law and science with bill marler at 2010 pulsenet update meeting

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? Why?

The Chaff

How Do We Do It?

Just like health departments we need to quickly and reliably recognize unsupportable claims

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Basic Tools of the Trade

• Symptoms

• Incubation

• Duration

• Food History

• Medical Attention

• Suspected source

• Others IllHealth Department Involvement

Matching Symptoms with Specific Characteristics of Pathogens

• E. coli O157:H7

• Hepatitis A

• Salmonella

• Shigella

• Campylobacter

• Vibrio

CampylobacterE. coli

O157:H7

Hepatitis ASalmonella

Shigella

Vibrio

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 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 Assessment

• Time

• Place

• Person association

• Part of a recognized outbreak?

Medical Attention

• Health care provider

• Emergency Room

• Hospitalization

Health Department Involvement

FOIA/Public Records Request

Prior Health Department Inspections

• Improper storage and cooking procedures

• Improper sanitation

• Improper cooking procedures

• Improper refrigeration

Communicable Disease Investigation

• Reportable Disease Case Report Form

• Enteric/viral laboratory testing results

– Human specimens

– Environmentalspecimens

Molecular Testing Results

• PFGE/MLVA

• PulseNet

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

GROWERA

GROWER

B

GROWERD

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

Who is a Manufacturer?

RCW 7.72.010(2); see also Washburn v. Beatt Equipment

Co., 120 Wn.2d 246 (1992)

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….”

The Legal Standard: Strict Liability

STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT

• The focus is on the product; not the conduct• They are liable if:

– The product was unsafe

– The product caused the injury

Causation - Science

“Causation is an essential concept in epidemiology, yet there is no single, clearly articulated definition ….” J Epidemiol Community Health

2001Dec;55(12):905-12;

Parascandola M, Weed DL.

Confidence Interval (CI) – Range within which 95% of times the true value of the estimated association lies (95% CI)

Causation – The Law

“A proximate cause of an injury is a cause which, in natural and continuous sequence, produces the injury, and without which the injury would not have [likely] occurred. The concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition.” Prosser, Torts, pp. 311-313

However, “It really is what is more likely than not. It is 50% and an extra grain of sand.” Marler on the law

But, Causation Still Requires Admissible Evidence

• Whether a theory or technique can be (and has been) tested

• Whether it has been published and subjected to peer review

• Whether it has a high potential rate of error

• Whether it enjoys general acceptance in scientific community

• Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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

Why Strict Liability?

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

Creates incentive not to let it happen again

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

What Will a Jury Think?

A Jury = 12 Consumers

Questions?

To Learn More…

Bill MarlerMarler Clark, The Food Safety Law Firm

1301 2nd AvenueSuite 2800Seattle, WA 98101

1 866-770-2032