Foodborne Illness Litigation - PowerPoint Presentation

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Foodborne Illness Litigation

Ryan M. Osterholmryan@prtizkerlaw.com Twitter@ecolilawyer 612-338-0202Pritzker Hageman, P.A.Minneapolis, Minnesota

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Foodborne Illness Law

Pritzker Hageman, P.A., is one of the few law firms in the country with a practice devoted to Plaintiffs’ foodborne illness claims.Pritzker Hageman, P.A., has represented individuals sickened in nearly every major foodborne illness outbreak in the country over the last decade. Slide3

Foodborne Illness Law

HistoryStrict liability standardCommon foodborne pathogensDamagesChallenges Slide4

Longstanding Public Policy:

Food Must Be SafeProsser traces food liability to 1266. William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) 69 Yale L.J. 1099, 1103, 1114 (1960)) Nineteenth century courts imposed liability on food sellers on basis of “special implied warranty” applicable to food Slide5

Modern Food Regulation

Upton Sinclair’s The Jungle (1906)Public outcry leads to passage of the Federal Food and Drug Act (1906) (1938).States pass analogous laws, often with more teethFSMA Slide6

Modern Strict Liability

Food cases were the first type of cases where courts imposed liability, regardless of privity or negligence. By 1960, 17 jurisdictions imposed “strict” liability on food seller.Today, courts universally hold food producers, from restaurants to farmers, strictly liable. Slide7

Who is legally responsible?

Usually EveryoneShipperDepends heavily on state lawProducerIntermediary sellerEnd SellerAuditor Slide8

Each player generally has different motivation

Sometimes these motivations are more than moneyReputation in food business is of the utmost importance Slide9

What is a foodborne illness case?

Strict product liability: focus on product not conduct.If the food is unsafe to a reasonable consumer, it is defective and the producer is liable. Key issues:The allegedly contaminated food was consumed. How do you prove it was contaminated?The person ate multiple food products at same time. How do you prove which was contaminated?Slide10

What is defective?

A Food Product Is DEFECTIVE if it is not Reasonably Safe—That is, unsafe beyond that which is expected by a reasonable consumer.Some pathogens in some products are considered adulterants, making a product per se defective and illegal to manufacture and sell if contaminated. This process developing, as food becomes safer, public has less tolerance for pathogens in food.Undesirable defense strategy to argue pathogens are supposed to be in food.Slide11

Common Foodborne Pathogens

E. coli Salmonella ShigellaCampylobacterListeria monocytogenesNorovirusHepatitis ASlide12

Damages?

Like any other case, even if there are good provable facts, there has to be damages. A few cases have significant damages, but many more do not.What are the medical specials? This calculus is similar to other PI and product cases.It can be quite expensive to pursue a foodborne illness case.The cases we generally agree to pursue have hospitalizations and many have long-term , medical complications.Slide13

Strong Foodborne Illness Cases

ExposureCorrect timingMicrobiological link EpidemiologySolvent defendantSignificant damagesSlide14

Negligence

Do not need to prove negligence to recoverBut…Having evidence of negligent conduct can be very important in telling your story to a jury or pressure for settlement. Negligence and outbreaks frequently go hand-in-hand. Companies doing things the right way rarely hear from us or make the news for the wrong reasons.Slide15

Takeaways

Most foodborne illness cases are not recoverableEven if they are, it must be the right caseRecords, records, records!If it is the right case, be prepared for long journeyEach case is uniqueSlide16

Foodborne Illness Litigation

Ryan Osterholmryan@prtizkerlaw.com Twitter @ecolilawyer 612-338-0202Pritzker Hageman, P.A.Minneapolis, Minnesota