Defending Food Safety

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Once the pathogen, the plaintiff’s history and other potential sources are identified, a determination can be made regarding the likelihood that your client’s food product was the source of plaintiff’s illness. The following information can be used to disprove plaintiff’s claims:

Incubation Periods: Unfortunately, most plaintiffs believe, when they become sick, that their illness was caused by “the last thing they ate.” In a case involving E. coli O157:H7, for example, a plaintiff may allege in her complaint that she fell violently ill within “a few hours” of the meal in question. Because the incubation period for E. coli O157:H7 is typically 3 to 4 days (and can never be less than 24 hours), the allegations, as stated, would be scientifically impossible to prove. In addition, assuming your records search disclosed that there were no other illnesses associated with your product, grocery store or restaurant, it will be very difficult for plaintiffs to establish that your client’s business or product caused her illness. As noted, under these circumstances, you will already be able to establish that other sources (such as food consumed in the 3 to 10 days before the meal at issue) was a more likely source.

Production Records: In addition to considering incubation periods, you may also be able to establish that your client’s production methods and interventions make it extremely unlikely that the pathogen could have originated from your product. In this regard, some food producers test for pathogens such as E. coli O157:H7, and will not distribute such products unless such tests are negative. Additionally, the product at issue may have been treated with a kill-step (such as cooking) prior to distribution. Here too, such evidence, if scientifically valid and well-documented, can often serve to diminish the likelihood that your client’s product was a source. This might include, for instance, the following information:

• Any Hazard Analysis and Critical Control Point (“HACCP”) plans and related documents;

• Any Standard Sanitation Operating Procedures (“SSOPs”) and related documents;

• Any production related documents, from raw material receiving to final, pre-shipment reviews;

• Any microbiological testing and related data;

• Any transportation documents/cooler logs;

• Any NRs (Non-compliance Reports), if applicable, and related correspondence for the relevant time periods;

• Any Food Safety Corrective Action Reports (“FSCARS”), if applicable, for the relevant time periods;

• Any correspondence, to the extent it exists, between the production facility and the USDA/FSIS (or any other responsible oversight agencies such as the FDA) for the relevant time periods; and

• Any records from any federal/state/local government agencies regarding product testing and causes/sources of an alleged illness.

Distribution Records: In addition to production records, distribution records may also serve to disprove plaintiff’s claims. At its most basic level, your client may not distribute or sell product to the locations where plaintiff reported purchasing or consuming food. In addition, if you discover that additional cases are genetically linked (by PFGE testing) to the plaintiff’s illness, you should be able to obtain investigative records and exposure histories (from the relevant health authorities discussed above) for each of those cases as well. If the other cases appear in geographical locations where you do not supply or sell product, it will be extremely difficult for the plaintiff to establish that your product caused her illness. Finally, the opposite can be said as well. If your client distributes product nationwide, and only a few illnesses appear in a single geographical location (or, the plaintiff’s illness was an isolated event), it also will be extremely unlikely for the plaintiff to convince a jury, in light of your national distribution system and no other reported illnesses, that your product somehow caused her to get sick.

Preparation Records: In the event your case involves the preparation and consumption of raw animal foods (such as beef and poultry), some of the most important information will revolve around how the product at issue was prepared. This is because most pathogens, to the extent they exist in food, are readily killed if the product is thoroughly cooked. In some cases, plaintiffs will readily admit that the food product at issue was undercooked (despite the existence of federally-mandated safe-handling labels warning consumers that raw meat and poultry products may contain harmful bacteria that could cause illness if improperly handled and cooked). In most cases, however, plaintiffs are aware of such warnings and (even if they knowingly undercooked the product) will testify under oath that it was well-prepared.  Not only does such testimony diminish the likelihood that a pathogen could survive the cooking process (it could not), it also diminishes the likelihood that the illness resulted from the particular meal in question.

The same, of course, can be said for cases involving restaurants. If the food at issue was thoroughly cooked, and this can be convincingly established through testimony, internal procedures or documents, this too can go a long way toward excluding the plaintiff’s meal as a likely source.

Other Illnesses: Finally, it will also be important to identify whether any additional illnesses resulted from the meal (or shift, if a restaurant) in question. If others consumed the product, and the plaintiff suffered the only reported illness following the meal in question, it again becomes very unlikely that the particular meal (or restaurant) was a source.

Following this comprehensive analysis, you should have a good understanding of the probability that your client’s product caused the plaintiff’s illness. If plaintiff’s illness likely originated from another source, you will be able to identify additional evidence needed to support your defense, and use formal discovery to establish the same. 

Copyright 2009 by Shawn K. Stevens