Chapter 6: Understanding The Circumstances Of Plaintiff's Illness
Return to Defending Claims.
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
