Chicago Food Claims and Litigation Conference 2006

William D. Marler, Esq.bmarler@marlerclark.com

Evaluation Tools For Small CasesEvaluation Tools For Small Cases Health Department Investigation of the Health Department Investigation of the

Outbreak/IncidentOutbreak/Incident Causation - LiabilityCausation - Liability Medical RecordsMedical Records Lab ReportsLab Reports DiscoveryDiscovery The ClientThe Client The Defendant, the Brand and the PublicityThe Defendant, the Brand and the Publicity VenueVenue

See - “See - “Separating the Chaff from the Wheat : How to determine Separating the Chaff from the Wheat : How to determine the strength of a foodborne illness claim.” the strength of a foodborne illness claim.” www.billmarler.comwww.billmarler.com

That unfortunate fact doesn’t serve [ ] the law profession, but I assure you people like myself in hospitalitytraining and certification are doing [our] best to put people like you out of business, first and foremost for the customers[‘] safety, secondly because for once it would be to take food out a lawyer’s mouth . . . Sort of ironic, you shut down restaurants, I shut down lawyers . . . Lol

Have a bad, bad day you Parasite.

FDA food code instructor

Lending a Helping HandLending a Helping Hand

““My husband recently opened a My husband recently opened a bottle of salsa and smelled an bottle of salsa and smelled an unusual odor but chose to eat it unusual odor but chose to eat it regardless, thinking that it was regardless, thinking that it was just his nose. . . .just his nose. . . .

Lending a Helping HandLending a Helping Hand

After taking two bites and tasting After taking two bites and tasting rather badly, he found what rather badly, he found what appeared to be a rather large appeared to be a rather large piece (approx. the size of the piece (approx. the size of the back of an adult's fist) of human back of an adult's fist) of human or animal flesh.  Even though he or animal flesh.  Even though he didn't seek medical attention, he didn't seek medical attention, he did become very nauseated. I did become very nauseated. I do feel that the manufacturer do feel that the manufacturer should be held responsible for should be held responsible for this mishap.”this mishap.”

Enter the FBIEnter the FBI

Strict LiabilityStrict Liability

““Resistance is Futile”Resistance is Futile”

PathogensPathogens

E. coliE. coli O157:H7 O157:H7 Hepatitis AHepatitis A SalmonellaSalmonella ShigellaShigella

According to the CDC, pathogens According to the CDC, pathogens are are “usually transmitted to humans “usually transmitted to humans by eating foods contaminated with by eating foods contaminated with animal or human feces.”animal or human feces.”

JennyJenny

7 years old, ate at restaurant as part of birthday party 7 years old, ate at restaurant as part of birthday party for friend.for friend.

Vomiting, abdominal cramps, stomach pain, diarrhea, Vomiting, abdominal cramps, stomach pain, diarrhea, fever. fever.

Admitted to Hospital for 2 days, blood culture positive Admitted to Hospital for 2 days, blood culture positive for Salmonella, treated with IV antibiotics.for Salmonella, treated with IV antibiotics.

Out of school for 10 days.Out of school for 10 days. Father, widower, missed work to care for her - $800Father, widower, missed work to care for her - $800 Medical bills - $3,400Medical bills - $3,400

$29,500$29,500VALUE?VALUE?

JacobJacob

4 years old, family ate at restaurant after his first T-4 years old, family ate at restaurant after his first T-Ball game, father away in National Guard.Ball game, father away in National Guard.

High fever, stomach cramps, abdominal pain, bloody High fever, stomach cramps, abdominal pain, bloody diarrhea. Fever topped 104 degrees.diarrhea. Fever topped 104 degrees.

Hospitalized with positive blood culture for Salmonella, Hospitalized with positive blood culture for Salmonella, treated with IV antibiotics.treated with IV antibiotics.

Hospitalized for three days.Hospitalized for three days. Mom missed 1 week of work - $660.Mom missed 1 week of work - $660. Medical bills - 3,309.Medical bills - 3,309.

$30,867$30,867VALUE?VALUE?

Georgiann

Married for 24 years, lives with husband and two children.

Speech pathologist, works with children with autism. In the midst of chemotherapy for breast cancer.

– Had started chemotherapy in September. – Had been on medical leave from work for a number

of months to confront the cancer. Became ill just before Thanksgiving with HAV. Missed

a large family gathering to celebrate Thanksgiving and her fight against cancer.

