How Big is the Food Poisoning How Big is the Food Poisoning Problem?Problem?

CDC reports that CDC reports that yearly 76,000,000 yearly 76,000,000 are sickened, are sickened, 325,000 are 325,000 are hospitalized and hospitalized and 5,000 die as a result 5,000 die as a result of eating food.*of eating food.*

Resent estimates Resent estimates $152,000,000 in cost $152,000,000 in cost to victimsto victims

Not counting Not counting Business LossBusiness Loss

Civil Litigation – How it Really Civil Litigation – How it Really WorksWorks

Strict liabilityStrict liability

• It is their fault – It is their fault – Period!Period!

NegligenceNegligence

• Did they act reasonably?Did they act reasonably?

Punitive damagesPunitive damages

• Did they act with Did they act with conscious disregardconscious disregardof a known safety risk?of a known safety risk?

Strict Liability for Food – Strict Liability for Food – a Bit(e) of Historya Bit(e) of History

“… “… a manufacturer of a food product under a manufacturer of a food product under modern conditions modern conditions impliedlyimpliedly warrants his warrants his goods… and that warranty is available to all who goods… and that warranty is available to all who may be damaged by reason of its use in the may be damaged by reason of its use in the legitimate channels of trade…”legitimate channels of trade…”

Mazetti v. Armour & CoMazetti v. Armour & Co., 75 Wash. 622 ., 75 Wash. 622 (1913)(1913)

Who is a Manufacturer?Who is a Manufacturer?

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

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

The Legal Standard: Strict The Legal Standard: Strict LiabilityLiability

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

The focus is on the product; not the conductThe focus is on the product; not the conduct

They are liable if:They are liable if:

• The product was The product was unsafeunsafe

• The product The product causedcaused the injury the injury

Why Strict Liability?Why Strict Liability?

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

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

Things that the Fish Industry Things that the Fish Industry Worries AboutWorries About

Mercury in TunaMercury in Tuna

Antibiotics in Antibiotics in Fish FarmingFish Farming

Sustainability Sustainability of Fish Stocksof Fish Stocks

Environmental Environmental IssuesIssues• Fish FarmingFish Farming

• Non-target fish killNon-target fish kill

Norovirus and Norovirus and Hepatitis A in Hepatitis A in ShellfishShellfish

My Experience with the Fishing My Experience with the Fishing IndustryIndustry

Jack in the BoxJack in the Box

1992 and 19931992 and 1993 Nearly 600 peopleNearly 600 people

sickened in six States – sickened in six States – most children - 50 HUS – most children - 50 HUS – 4 deaths4 deaths

Two Class Actions – Two Class Actions – Hundreds of Individual Hundreds of Individual SuitsSuits

Shareholders Litigation, Shareholders Litigation, Congressional InvestigationCongressional Investigation

Settlements in Excess Settlements in Excess of $100,000,000of $100,000,000

Cause - knowingly Cause - knowingly undercookingundercooking

OdwallaOdwalla

19981998 Over 70 people sickened 5 HUS, 1 deathOver 70 people sickened 5 HUS, 1 death Multiple lawsuitsMultiple lawsuits Criminal Investigation and PleaCriminal Investigation and Plea Knowingly sold contaminated Apple JuiceKnowingly sold contaminated Apple Juice Settlements over $20,000,000Settlements over $20,000,000 Stock Price fell and they were purchasedStock Price fell and they were purchased

OdwallaOdwalla

Peanut Butter and Salmonella - Peanut Butter and Salmonella - AgainAgain Over 700 persons infected with the outbreak Over 700 persons infected with the outbreak

strains of Salmonella Typhimurium strains of Salmonella Typhimurium have been reported have been reported from 46 statesfrom 46 states

Over 150 people Over 150 people hospitalizedhospitalized

Nine DeathsNine Deaths Over 4,000 products Over 4,000 products

recalledrecalled BankruptcyBankruptcy Criminal Prosecution?Criminal Prosecution?

What is the Problem?What is the Problem?

IndustrializatioIndustrialization of our food n of our food supply?supply?

Technological Technological Advances in Advances in Surveillance?Surveillance?

Bugs are Bugs are bigger, bigger, stronger, stronger, faster?faster?

Free Market?Free Market?

Regulation?Regulation?

Litigation?Litigation?

Criminalize?Criminalize?

How to Solve the Problem?How to Solve the Problem?

My Top ElevenMy Top Eleven

1.1. Improve surveillanceImprove surveillance

2.2. Government Agencies Government Agencies work togetherwork together

3.3. Train, certify, Train, certify, vaccinate vaccinate food handlersfood handlers

4.4. Stiffen license Stiffen license requirementsrequirements

5.5. Increase food Increase food inspectionsinspections

My Top ElevenMy Top Eleven

6.6. Reform agencies at Reform agencies at every level to be more every level to be more proactiveproactive

7.7. Legal consequencesLegal consequences

8.8. Technology to make Technology to make food more traceablefood more traceable

9.9. Promote researchPromote research

10.10. Provide tax breaksProvide tax breaks

11.11. Improve consumer Improve consumer understandingunderstanding

QuestionsQuestions

For More Information…For More Information…

Marler Clark, The Food Safety Law FirmMarler Clark, The Food Safety Law Firm

1301 2nd Avenue1301 2nd Avenue

Suite 2800Suite 2800

Seattle, WA 98101Seattle, WA 98101

1 866-770-20321 866-770-2032

Bill Marler’s BlogBill Marler’s Blog