Northern California American Society for Microbiology

Separating the Wheat from the Chaff:

How we do what we do and use science to do it!

Marler Clark, LLP PS

Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every. Settlements and Verdicts – total nearly $600,000,000.

Only a fraction of the victims who contact our office end up being represented.

Who do we turn away?

There is a Worm in my Freezer!

“I recently found a whole, 2-cm long worm packaged inside a Lean Cuisine frozen dinner.  I have the worm in my freezer. I'm interested in discussing my rights in this matter.  Could you please contact me, or refer me to a firm that may be able to give me assistance? ”

“Christening” the Carpet

“I opened a box of Tyson Buffalo wings and saw an unusually shaped piece of chicken and I picked it up.  When I saw that the ‘piece’ had a beak, I got sick to my stomach. My lunch and diet coke came up and I managed to christen my carpet, bedding and clothing. I want them to at least pay for cleaning my carpet etc.” 

Lending a Helping Hand

“My husband recently opened a bottle of salsa and smelled an unusual odor but chose to eat it regardless, thinking that it was just his nose.  He found what appeared to be a rather large piece of animal or human flesh. He became very nauseated and I feel the manufacturer should be held responsible.”

The Chaff

Just like health departments we needto 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 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.

Matching Symptoms with Specific Characteristics of Pathogens

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

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

Communicable Disease Investigation

Reportable Disease Case Report Form

Enteric/viral laboratory testing results– Human specimens– Environmental

specimens

Molecular Testing Results

PFGE and PulseNet

CaliciNet

Traceback Records

POS APOS A

POS BPOS B

POS CPOS C

POS DPOS D

FIRM AFIRM A

FIRM BFIRM B

FIRM CFIRM C

FIRM DFIRM D

FIRM EFIRM E

FIRM GFIRM G

FIRM HFIRM H

FIRM FFIRM F

FIRM IFIRM I

FIRM JFIRM J

FIRM KFIRM K

FIRM LFIRM L

FIRM MFIRM M

FIRM NFIRM N

FIRM OFIRM O

GROWERA

GROWERA

GROWERB

GROWERB

GROWERD

GROWERD

GROWERC

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

Prior Health Department Inspections

Improper Cooking Procedures

Improper Refrigeration

Improper Storage and Cooking Procedures

Improper Cooking Procedures

Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splash onto a nearby bun.

Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splash onto a nearby bun.

A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain. 

Her illness was not culture-confirmed.

No food on site tested positive for E. coli O157:H7. 

Review of health inspections revealed flawsin cooking methods.

Improper Refrigeration

A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak.

No contaminated leftover food was found. 

A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission.

Health Department report noted “raw meat stored above the Jell-O in the refrigerator.” 

The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator.

Improper Storage and Cooking

Banquet-goers in southeastern Washington tested positive for Salmonella.

Leftover food items had been discarded or tested negative. 

Restaurant had “pooled” dozens, if not hundreds, of raw eggs in a single bucket for storage overnight, then usedthem as a “wash” on a specialty dessert that was not cooked thoroughly. 

Civil Litigation – A Tort – How it Really Works Strict liability

It is their fault – Period!

Negligence

Did they act reasonably?

Punitive damages

Did they act with conscious disregard of a known safety risk?

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

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

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

Who is a Manufacturer?

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….”

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

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

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

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

Creates incentive not to let it happen again

Bottom Line

“Resistance is Futile

The reason for excluding non-manufacturing retailers from strict liability is to distinguish between those who have actual control over the product and those who act as mere conduits in the chain of distribution.

Negligence Is The Legal Standard Applied To Non-Manufacturers

See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn. App. 397, 404 (1993).

But, Litigation Can Work – A History Lesson

Jack in the Box - 1993Odwalla - 1996

Punitive (or Exemplary) Damages:

Punish the defendant for its conduct;

Deter others from similar conduct.

Historically, such damages were awarded to Historically, such damages were awarded to discourage intentional wrongdoing, wanton and discourage intentional wrongdoing, wanton and reckless misconduct, and outrageous behavior.reckless misconduct, and outrageous behavior.

A Real Life Example

Benton Franklin Health DistrictOCTOBER 1998

Call from Kennewick General Hospital infection control nurse

Call from elementary school principal

Preliminary Interviews

Kennewick General Hospital

Kennewick Family Medicine

Interview tool– Knowledge of

community– Asked questions

from answers

Case Finding

Established communication with area laboratories, hospitals and physicians

Notified the Washington State Department of Health Epidemiology office

Established case definition early and narrowed later

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

Hand Rails

Dirty Can Opener

Army Worms

Stray dogs

Environmental Investigation

Environmental Investigation

Kitchen inspection

Food prep review

Food sample collection

Product trace back

Central store

USDA

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 at 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

Conclusions

Point source outbreak related to exposure at Finley Elementary School

A source of infection could not be determined

The most probable cause was consuming the ground beef taco

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

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

The Taco Meal Recipe Card

It’s not our fault, someone sold us contaminated beef

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

William D. MarlerMarler Clark, The Food Safety Law Firm1301 Second AvenueSuite 2800Seattle, Washington 98101

Questions?