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In many food-borne illness cases, a winning defense begins long before a claim is actually filed.

Whether you are a food manufacturer, processor, distributor, grocer, restaurant or franchisor, there is a strong possibility you will become aware of illnesses potentially linked to your business or product soon after they are reported to state and federal investigators.

Thus, when faced with an alleged food-borne illness or outbreak, it is essential that you immediately understand the full nature of the investigation. Once an illness or outbreak is identified, you should immediately retain competent counsel who can work closely with state, local and federal agencies to, at the very least, accomplish the following goals:

• To directly assist investigators, where appropriate, during the course of the investigation;

• To determine, while assisting in any ongoing investigation, whether your product is (or is not) likely involved with the alleged illnesses or developing outbreak;

• To help quickly define (if your product will likely be implicated) the particular product involved along with the parameters of any potential voluntary recall;

• To prepare and refine appropriate responses (with an eye toward future litigation) to any formal requests from governmental agencies for production information, distribution records and/or proposed corrective actions;

• To track, in real time, the identification of existing and potential future illnesses and claims (this will likely pay significant dividends when such claims are later threatened or filed); and

• Based upon the information developed during the course of the ongoing investigation, to articulate appropriate responses to media inquiries.

Assuming that your company is well positioned at the outset of an investigation, you may be able (through your own internal efforts) to help establish that your product or business is not associated with the outbreak being investigated. Alternatively, if your product is likely implicated, aggressively tracking real time information will allow you to maintain a complete picture of the developing investigation, play an active role in the investigation itself, take immediate and productive corrective actions, if necessary, respond appropriately to media, and begin to develop a response to claims (whether meritorious or not) which will likely later result.

In this regard, focusing early on potential future claims will also pay huge dividends when litigation is later threatened. The information learned in the early stages of an investigation will in many cases allow you to understand, at the outset of an event, the true scope and nature of potential illnesses. In turn, once emerging cases can be pinpointed geographically, additional research can be performed to learn more about the circumstances surrounding each potential claimant. Using contacts established early on with governmental investigators, internet databases and other resources (such as media reports and hospital-facilitated patient websites), it may also be possible to track closely the progress and recovery of potential claimants as well.  Here too, if these potential claimants have already been identified and nature of their illness fully understood, false allegations when claims are later threatened or filed (i.e, the exaggeration of an injury or the understatement of an excellent recovery) can be quickly distinguished and separated from potentially meritorious or more serious claims.

Additionally, as noted, your company must also immediately consider how you wish to present yourself in the media.  A company spokesman should be selected, keeping in mind that this person will likely be deposed and/or his remarks used at trial. It may also be appropriate to have your lawyers respond to press inquiries, especially if you are responding to a statement by a plaintiff’s attorney. A press release that includes quotes on behalf of the company can also work, and may be the most prudent course in rapidly evolving circumstances where much remains unknown. In all events, it is necessary to have in mind what the company’s themes will be at trial, so that early statements will be consistent with arguments that may be made months and years later. Additionally, assuming your company has cooperated fully with governmental investigators throughout the course of an investigation, any statements issued by the government will likely be favorable to your company, and may also (at least implicitly) adopt some of these themes as well.

Once press releases are issued, expect to see significant press coverage and blog entries on the leading plaintiffs’ lawyers’ sites, including www.marlerblog.com. Because the FSIS provides email alerts about recalls, very little time passes between the press release itself and its appearance in the press and on the web. Claims and lawsuits, legitimate and not, of course follow promptly.

Alleged illnesses, outbreaks and recalls can be managed effectively, assuming that you and your company aggressively look for ways at the outset of an investigation to help governmental investigators solve the problem.  In the future, we will continue to offer advice from past experiences on how to best manage potential outbreaks and recalls.

While no two cases are the same, it is essential to remember that an effective defense begins the moment any potential illnesses and outbreaks are identified. 

Copyright 2009 by Shawn K. Stevens