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Given recent improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported.

By extension, many of these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

For nearly a decade, we have been defending food companies across the country in high-profile outbreak litigation (involving meritorious and non-meritorious allegations). During this period, we have also learned first-hand that when outbreaks do occur, not all investigations are performed properly, and not all resulting claims have merit.

Because of limited resources and other reasons, many outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. Unfortunately, in these and other cases,  many claimants (and their attorneys) continue to sue the wrong party.

Thus, when a food company is faced with an outbreak, it is critical to obtain experienced counsel counsel: (1) who understand how food-borne illnesses are tracked, investigated and confirmed; (2) who can help challenge developing assumptions and conclusions regarding potential source; (3) who can effectively respond to regulators and media during an outbreak and recall; and (4) who know how to properly defend food-borne illness claims and lawsuits when they do, indeed, occur. Over the last 10 years, our firm has written the doctrine on Defending Food-Borne Illness Outbreaks And Claims.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of your incredible efforts to provide safe and plentiful food to our families, we are proud, when lawsuits are threatened, to protect and defend yours.

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It is no small secret that our collective survival depends, quite literally, on the food we eat.

The availability and affordability of food has a direct impact on our individual health, along with (if we work in the food industry) the success and longevity of our careers. Indeed, if we produce food for others, the quality of the food we market and sell also affects our individual ability to provide for and feed our families. In this regard, every one of us (no matter how large or small our role may be) has an interest in making sure that the food we produce (and, ultimately, consume) is the safest it can possibly be.

To date, we’ve done an excellent job. Nevertheless, despite our best efforts, the existence of naturally occurring pathogens in our environment – and by extension in many foods – remains a real part of our business and lives. Given the limitations of science and, in no small part, consumer behavior, no one is immune. Every month, for instance, approximately 6,000,000 Americans will develop some type of food-borne illness. This also means that – each year– nearly one in every four Americans will be affected. Of these, approximately 325,000 individuals will be hospitalized, and nearly 5,000 could die.

And, no matter how much we care about food safety, this trend is not only likely to continue, but will likely accelerate. Given recent and substantial improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported. By extension, these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

This resulting increase in reported outbreaks, along with a corresponding increase in media coverage, has also affected public and governmental interest in food safety. The politics of food safety, of course, translates exponentially into more regulation and a significant increase in food litigation. Thus, if your company has not yet faced a food-borne illness claim, chances are in the short term it will. Additionally, for this reason, businesses should begin contemplating how to best position themselves (from both a food safety and liability standpoint) to anticipate future problems, reduce company exposure, and react appropriately when an alleged food-borne illness or outbreak does indeed occur.

Not all food-borne illnesses claims, however, have merit. As noted, as a direct result of the growing public and political awareness in food safety, we have also witnessed an explosion in food-borne illness and outbreak litigation. In turn, we also know that, because of limited resources and other reasons, some outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. In these and other cases, many claimants (and their attorneys) continue to sue the wrong party.

Thus, here too, it is critical that food companies understand how food-borne illnesses are tracked, identified and confirmed, what to expect in a food-borne illness investigation, how to respond during an outbreak or recall, how to react when confronted with a potential claim, and how to properly defend their business and reputation when lawsuits are ultimately filed.

In any event, this is why we are proud to offer our Advance Series on Managing Food-borne Illness Outbreaks and Claims. For nearly a decade, our food safety team has helped food companies across the nation prevent litigation, manage crisis and defend claims (both meritorious and non-meritorious allegations). In the coming weeks and months, this series will provide additional and timely insight on what food companies can do to anticipate risk and reduce potential exposure, to effectively respond to and manage food-borne illness outbreaks and claims, and to effectively defend food-borne illness litigation and lawsuits when they do, indeed, occur.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of the incredible efforts hard working Americans to provide safe and affordable food to our families, we feel inclined, when lawsuits overreach, to protect and defend yours.

Again, thanks for a job well done. And, welcome to www.defendingfoodsafety.com.

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Each year, approximately 325,000 Americans are hospitalized with a food-borne illness. As a result of improved governmental surveillance, more outbreaks are being identified and more people are bringing claims.

Unfortunately, however, most outbreak investigations fail to identify the real culprit, and some even identify the wrong source. In many cases, the claimants (who mistakenly think they got sick from “the last thing they ate”) sue the wrong party.

