2011 ncasm conference: separating the wheat from the chaff with bill marler
DESCRIPTION
Marler Clark Managing Partner Bill Marler's presentation to the Northern California American Society for Microbiology about the process of food safety plaintiff litigationTRANSCRIPT
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Northern California American Society for Microbiology
Separating the Wheat from the Chaff:
How we do what we do and use science to do it!
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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?
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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? ”
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“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.”
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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.”
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The Chaff
Just like health departments we needto quickly and reliably recognize unsupportable claims
How Do We Do It?
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Basic Tools of the Trade
Symptoms Incubation Duration Food History Medical Attention Suspected source Others Ill
Health Department Involvement
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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.
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Matching Symptoms with Specific Characteristics of Pathogens
E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter Vibrio
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Epidemiologic Assessment
Time
Place
Person association
Part of a recognized outbreak?
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Medical Attention
Health care provider
Emergency Room
Hospitalization
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Health Department Involvement
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Communicable Disease Investigation
Reportable Disease Case Report Form
Enteric/viral laboratory testing results– Human specimens– Environmental
specimens
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Molecular Testing Results
PFGE and PulseNet
CaliciNet
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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
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Prior Health Department Inspections
Improper Cooking Procedures
Improper Refrigeration
Improper Storage and Cooking Procedures
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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.
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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.
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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.
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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?
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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)
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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)
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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
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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
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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
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Bottom Line
“Resistance is Futile
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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).
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But, Litigation Can Work – A History Lesson
Jack in the Box - 1993Odwalla - 1996
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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.
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A Real Life Example
Benton Franklin Health DistrictOCTOBER 1998
Call from Kennewick General Hospital infection control nurse
Call from elementary school principal
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Preliminary Interviews
Kennewick General Hospital
Kennewick Family Medicine
Interview tool– Knowledge of
community– Asked questions
from answers
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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
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Finley Schools
Finley School District
– K-5
– Middle School
– High School Rural area
– Water supply
– Irrigation water
– Septic system
– Buses
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Epidemiologic Investigation
Classroom schedules Bus schedules Lunch schedules Recess schedules Case-Control Study Cohort Study of Staff Cohort Study of Meals
Purchased
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Environmental Investigation
Playground Equipment
– Puddles
– Topography
– Animals
Water system
Sewage system
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Hand Rails
Dirty Can Opener
Army Worms
Stray dogs
Environmental Investigation
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Environmental Investigation
Kitchen inspection
Food prep review
Food sample collection
Product trace back
Central store
USDA
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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
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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
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Results
Food handling errors were noted in the kitchen
There was evidence of undercooked taco meat
No pathogen found in food samples
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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
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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
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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
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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
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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
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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
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The Taco Meal Recipe Card
It’s not our fault, someone sold us contaminated beef
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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
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What Will a Jury Think?
A Jury = 12 Consumers
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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
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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
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William D. MarlerMarler Clark, The Food Safety Law Firm1301 Second AvenueSuite 2800Seattle, Washington 98101
Questions?