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Published: September 24, 2010
Authors:
David Easton and
Saul Glazer
In part one of this article, we introduced E. coli cases and the basics of prosecuting them. Click here to read Food-Borne Illness and the Science Behind Such Cases: Part One.
Testing
The symptoms of E. coli include severe stomach and intestinal cramping, diarrhea, and blood in the stool. The treating physician will at some point in the treatment order a fecal sample. [1] The fecal sample can be conducted to various levels of scientific certainty. The initial sample almost always involves a PFGE [2] test initially relying upon two enzymes.
The PFGE test identifies the presence of E. coli. By comparing the pattern with fecal samples from other parties, a skilled professional can make a determination that the pattern is identical, leading to the inference that multiple parties ate from the same contaminated source.
Meat butchers conduct a second test which involves swabs on the exterior of the meat before the meat is ground. The swabs then are combined and tested for the presence of feces in the sample. If that sample is found to be contaminated, the meat is used for an alternative purpose such as animal feed. The lack of feces in the sample leads to an inference that E. coli is not present in quantities necessary to cause harm. [3]
The plaintiff will argue that testing after the animal is butchered, but before the meat is packaged, is “inaccurate” and only represents a single point in time. The inaccuracy argument is based on the fact that only 60 samples are taken from 60 areas selected, and there might be an area where fecal matter was located but not selected for sampling. [4] The plaintiff will also argue that the meat could have been contaminated later in time, such as when ground into hamburger. The negative test for fecal matter of the butcher, even if accurate, does not mean contamination did not occur later.
The grinder, in the authors’ views, is almost always the primary defendant. While claims can be made against the distributor and subsequent handlers of the meat product, such claims are more difficult. The product is packaged by the meat grinder and, once packaged, is not unpackaged until it reaches the restaurant, the distributors generally have indemnification agreements requiring the meat grinder to indemnify the distributor. Without such indemnification, the distributor arguably does not undertake distribution.
The Inference Battle
The plaintiff has the burden of showing that the food product ingested was contaminated. The plaintiff meets that burden by offering a treatment fecal test showing the presence of E. coli and the pattern of the PFGE test being identical to other individuals also infected with E. coli from the same source. The inference created thus has two parts:
- There “was contamination because I ate something contaminated”
- The source was a restaurant or a specific meat shipment ingested by others with the same contamination
This is the part where science and law come together. In most E. coli cases that are prosecuted, more than one infected party exists. Each of those parties during his or her treatment had a PFGE test, and that PFGE test is then compared with other individuals in that area who also became ill. Where the PFGE pattern is identical to a reasonable degree of scientific certainty, or medical certainty depending on the witness, an inference that each infected party ate from the same E. coli source exists. Post-ingestion PFGE testing of multiple parties with identical patterns helps minimize the possibility of coincidence and further identifies the source.
Each E. coli case is reported to the State Health Department where the E. coli occurred. The health department relates E. coli cases first in that state where the health department is located and then seeks E. coli cases in other states where shipments from the same meat supplier took place. Utilizing shipping records and working in cooperation with other health departments in other states, a map of E. coli incidents is determined, and shipment records are analyzed to determine commonality of suppliers.
The plaintiff generally meets their burden by proving he or she was diagnosed with a strain of E. coli while treated at the hospital. That strain of E. coli was identical to the strain of E. coli found through fecal testing in other parties. The health department, through analysis of lot shipping records, showed that meat supplier ABC provided meat to the restaurant in which each of the E. coli infected parties ate. The fact that the PFGE test pattern is identical may rule out a mere coincidence, leading to the inference that multiple parties eating from the same lot of meat shipped to each separate restaurant, acquired E. coli from ingestion from that lot of meat.
Rebutting plaintiff’s inference as set out in the last paragraph can be difficult. The witnesses are state health department employees, well-educated in the field of public health. Each health department employee further felt the risk was high and recall of the meat product necessary. Each compared PFGE patterns and concluded the same lot was the cause.
The bottom line is that the plaintiff may be able to meet his or her burden of proof where there are multiple infections and testing during treatment shows that the pathogen causing that infection is identical to a reasonable degree of scientific or medical certainty. While competent counsel can probe through cross-examination, raising the fact that they chose to eat the hamburger medium-rare or rare, such cross-examination does not go to the heart of the inference. The heart of the inference is the same food product, eaten by multiple people, contained an identical foreign substance.