Given current trends in surveillance and a resulting increase in litigation, it will be essential for any company faced with potential or threatened food-borne illness claims to gain, at the very least, mastery of the following information:

• How food-borne illnesses are tracked, identified and confirmed;

• What to expect in a food-borne illness investigation;

• How to respond during an outbreak or recall;

• How to react when confronted with an alleged claim; and

• How to properly defend your business and reputation when lawsuits are filed.

Thus, we are proud to offer our food safety litigation library.  Through the advice and knowledge contained within the following chapters, you too can discover the information you need to defeat, or fairly resolve, food-borne illness claims.

Copyright 2009 by Shawn K. Stevens

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After federal and state health officers have done their jobs (1) finding common patterns in bacterial infections, (2) using the tools of epidemiology to find statistically significant connections between patients and common exposures, and (3) requiring companies to recall the suspect product (and often, a great deal more), the media and lawyers go to work.

In the meat industry, for example, the first step after a likely source is confirmed is a Press Release sent out by the USDA’s Food Safety Inspection Service (FSIS) announcing the meat producer, the approximate number of pounds recalled, the production dates at issue and the names under which the product was distributed. The following is an excerpt from a recent press release:

Once these 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.

Companies, therefore, must immediately consider how they wish to present themselves 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 lawyer 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.

Claims and lawsuits, legitimate and not, of course follow promptly. 

Copyright 2009 by Shawn K. Stevens

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Once a claim is filed in state court, the first decision should always be whether to remove the lawsuit to federal court. Often times, because food-borne illness cases are fraught with emotion, and because many aspects of the food industry may be governed exclusively by federal rules and regulations, removal should be seriously considered. Additionally, regardless of whether a case is removed, the same federal rules and regulations (or, simply the facts of the case) may also support a motion to dismiss as well.

1.     Considering The Potential Of Federal Removal

When considering removal, the most obvious factor is federal diversity. If available, use it. If not, you should also be aware that, depending upon the claims asserted and the nature of your client’s operations, there may be certain federal rules and/or regulations that would nevertheless support “federal question” or “federal officer” removal. Although the applicability of these doctrines will depend upon the nature of your client’s business, and the facts and circumstances of each case, they may create additional removal opportunities even in the absence of complete diversity.

2.     Considering Potential Grounds For Dismissal

Regardless of whether a case will be litigated in state or federal court, you should also consider the merits of an early motion to dismiss. Beyond statutes of limitation or other procedural considerations, some or all of the plaintiff’s claims may be subject to a motion to dismiss on other grounds as well – such as federal preemption.

Although there are other federal laws that may act to preempt food-borne illness claims, the Federal Meat Inspection Act ("FMIA") is one example of federal statutory law that has a preemptive effect. This is because the FMIA is designed to regulate virtually every aspect of meat production in America. To ensure that the FMIA is not usurped by the individual states, the FMIA contains an express preemption provision which prevents states from adopting or enforcing any laws that are “different” from the federal standards. Thus, under the FMIA, any claims which attempt to penalize a food producer for doing what federal law permits (whether the claims relate to alleged adulteration or product labeling) may be strictly preempted.

As noted, in addition to the FMIA, other federal laws may operate to preempt state law in similar contexts. For example, the Poultry Products Inspection Act (21 U.S.C. § 451, et seq.), the Egg Products Inspection Act (21 U.S.C. § 1031, et seq.), the Food Drug and Cosmetic Act (21 U.S.C. § 301, et seq.) and the National Labeling and Education Act (21 U.S.C. § 343-1) each contain provisions that can operate, under the doctrines of express or implied preemption, to bar to claims implicating the relevant federal food or labeling standards.

Copyright 2009 by Shawn K. Stevens

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As one might expect, everything in your case (from discovery, to dispositive motions, to trial) will be driven by the type of pathogen at issue. When a claim is filed, take some time to understand completely the science relating to the specific pathogen at issue. This should include identifying where the pathogen is commonly found, whether it is an adulterant in the food product at issue, how easily the pathogen is destroyed (i.e., through cooking), the incubation period and symptomology associated with infection, and the nature and scope of potential damages that can result.  The following chart, for instance, identifies some common pathogens and the corresponding incubation periods:

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Once you have an understanding of the pathogen at issue, it will be critical to understand the true nature of plaintiff’s allegations. As soon as any food-borne illness case is filed, the following resources should be analyzed to help you better understand plaintiff’s illness:

• Pleadings and Demands: Plaintiffs' own pleadings and demands will often provide a wealth of information. From the pleadings, you can typically identify the nature of the illness, the pathogen at issue, the date of the meal, and the potential illness onset date. In turn, this information is often reinforced by the plaintiff’s recitation of events in his or her demand. In addition to the plaintiff’s own summary, demands will typically contain medical records relating to the plaintiff’s treatment. Here too, these records will be very helpful to confirm the plaintiff’s exposure history, onset date and symptomology within days of the alleged meal in question.

