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Published: September 20, 2010
Authors:
David Easton and
Saul Glazer
Overview
Sharon and Bill Jones are in their mid-forties. They both work full-time and care for their two young children. Given their busy schedules, they often eat out, going to multiple fast food restaurants in the course of any given week. When Sharon becomes severely ill, her doctor advises the likely cause is food contaminated with Escherichia coli (“E. coli”). The doctor orders a fecal test and asks her to list all the places where she has consumed hamburger in the last few days. The doctor also notifies the health department. Because she ate at a variety of different restaurants, it is difficult to pin down the source of the E. coli. As Sharon is recovering from her illness, the health department locates another individual who became ill after eating at the same chain of restaurants as Sharon but in a different state. Because this restaurant obtained ground beef from the same distributor, the distributor voluntarily agrees to recall certain lots of ground beef. In the course of the investigation, none of the ground beef recalled tests positive for E. coli. Sharon hires an attorney to pursue a claim against the restaurant chain.
Food-borne illness is a part of life. Many people, at one time or another, experience stomach cramps and mild diarrhea, and attribute that discomfort to something they ate. Fortunately, for those infected, most food-borne illnesses are generally not life-threatening. Exposure to Escherichia coli (“E. coli”), on the other hand, can be dangerous and may cause permanent injury or death. [1] E. coli comes from animal fecal matter, which may be present at any stage in the food processing chain, from the slaughterhouse, the processing plant or the restaurant. Poor food handling may contribute to the E. coli by allowing E. coli to grow (lack of refrigeration) or not render the E. coli harmless (failure to cook properly).
“Food products containing foreign substances” is the technical name for cases involving E. coli. The plaintiff almost always is the party who ingested food. The defendants, on the other hand, could be a grower, butcher, packer, processor, distributor, wholesaler, retailer, cafeteria operator or restaurant serving the food.
The focus of this two part series is food contaminated with E. coli, documented by a fecal sample. [2] We will use ground beef as the contaminated product. The legal steps necessary to prosecute and/or defend an E. coli case, however, apply to cases involving plants and plant parts, animal and animal parts, inorganic material such as glass or pebbles, metal products such as nails and needles, poisons, and other unspecified foreign materials. Such cases involve claims of negligence, claims for liability for breach of warranty, and claims under the theory of strict liability. Because E. coli is a common contaminate, it can be difficult to trace the source.
E. coli Cases
E. coli contamination can result from multiple sources, including the actions of the party serving the ground beef, the actions of the party grinding the ground beef, and the actions of the butcher of the meat cuts ground and mixed. For this reason, companies in the distribution chain follow strict protocols and often engage in testing to help document that their actions did not contaminate the ground beef. Defenses to an E. coli case may include:
- Implementation of a hazard plan
- Post-operation testing
- Other sources of contamination
- Contributory negligence
This evidence almost always involves rebuttable inferences and shifting burden of proof. Simply stated, an E. coli case typically is a burden of proof case regardless of whether you are defending or prosecuting.
Of course, the primary burden of proof always rests with the plaintiff to show that the product contained foreign materials, causing E. coli when the plaintiff consumed it. In an ideal case for a plaintiff, the plaintiff would have scientific evidence of the presence of E. coli based upon his or her fecal sample and further evidence of E. coli on the food ingested based upon a post-ingestion E. coli test of the actual food. Most often, however, the plaintiff only has a fecal test taken several days after he or she gets sick, because the contaminated food that caused the illness has been discarded. While a patent fecal test creates the inference that food ingested was contaminated, it does not identify the specific food source. Such identification of the food source is generally through testimony of plaintiff, indicating they became sick after eating at a specific restaurant or after ingesting a specific food. This leads to another inference that the restaurant or food identified was the source of the food contaminated with E. coli. Often this inference is supported by more than one person becoming ill where each has consumed the same lot of meat.
While plaintiff’s case generally involves a fact (fecal test) and an inference of the source, the defense focuses on the inference of “when” plaintiff became ill and thus “where” plaintiff was infected. [3]
The defenses also vary by the party. For the restaurant owner, the focus is almost always on the menu warnings and other sources. Those in the supply chain, including the grower, butcher, packer, processor, distributor and wholesaler, focus on multiple defenses, including pre-processing testing, post-processing testing, and other sources of E. coli such as eating feces contaminated lettuce or tomatoes. Records showing the temperature of the ground beef may also create an inference that the ground beef was properly stored. E. coli cases generally break down into ones involving very serious injuries or death, and cases in which a plaintiff is only ill for a short time and has no permanent injury.
In Part Two we we will discuss how to test for the presence of E. coli, and examine both sides of a food-borne illness case.
For more information, contact David Easton at 608.283.6713 or deaston@axley.com, or Saul Glazer at 608.260.2473 or sglazer@axley.com.
[1] E. coli 0157 infections can result in a serious complication called hemolytic uremic syndrome, in which toxins destroy red blood cells. It can lead to kidney failure, neurological damage, and, in 5 to 10 percent of cases, death.
[2] The Center for Disease Control and Prevention estimates that more than 70,000 Americans come down with E. coli 0157 each year. The CDC estimates that non-O157 E. coli cases cause 36,700 illnesses, 1,100 hospitalizations and 30 deaths in America each year.
[3] Because of the extended onset time, plaintiff often has eaten at more than one location.
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