law and science with bill marler at 2010 pulsenet update meeting
DESCRIPTION
Marler Clark's Bill Marler speaks about the interplay between food safety science and law at the 2010 PulseNet Update Meeting in Chicago.TRANSCRIPT
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