• Media Resources: In more serious cases, media resources may also provide additional information relating to the plaintiff and his or her illness. Here too, additional information can often be gathered from statements made by the plaintiff or relatives familiar with his or her case. Additionally, you should search media references for reports of other cases in time and proximity to the events alleged in the complaint. This, too, will help identify whether the plaintiff is an isolated case or potentially linked to other illnesses.

• Medical Records: The moment a case is filed, it will be important to obtain medical records authorizations from the plaintiff. Once medical records are obtained, they should be carefully analyzed to identify the plaintiff’s history, the onset date of the plaintiff’s illness, the progression of the illness, whether any confirmatory tests were obtained, and any information regarding the plaintiff’s exposure to other potential sources. Such records are critical when assessing the merits of plaintiff’s claims.

• Governmental Resources: Additionally, as soon as a case is filed (or sooner if you are already aware of potential claims), you should move as quickly as possible to obtain records from any relevant federal, state and local health authorities. If the case involves a pathogen that is reportable, documents should be obtained through a public records request from any city, county or state health departments overseeing the geographical location where the plaintiff resides. In addition, records should also be requested from the Centers for Disease Control, and either the USDA/FSIS and/or the FDA (depending upon the product and establishment at issue). Although these records can take weeks (and sometimes longer) to obtain, they will often provide critical information relating to the plaintiff and other, potentially related, illnesses.

In the event the plaintiff confirmed positive for the pathogen at issue, additional records relating to the plaintiff and his or her illness will exist at some or all of these levels. Not only can you gain information about the plaintiff’s case, but if his or her illness was linked to other illnesses, you will be able to obtain useful information regarding these cases as well. Such records typically include food-borne illness questionnaires, exposure histories, food consumption histories, illness information, important product information, communications between health authorities, potential sources or exposures that have been excluded and any findings or conclusions that may have been reached. As a result, such information can be very useful, if analyzed appropriately, to either confirm your product as a potential source, or to establish a strong argument that the source of the alleged illnesses was likely a different source altogether.

Alternatively, in the event there was no confirmatory testing, such records may nevertheless be helpful to show that there were also no reported illnesses in time and proximity to the plaintiff. These records (or the absence of such records) may also help to establish that the plaintiff’s infection was an isolated event, and likely originated from a source other than your product.

Although this list is by no means exhaustive, these are just some of the resources which will help you better understand the nature of plaintiff’s illness from the outset of the case. Importantly, this information will also help confirm very early in a case whether: (1) your client’s product was likely involved; or (2) whether it can be excluded as a potential source. 

Copyright 2009 by Shawn K. Stevens

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Governmental records are often the best source of information when investigating food-borne illness claims.

As soon as a case is filed (or sooner if you are already aware of potential claims), you should move as quickly as possible to obtain records from any relevant federal, state and local health authorities.  If the case involves a pathogen that is reportable, documents should be obtained through a public records request from any city, county or state health departments overseeing the geographical location where the plaintiff resides.

If an individual (or group) confirms positive for Botulinum, Campylobacter, Cryptosporidium, E. Coli O157:H7, Hepatitis A, Salmonella or Shigella, his or her healthcare provider is generally required to report the case to authorities. Once reported, local and state health departments will initiate an investigation. Similarly, whenever a group of individuals confirm positive for pathogens not generally considered “reportable,” the cases are still typically reported and will often result in some type of investigation. 

For this reason, it is always critical to obtain documents potentially generated by the following governmental agencies to understand fully the cause of an illness or outbreak:

• Any state, county and/or city health departments in the location where claimant either resides or was likely exposed. For requests to state and local government agencies, please visit www.foiadvocates.com to identify the relevant public records laws, and to obtain additional helpful information on issuing FOIA requests to these authorities.

