contaminated food – how to evaluate risk liability claims subcommittee meeting washington dc...
TRANSCRIPT
Contaminated Food – How to Evaluate Risk
Liability Claims Subcommittee MeetingWashington DC September 17, 2009
Real Events Happening Daily to Real People
76 million cases of foodborne illness annually
325,000 hospitalizations
5,000 deaths
Medical costs, productivity losses, costs of premature death costs $6.9 billion dollars a year
May be as high as $137 billion dollars a year
And It is Happening Today
The Colorado Department of Public Health and Environment (CDPHE) issued a press release announcing an outbreak of E. coli O157:H7.
The CDC eventually revealed that 80 people in 33 states have been sickened, and that epidemiological evidence was strong that the vehicle was Nestle Toll House uncooked cookie dough
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
Just like Insurers we need to 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 Symptoms with Specific Characteristics of Pathogens
E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter 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
Communicable Disease Investigation
Reportable Disease Case Report Form
Enteric/viral laboratory testing results– Human specimens– Environmental
specimens
Molecular Testing Results
PFGE/MLVA
PulseNet
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
The Legal Arsenal
Interrogatories Requests for
production Requests for
inspection Request for
admission Third-party
subpoenas Depositions Motions to compel
Litigation At Work – A Bit(e) of History
Jack in the Box - 1993Odwalla - 1996
The Plaintiff
A Real Life Example
Benton Franklin Health DistrictOCTOBER 1998
Call from Kennewick General Hospital infection control nurse
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
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 ate 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
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
Mediation offer $500,000 – “last and final”
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
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
QUESTIONS?