Defenses Which Apply to the Butcher
The meat processor who butchers the meat, but does not grind, can argue that post-butcher testing shows the meat was not contaminated with E. coli during the butchering process. That claim is often strengthened by subsequent pre-grind testing by the grinder. The butcher can argue “I cut the meat, I tested it and packaged it. There was no fecal matter.” If the grinder ran the subsequent test before grinding, that further confirms no fecal matter contamination existed prior to grinding.
The butcher has the best defenses of all the suppliers. First, the butcher likely has a hazard plan in place required by the federal government. Second, the butcher must conduct post-butchering testing. Such testing must be rebutted by the plaintiff, grinder or another party further down the food processing chain. If the grinder conducted a pre-grind E. coli test, summary judgment by counsel for the butcher would be appropriate. [5]
The grinder can rebut by saying that the test is not all-inclusive. In a shipment of 8,000 pounds of meat, 60 separate samples still leaves a lot of meat that could be contaminated with feces. If the grinder makes such an argument, however, the grinder basically supports the plaintiff’s claim and further admits that he or she ground a contaminated lot of meat.
Defenses Which Apply to the Grinder
The grinder is left with generally two defenses. The first involves contamination by the restaurant preparing the food from another source. That defense is difficult, however, because the grinder also needs to show each affected individual ate the same contaminated product. Such proof is often not available because other patrons of the restaurant may have ordered the product well done. The second defense involves arguing that the menu warnings were insufficient and/or the restaurant should refuse to cook meat for a customer unless the customer orders it medium, medium-well or well done.
While not a defense, often the grinder will admit that the meat was contaminated and instead focus on damages. This admission strips plaintiff of all the medical evidence previously discussed, and limits the case to the issues of preparation and damages. Preparation is important where the plaintiff orders a medium-rare hamburger with a menu warning in place that warns all meat should be cooked to medium-well. The focus then is on the plaintiff’s actions. Such a defense further allows the preparer and the grinder to present a common defense, neither implicating the other. If the plaintiff sues the restaurant and grinder, and the grinder brings a third-party complaint against the butcher, the grinder has the burden of proof against the butcher. That burden of proof may prevent the grinder from prevailing against the butcher. Also, indemnity agreements among the distributor, the grinder and the butcher likely exist. These indemnity agreements, by contract, may alter the responsibility of the parties.
Conclusion
Food-borne illness cases, including E. coli cases, are factually intensive and depend on understanding the science. Ultimately, however, food-borne illness cases rest upon inferences and who has the burden of proof.
Cases involving a single exposure generally are difficult to pursue because plaintiff cannot prove, to a reasonable degree of scientific certainty, the origin of contamination. On the other hand, cases involving multiple parties are persuasive as to the origin of the contamination, but because of nominal injury, arguably may be too expensive to prepare. There are law firms, however, which specialize in representing multiple parties exposed to the same contaminate. Lastly, defendants often find it expedient to settle multiple party cases for nominal amounts rather than expending substantial legal and expert dollars defending a case where strict liability and thus joint and several liability apply.
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] Because the symptoms are consistent with other causes, this fecal sample may be taken several days after the ingestion.
[2] PFGE stands for Pulsed Field Gas Electrophoresis. This test identifies specific enzymes. The enzyme DNA then can be compared with fecal tests from other patients. Where a match occurs, there is also an inference that each matching party ate from the same contaminated source. The level of certainty can vary. If the match is exact, a two-enzyme test arguably reaches the required level of certainty. A PFGE test can match up to six enzymes.
[3] When meat is butchered, it has four irregular sides plus a top and bottom. When meat is ground, samples are randomly taken from sides, tops and bottoms.
[4] This defense argument is also why there is a wide-spread belief that steak is safer than ground beef. The four sides and top and bottom of a medium-well steak arguably reach 160 degrees, the temperature necessary to destroy E. coli. Ground beef, on the other hand, could have a contaminated source, previously on the outside surface, now, after grinding, inside. Such a contaminated surface may not reach 160 degrees because of its inside location.
[5] Keep in mind however, if you represent the butcher, the grinder likely is a significant customer of your client, the butcher.
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