Contaminated Food – How to Evaluate Risk

Liability Claims Subcommittee MeetingWashington DC September 17, 2009

Real Events Happening Daily to Real People 76 million cases of foodborne illness

annually 325,000 hospitalizations 5,000 deaths Medical costs, productivity losses, costs of

premature death costs $6.9 billion dollars a year

May be as high as $137 billion dollars a year

And It is Happening Today The Colorado Department of

Public Health and Environment (CDPHE) issued a press release announcing an outbreak of E. coli O157:H7.

The CDC eventually revealed that 80 people in 33 states have been sickened, and that epidemiological evidence was strong that the vehicle was Nestle Toll House uncooked cookie dough

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

Just like Insurers we need to quickly and reliably recognize unsupportable claims

How Do We Do It?

Basic Tools of the Trade

Symptoms Incubation Duration Food History Medical Attention Suspected source Others Ill

Health Department Involvement

Matching Symptoms with Specific Characteristics of Pathogens

E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter Vibrio

Matching Incubation PeriodsIncubation Periods Of Common Pathogens

PATHOGEN INCUBATION PERIODStaphylococcus 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

FOIA/Public Records Request

Communicable Disease Investigation

Reportable Disease Case Report Form

Enteric/viral laboratory testing results– Human specimens– Environmental

specimens

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

GROWERB

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

The Legal Arsenal Interrogatories Requests for

production Requests for

inspection Request for

admission Third-party

subpoenas Depositions Motions to compel

Litigation At Work – A Bit(e) of History

Jack in the Box - 1993Odwalla - 1996

The Plaintiff

A Real Life Example

Benton Franklin Health DistrictOCTOBER 1998 Call from Kennewick

General Hospital infection control nurse

Finley Schools

Finley School District– K-5– Middle School– High School

Rural area– Water supply– Irrigation water– Septic system– Buses

Epidemiologic Investigation

Classroom schedules Bus schedules Lunch schedules Recess schedules Case-Control Study Cohort Study of Staff Cohort Study of Meals

Purchased

Environmental Investigation

Playground Equipment– Puddles– Topography– Animals

Water system Sewage system

Results

9801447

9801446

9801443

9801462

9801480

9801482

9801513

9801455

9801481

8 confirmed casesof E. coli O157:H7

3 probable cases

1 secondary case

8 PFGE matches

Results

Ill students in grades K-5

All but one ill child ate a taco meal

No other common exposures detected

No ill staff members

Results

Food handling errors were noted in the kitchen

There was evidence of undercooked taco meat

No pathogen found in food samples

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

Mediation offer $500,000 – “last and final”

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

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

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

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

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

What Will a Jury Think?

A Jury = 12 Consumers

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

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

QUESTIONS?