Slide1: Focus on Food Safety: Distinguishing between legitimate and illegitimate claims of food poisoning


Separating the Chaff from the Wheat : Separating the Chaff from the Wheat How do you determine the strength of a foodborne illness claim?


Marler Clark, LLP PS: Marler Clark, LLP PS Since 1993 Marler Clark has represented thousands of food illness victims in over 30 States. Settlements and Verdicts - nearly $200,000,000 We only bring forward a fraction of the victims who contact our offices. Some examples of your “missed opportunities:”


There is a Worm in my Freezer!: There is a Worm in my Freezer! “I recently found a whole, 2-cm long worm packaged inside a Lean Cuisine frozen dinner.  I have the worm in my freezer.  I'm interested in discussing my rights in this matter.  Could you please contact me, or refer me to a firm that may be able to give me assistance? ”


“Christening” the Carpet: “Christening” the Carpet “I opened a box of Tyson Buffalo wings and dumped them out on a plate to be cooked in the microwave.  An unusually shaped piece caught my eye and I picked it up.  When I saw that the ‘piece’ had a beak, I got sick to my stomach. My lunch and diet coke came up and I managed to christen my carpet, bedding and clothing. I want them to at least pay for cleaning my carpet etc.” 


The Chaff: The Chaff Just like insurers, food industry members, and defense counsel, we share the need to quickly and reliably recognize unsupportable claims - how do we do it?


Enter the FBI: Enter the FBI


Evaluation Tools For Serious Cases: Evaluation Tools For Serious Cases Health Department Investigation of the Outbreak/Incident Prior Health Department Inspections Medical Records Lab Reports Discovery The Client


Outbreak Investigation Report Almquist v. Finley Elementary School E. coli Outbreak: Outbreak Investigation Report Almquist v. Finley Elementary School E. coli Outbreak 8 confirmed cases of E. coli O157:H7 – all PFGE matches 3 probable cases 1 secondary case Sick students in grades K-5 All but one ill child ate a taco meal (maybe) No ill staff members


Outbreak Investigation Report Almquist v. Finley Elementary School E. coli Outbreak: Outbreak Investigation Report Almquist v. Finley Elementary School E. coli Outbreak Food handling errors noted in the kitchen Evidence of undercooked taco meat No pathogen found in food samples Because of small number of ill children CI not > 95%


At Trial: The Plaintiffs’ Case: At Trial: The Plaintiffs’ Case Washington State Department of Health and Benton-Franklin Health Department conducted a fair and thorough investigation Final report issued by the WDOH concluded the taco meat was the most likely cause of the outbreak The conclusion reached was the fair and correct one


At Trial: The School District’s Defense: At Trial: The School District’s Defense The taco meat was safe to eat because: We love children We are always careful to cook it a lot We’ve never poisoned anyone before The health departments botched the investigation and jumped to a hasty conclusion Something else caused the outbreak We didn’t do it, but if we did, it’s not our fault someone sold us contaminated ground beef


What Did the Jury Think?: What Did the Jury Think? The investigation into the cause of the outbreak was fair and thorough The investigators were correct to conclude that, more probably than not, undercooked taco meat caused the children to become ill The School District was responsible for ensuring the safety of the food it sold to its students - $4,750,000 verdict


Prior Health Department Inspections: Prior Health Department Inspections Improper Cooking Procedures Improper Refrigeration Improper Storage and Cooking Procedures Improper Sanitation


Improper Cooking Procedures: Improper Cooking Procedures A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain Her illness was not culture-confirmed No food on site tested positive for E. coli O157:H7 Review of health inspections revealed flaws in cooking methods Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splash onto a nearby bun.


Improper Refrigeration: Improper Refrigeration A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak No contaminated leftover food was found A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission Health Department report noted “raw meat stored above the Jell-O in the refrigerator”  The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator.


Improper Storage and Cooking Procedures: Improper Storage and Cooking Procedures Banquet-goers in southeastern Washington tested positive for Salmonella Leftover food items had been discarded or tested negative  Restaurant had “pooled” dozens, if not hundreds, of raw eggs in a single bucket for storage overnight, then used them as a “wash” on a specialty dessert that was not cooked thoroughly


Improper Sanitation: Improper Sanitation Producer and distributor of high-end fresh food items were identified by various health agencies as the source of a large Shigella outbreak on the west coast  Health department inspections revealed serious problems at the firm’s production facilities: Lack of fully operational bathrooms for employees right off production line Insects near food production sites Evidence of rodents Major commercial purchaser of the firm’s product had refused to purchase any more products Criminal Indictments


Medical Records- What is Important?: Medical Records- What is Important? Laboratory testing Matching symptoms with incubation periods of specific pathogens Matching symptoms with specific characteristics of pathogens


Laboratory Testing – Humans and Product: Laboratory Testing – Humans and Product PFGE and PulseNet Mandatory Reporting


Matching Symptoms with Incubation Periods: Matching Symptoms with Incubation Periods Incubation Periods Of Common Pathogens


Matching Symptoms with Specific Characteristics of Pathogens: Matching Symptoms with Specific Characteristics of Pathogens E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter Vibrio


The Discovery Arsenal:: The Discovery Arsenal: Interrogatories Requests for production Requests for inspection Request for admission Third-party subpoenas FOIA requests Depositions Motions to compel


Jack in the Box – Where it all Began: Jack in the Box – Where it all Began


Odwalla – It Started in a VW Van: Odwalla – It Started in a VW Van


E. coli O157:H7 and HUS: E. coli O157:H7 and HUS 5 to 10% of people with E. coli infections develop HUS Characterized by Destruction of red blood cells Destruction of platelets Acute renal failure Organs effected: Kidneys, pancreas, liver, brain, heart


Salmonella: Salmonella Usually self-limiting Symptoms: Diarrhea Abdominal cramps Fever Nausea Vomiting


Reiter’s Syndrome (Reactive Arthritis): Reiter’s Syndrome (Reactive Arthritis) Seemingly unrelated symptoms, occurring 1-3 weeks after infection Inflammation of one or more joints after infection Knees, ankles, feet are typical joints affected Involvement of eyes (conjunctivitis) Inflammation of the mucous membrane that covers the eyeball or of the inner eye Urinary tract infection


Hepatitis A: Hepatitis A Kills nearly 100 people every year in the U.S. Average fatality rate is 0.3% People over age 40, fatality rate is 2%


Hepatitis A: Hepatitis A Creates toxins that shut down the liver Patients experience: Fulminant hepatic failure Encephalopathy (central nervous system depression and abnormal neuromuscular function) Cerebral edema (swelling of the brain)


What Will a Jury Think?: What Will a Jury Think?


Slide32: 6600 Bank of America Tower 701 Fifth Avenue Seattle, Washington 98104 1-800-884-9840 www.marlerclark.com bmarler@marlerclark.com Questions?