Acutely ill for four weeks. Medical Bills $130

$52,000$52,000VALUE?VALUE?

Kim

34-year-old single mother of two and grandmother of 34-year-old single mother of two and grandmother of one. one.

Severe flu-like symptoms, headaches, nausea, and a Severe flu-like symptoms, headaches, nausea, and a temperature of 103 degrees. Jaundice. Acute HAV temperature of 103 degrees. Jaundice. Acute HAV infection. infection.

Professional entertainer who worked primarily for tips. Professional entertainer who worked primarily for tips. – Works four nights a week and pays $100 nightly in Works four nights a week and pays $100 nightly in

rent for her workspace. rent for her workspace. – Estimates that she nets $500, on average, per shift, Estimates that she nets $500, on average, per shift,

i.e., $600 per shift less the $100 in rent. i.e., $600 per shift less the $100 in rent. – Missed 41 days of work. Missed 41 days of work.

Medical bills $459.96Medical bills $459.96 Wage Loss $20,500.00Wage Loss $20,500.00

$54,000$54,000VALUE?VALUE?

KyleKyle

14 year-old boy, lives with younger brother and parents. Suffers from cerebral palsy, a disorder that affects his body-movement and muscle-coordination.

In 2002, underwent a surgical procedure intended to repair improper bilateral growth of legs and hips. In a cast that extended from his upper waist all the way to his feet.

Family went camping after consuming hamburger. Ran out of diapers and were forced to wrap him in

towels and a large garbage bag to keep Kyle’s diarrhea from getting all over the car.

Three days hospitalized. E. coli positive. Ill for an additional week.

Medical bills $4,480

$99,000$99,000VALUE?VALUE?

MaryMary

60-years-old, recently widowed. Seen in ER after days of illness. “Crampy, unrelieved

by aspirin, and associated with frequent bowel movements.” Pain was “8/10” and had kept her up all night.

Dehydration and pain, normal saline and morphine transfused intravenously. Doctors ordered blood and stool cultures, as well as a CT scan of Mary’s abdomen.

Colonoscopy, E. coli positive. Hospitalized for five days, 1 – 1 ½ weeks of symptoms

after hospitalization. Medical bills $13,635

$88,000$88,000VALUE?VALUE?

Lou

Insurance executive, married with three children.Insurance executive, married with three children. Attended golf tournament at a country club on June 10 Attended golf tournament at a country club on June 10

where he ate a sandwich at the “19where he ate a sandwich at the “19thth Hole.” Hole.” On June 12, abdominal cramps and diarrhea. On June 12, abdominal cramps and diarrhea.

– Tried to play in his regular Thursday golf league. While on the Tried to play in his regular Thursday golf league. While on the fairway, experienced a sudden and severe bout of diarrhea, and fairway, experienced a sudden and severe bout of diarrhea, and was unable to reach the bathroom in time. This was both painful was unable to reach the bathroom in time. This was both painful and embarrassing. Nicknamed “Shitty.”and embarrassing. Nicknamed “Shitty.”

On June 14, remained at home with nearly constant and On June 14, remained at home with nearly constant and bloody diarrhea, fever, and vomiting. Shigella positive.bloody diarrhea, fever, and vomiting. Shigella positive.– Unable to play in the traditional father-son golf tournament.Unable to play in the traditional father-son golf tournament.– Acute symptoms slowly faded, but took several weeks before his Acute symptoms slowly faded, but took several weeks before his

stomach cramping, pain, and fatigue significantly improved. stomach cramping, pain, and fatigue significantly improved. Medical Bills $41.72 Wage Loss $340.16

$13,000$13,000VALUE?VALUE?

Bottom LineBottom Line Evaluation of cases is hardEvaluation of cases is hard It is an art, not a scienceIt is an art, not a science In a Strict Liability case, with Causation In a Strict Liability case, with Causation

it is all about damages:it is all about damages:– Focus is on the facts of the outbreak and Focus is on the facts of the outbreak and

the injuriesthe injuries– Who has the best story to tell?Who has the best story to tell?– Who is most likeable?Who is most likeable?– Who is most trustworthy?Who is most trustworthy?

What Will a Jury Think?What Will a Jury Think?

A Jury = 12 Consumers