Stay Informed

Food-borne illness (“FBI”) cases are, broadly speaking, product liability cases. However, properly evaluating and responding to them requires understanding the unique issues they involve that are not involved in other product liability cases. For instance, tracing the source of contamination responsible for a foodborne illness can be a difficult and complex process, involving particular methods of tracking applicable to only the food industry supply chain. In that chain, there are many opportunities for introduction of pathogens that may implicate some and exculpate others. The theories of liability available for claimants in FBI cases also impact specific defense strategies. This article provides insight into each of these topics, along with practical advice for how to investigate foodborne illness claims.

Pinning Down the Culprit

Generally speaking, claimants have to establish that the food they ate was contaminated with a particular pathogen, that the pathogen is capable of producing the types of injuries claimed, and that the particular pathogen is what, in fact, caused their injuries. Thus, when faced with an FBI claim, defense counsel must immediately take action to investigate the cause of the illness, i.e., the identity of the pathogen. Evaluating the symptoms plays a major role in identifying the type of pathogen because different pathogens produce different symptoms and different pathogens have different potential sources. Thus, identifying the pathogen through proper diagnostic analysis can help point to potential sources. In addition, different pathogens have different incubation periods. If the pathogen is identified, an exposure window can be established based on known characteristics of the pathogen, such as latency, incubation period, and optimal conditions for its survival, then the relevant portion of the claimant’s consumption history can be investigated. Counsel should first determine whether a government health agency has investigated the incident and/or linked a particular food eaten during the relevant time period to a food poisoning outbreak. Government investigations, while potentially damaging to the insured, can represent a useful source of reliable information contemporaneous to the infection. Moreover, a record of cooperation with the regulatory agency can help mitigate the potential for an award of punitive damages.

For each suspected food item, counsel should investigate whether others ate the same food and, if so, whether they developed similar symptoms. Lack of similar symptoms suggests alternate sources. In addition, if the claimant received medical attention for his or her illness, medical records and lab results should be carefully reviewed. Many times, overlooked potential alternate causes and/or alternate sources for the claimed illness can be identified from medical records that are close in time to the initial response. They can also help identify the pathogen in question. For example, stool and blood cultures can identify the particular pathogen that caused the claimant’s illness.

Theories of Liability

The typical theories of liability for FBI claims are: (1) Strict Liability; (2) Negligence; and (3) Breach of Warranty. Strict liability is most favorable to a claimant because he or she does not have to show that the manufacturer/supplier of a contaminated food product breached a standard of care (e.g., that the food provider was not sufficiently careful in making or distributing the food product). The claimant must only establish that the item he or she ate was contaminated and that the contamination caused the illness claimed.

A claimant may allege that a food provider was not reasonably careful in manufacturing/supplying a contaminated food product that made him or her sick, thereby basing liability on the food provider’s negligence or failure to use due care. Depending on the jurisdiction, a claimant may also argue that the food provider violated applicable implied warranties that the subject food should have been fit for consumption. Contamination may also violate express guarantees made by a food provider that its food product has been prepared and/or washed in a particular manner.

Evaluating Liability

The most significant legal hurdle for a claimant is typically proving a causal connection between the consumption of allegedly contaminated food and the claimed illness. If samples of the allegedly contaminated food are not available, a claimant typically relies on circumstantial evidence to establish causation, such as the fact that others who ate the same food item experienced similar symptoms. As a result, circumstantial evidence, including but not limited to documentation tracing the contamination to a particular source, safety audits, government health inspections, internal policies/procedures, and microbiological testing, is critical in evaluating a particular food provider’s liability for an allegedly contaminated food product. Counsel should obtain and evaluate documents evidencing the food provider’s cooking procedures, food handling, sanitation, food storage and refrigeration. Counsel should also interview employees involved in production, quality control, cleaning, sales, shipping and transportation.

For food suppliers, distributors and growers, supply chain documentation and testing conducted in the field and quality assurance testing prior to sending products to market can help eliminate and/or narrow down field operations as a potential source of contamination. It can also help identify other potential defendants.

Prior health department inspections can be used to establish a history and/or a pattern of adequate/inadequate food-handling practices. Defense counsel must keep in mind that evidence of a pattern of improper food-handling practices will provide support for a punitive damages claim as the claimant will have evidence to argue that the food provider had knowledge of the contamination. This information is thus extremely important and counsel should consider retaining and consulting experts early to opine on the sufficiency of internal policies and procedures, as well as the methodology of any government investigation into the potential sources of contamination.

Conclusion

By efficiently and quickly investigating and identifying the cause of the illness, determining the scope of the government health agency investigation conducted to date, and ascertaining whether others ingested the same food and subsequently developed similar symptoms, defense counsel will be better prepared to develop a custom strategy tailored to help defend the food provider and minimize its potential liability.