Foodborne Illness Litigation – ONLINE EXCLUSIVE

The above example would become much more complicated if the product was re-packaged or became incorporated into another food product. That kind of sleuthing would involve experts (and be very expensive).

Causation. Specific causation, that the food product actually caused the injury, is required. Causation is an inference analysis—a stack of cards. One court hit the nail on the head when it stated “Mere use of the product and subsequent injury…are not a sufficient basis from which to infer causation.” As another court put it, “However, in order for Plaintiffs to succeed in their differential diagnosis, they must ‘rule out’ potential causes.”

The Rare Case – Objective Proof. If a plaintiff went contemporaneously to a physician, a plaintiff’s causation case may be able to rest on the government’s work—“Pulse Net” testing. Pulse net is shorthand for pulsed-field gel electrophoresis (PFGE) testing. PFGE testing is a form of DNA testing in which the contaminant is “fingerprinted” and then patient samples (typically stool) are tested to determine if they contain the same pattern as the contaminant. If the sample does, then proof exists.

The Normal Case – Inferences. In most cases, it is inference upon inference. “[E]pidemiology addresses whether an agent can cause a disease, not whether an agent did cause a specific plaintiff’s disease.” As a result, other possible causes of injury must be ruled out in order to establish specific causation. When did the plaintiff consume the food product and when did plaintiff’s symptoms begin? Other potential sources need to be examined—other foods consumed and environmental exposures. Travel locations, restaurants, retail food store purchases, pets and other considerations all need to be examined.

Is There Temporal Causation? Plaintiffs themselves truly believe the “last thing they ate” caused their illness. But that belief ignores science because different pathogens have different incubation periods. When did the onset of illness occur in relation to consumption of the food product? For example, E. coli 0157:H7 has an incubation period of at least 24 hours. Sometimes a claim of immediate onset of illness can be subject to scientific causation challenge.

Is There Physical Process Causation? Some pathogens can be “killed” by application of heat or other types of sterilization processes (pasteurization, irradiation, and propylene oxide fumigation). An expert needs to examine physical processes along the entire distribution chain—including the end user (i.e. the consumer).

Conclusion

Foodborne illness litigation rests upon on two critical assumptions: All of the food product was contaminated, and the food product caused the plaintiff’s injuries. These two assumptions should be rigorously analyzed. It is hard work, but it is the only way to determine the true scope and nature of the claim. We await the final FSMA regulations, but we know they will have a major impact in foodborne illness litigation.

Kramer is regional and national trial counsel for Fortune 100 companies in class action, multi district, consolidated multiparty and single party litigation. Working at Eckert Seamans Cherin & Mellott, LLC in White Plains, N.Y., he can be reached at [email protected].

References furnished upon request