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Obviously, the facts of the case and specific food-borne pathogen at issue will determine the types of experts needed. The following discussion, however, provides some basic framework for the types of experts that you may wish to consider:

Product I.D. If, based upon your development of the case, you have reason to believe your client’s business or product may not be involved, it will likely be important to retain an expert epidemiologist. Ideally, this expert will be someone who has a wealth of experience handling, or even leading, food-borne illness investigations. Be careful, however, to select an epidemiologist who can demonstrate expertise, from an epidemiological standpoint, with the pathogen at issue. Ideally, such an expert would be able to review the plaintiff’s allegations, medical records and testimony, along with any records collected from the relevant federal, state and local governmental entities (discussed above), and confirm the likelihood that your client’s business or product was not involved. This expert will also likely be able to opine about other potential, and possibly more likely, food and/or environmental sources that could have caused plaintiff’s illness.

In addition, you may also want to look internally at your own processes, or perhaps challenge a positive finding by the government (or a private lab) on a product not conclusively linked to your facility. In these instances, a microbiologist may be important as well. Such microbiologists, depending upon the circumstances of the case, could:

• Critique your client’s own internal microbiological testing records (internal environmental testing, incoming raw material audits and product sampling), to confirm that it is unlikely that any contaminated product left your facility;

• If the test results on a product allegedly produced by your client are in question, critique and or challenge the quality of the lab or testing protocol used on the product at issue; or

• If evidence is still available, use alternative and more precise genetic testing than standard PFGE testing currently allows, to determine the likelihood the suspect samples carried the same strain. In some cases, although two samples may “appear” under PFGE methodology to match by two-enzymes, this additional testing could disclose that the suspect samples are indeed not identical.

Negligence / Standard Of Care (your own client): In most cases, you will likely want to retain an industry expert to testify, based upon your client’s operations, including any available production and/or preparation records (including documents such as HACCP programs or SSOPs), that your client met or exceeded the standard of care applicable to the industry.

Negligence / Standard Of Care (plaintiff): In cases which the plaintiff prepared the product personally, you might also consider retaining a food-safety expert to address consumers’ knowledge of and familiarity with food-borne pathogens and the need for proper handling and preparation. Such a witness could speak generally about food safety, the ease of avoiding illness if foods are properly handled and prepared and to offer an opinion about the likelihood that the meal in question (in light of the methods of preparation) could have caused the plaintiff’s illness.

Negligence/Standard of Care (third-parties): Depending upon the facts of your case, you may also want to retain an industry expert in food handling, storage and/or preparation to testify regarding food safety science, industry standards and practices, and the failure of third parties, if any, to adhere to such standards. Third-party negligence, for example, may have contributed to improper microbiological growth, cross-contamination and/or improper handling and cooking practices.

Damages: In any case involving significant injuries, you may also need to retain a medical doctor to assess permanency and future medical expenses. This may also require vocational and economic experts as well.

Although each case is different, such experts can often help a jury understand the rapidly developing science underlying the production, distribution, preparation and consumption (and, occasionally, investigation and testing) of potentially implicated foods. 

Copyright 2009 by Shawn K. Stevens