate commerce. The company will pay another $100,000 fine for introducing adulterated food into interstate commerce.

Ongoing Criminal Investigations

• Federal crimina lmisdemeanor charges related to contaminated peanut butter produced in 2007 in Sylvester, GA, may yet be brought against the owner, ConAgra Foods Inc.

• Seven years ago, Peter Pan and Great Value peanut butters produced by ConAgra at the Sylvester plant were recalled because they were associated with a multi-state Salmonella outbreak. The contaminated peanut butter was blamed for over 700 foodborne illnesses in 39 states.

• The immediate investigation focused on a faulty roof on the Sylvester plant that may have allowed moisture to invade the production process.

• A criminal investigation was launched in 2011 in a joint venture between the U.S. Attorney’s Office for Georgia and DOJ’s Consumer Protection Branch.

What about Your Client?

• On January 10, 2015, the CDC reports a total of 32 people infected with the outbreak strains of Listeria monocytogenes had been reported from 11 states: Arizona (4), California (2), Minnesota (4), Missouri (5), Nevada (1), New Mexico (6), North Carolina (1), Texas (4), Utah (1), Washington (1), and Wisconsin (3).

• Thirty-one ill people have been hospitalized, and seven deaths have been reported. Listeriosis contributed to at least three of these deaths.

• Ten illnesses were pregnancy-related (occurred in a pregnant woman or her newborn infant), with one illness resulting in a fetal loss.

• Three invasive illnesses (meningitis) were among otherwise healthy children aged 5–15 years.

• PFGE match between ill people, apples and Bidart Bros. Plant

Planning AGAINST Litigation –Establish Relationships

They are your best friends!

Lessons Learned From An Outbreak

You can insure the brand’s and the company’s reputation

1. Arm yourself with good, current information

2. Since you have a choice between doing nothing or being proactive, be proactive

3. Make food safety part of everything you do

4. Treat your customers with respect