Food Companies Should Plan for Outbreak Response Before it Occurs, Act Quickly to Shape Outcome

In those circumstances in which a company’s product is ultimately linked to an outbreak and a recall is warranted, management should also begin anticipating and planning for the claims and lawsuits that will follow. This includes enlisting experienced food safety regulatory and litigation counsel as early as possible in the investigative and recall process.

In addition to assisting with the recall, counsel should also be used to help address the regulatory issues that will follow. Once a recall is announced, federal investigators will often perform a comprehensive assessment of a food company’s operations to seek and “find” at least one problem. These findings will, in most instances, be documented in an FDA Warning Letter or USDA Notice of Intended Enforcement. Unfortunately, this happens even if a company is operating to virtual perfection.

In turn, when responding to the government’s criticisms, whether warranted or not, it is critical for management to consider how each of the comments it makes could affect future litigation. Certain regulatory “terms of art” often used in these communications may be understood by government and industry to have one meaning, but these same terms can be mischaracterized by opposing counsel or misunderstood by a jury.

Management should carefully draft responses that (1) put the recall into context; (2) articulate clearly the company’s position with respect to the alleged problem, even if it may differ from the government’s position; (3) detail each of the positive elements of the company’s food safety programs; and (4) address the governmental requests appropriately and artfully, in a way that will be appreciated and understood by a jury. Appreciating how the company’s post-recall communications with the government may be used by opposing counsel in lawsuits months or years later can significantly reduce a company’s potential litigation exposure.

When claims are eventually asserted, food companies should work with experienced food safety litigation counsel. This is because many companies (and their lawyers) managing a recall and outbreak for the first time are not equipped to effectively challenge any one of the complex epidemiological, microbiological, and long-term damage issues often present in these cases.

In many lawsuits, significant questions also exist about the true source of a claimant’s illness. Unfortunately, most people incorrectly believe that they got sick from the “last thing they ate.” In those cases in which the target defendant is not at fault, the key to proving the company’s innocence often turns on a painstaking analysis of health department records, patient questionnaires, shipping records, witness interviews, and key depositions.

The emotional edge a plaintiff brings to the table can also be tempered in some cases by raising challenges to the source of the alleged illness. If we can show significant problems with an outbreak investigation and its conclusions, or demonstrate that our client produced and distributed thousands of safe and wholesome meals the week it processed the meal in question—and the plaintiff was the only person who allegedly became ill—a jury will likely be more disposed to set aside emotion and focus instead on what really made the plaintiff sick.

Most jurors will also understand and appreciate a plaintiff’s obligation to exercise reasonable care for his or her own safety. Depending upon the circumstances, a plaintiff may have admitted to health department investigators to eating a rare or undercooked hamburger despite the federally-mandated safe handling labels warning her not to. Where a plaintiff shows no appreciation of the inherent risk, a jury will be more disposed to set aside sympathy and attribute fault to the plaintiff.

Additionally, many claimants and their attorneys will also significantly inflate and exaggerate damage claims to maximize potential recovery at settlement or trial. When a plaintiff’s overreaching is challenged appropriately and tactfully, his or her dishonesty in many cases will significantly diminish the potential sympathy a jury might otherwise be inclined to feel. While emotion is always a factor, it can in many instances be effectively controlled.