• The CDC whenever the illness involves Campylobacter, E. coli O157:H7, Listeria, Salmonella and/or Shigella.

CDC/ATSDR
Attn: FOIA Office, MS-D54
1600 Clifton Road, N.E.
Atlanta, GA 30333

• The USDA/FSIS whenever the illness or outbreak involves an alleged meat, poultry or egg product:

Freedom of Information Act Officer
USDA, Food Safety and Inspection Service
Room 1140-South Building
1400 Independence Avenue, SW
Washington, DC 20250

• The FDA whenever the illness outbreak involves any food products other than meat, poultry or eggs (i.e., produce and vegetables):

Food and Drug Administration
Office of Management Programs
Division of Freedom of Information (HFI-35)
5600 Fishers Lane
Rockville, MD 20857

For requests to the CDC, USDA and/or FDA, cite 5 U.S.C. § 552 (the Freedom of Information Act) to support your request. 

Although these records can take weeks (and sometimes longer) to obtain, they will often provide critical information relating to the plaintiff and other, potentially related, illnesses.

Copyright 2009 by Shawn K. Stevens

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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

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Although serving discovery requests early in a food-borne illness case can be helpful, written discovery in these matters should always be approached with extreme caution. This is because offensive discovery, depending upon the facts of your case, always has the potential to weaken a solid defense strategy.  Over the years, we have developed a comprehensive list of specialized interrogatories and requests for production of documents that can be extremely useful in separating the "wheat from the chaff" and,where cases potentially have merit, reinforcing a winning defense. Thus, regardless of the facts in your case, great care should always be used when developing and serving any written discovery requests in a food-borne illness lawsuit. 

For more information, please contact Shawn K. Stevens directly at stevens@gasswebermullins.com.

Copyright 2009 by Shawn K. Stevens

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Once you have identified the potential weaknesses in a plaintiff’s case, and have armed yourself with some basic discovery, the plaintiff’s deposition should be designed not as a “discovery tool,” but as an opportunity to reinforce known weaknesses and, where possible, supplement the argument for, or perhaps even confirm, your client's innocence. 

Here too, during our years of experience, we have developed a very thorough and comprehensive approach to these depositions.  Although we would love to share the intimate knowledge we have gained by virtue of litigating a vast array of food-borne illness matters, we would rather ask, in this instance, that you simply give us a call. 

For more information, please contact Shawn K. Stevens directly at stevens@gasswebermullins.com.

Copyright 2009 by Shawn K. Stevens

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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

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Whether liability can be proven easily, or will likely be questionable, most cases will involve a dispute over damages. Here too, depending upon the facts and circumstances of your case, you might want to consider the following:

Third-parties (Indemnity): Whether your client is a food manufacturer, distributor, grocer or restaurant, you should determine, as soon as a claim is filed, the existence and scope of any relevant contractual documents governing damages and indemnity. While often overlooked, such documents may enable you to tender the claims or seek indemnity from other, potentially more responsible parties.

Plaintiffs: In every case, inquire as soon as a complaint is filed whether plaintiff’s allegations comport with known symptomology and potential complications. Although plaintiff may allege serious complications such as HUS, these allegations may prove untrue. Additionally, although plaintiffs may allege permanency, including the need for continuing observation or organ transplants, science may prove such allegations to be unfounded. Thus, in more serious cases, qualified experts will likely be essential.

Additionally, regardless of the existence or non-existence of long-term effects, plaintiffs will, as they always do, exaggerate their suffering in an attempt to elicit sympathy and increase the value of their claim. It goes without saying, however, that in many cases the plaintiff’s own medical, employment and other records will disprove these allegations. As discovery progresses, ensure that you, at the very least, obtain the following:

    1.  Potential Records:

• Medical records (certified records, pre/post occurrence);
• Employment records;
• Unemployment records;
• School records;
• Social Security records; and
• Tax information (state/federal).

    2.  Potential Witnesses:

• Hospital personnel;
• Family members/friends (spouse and children); and
• Persons familiar with plaintiff’s recovery (i.e., co-workers).

In addition to these resources, be sure to check statements made to the media, internet pages or blogs authored by the plaintiff (or family), and any healthcare facilitated websites the families of ill patients may have used to communicate and report progress. With this information, you should be able to counter any attempts by plaintiffs to grossly exaggerate symptoms and allege long-term suffering.

Copyright 2009 by Shawn K. Stevens

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