Issue: July 2012
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Foodborne Illness: When Grabbing a Bite Can Be Deadly

Introduction

Foodborne Illness Impact and Liability

According to estimates from the Centers for Disease Control and Prevention, each year approximately 1 in 6 Americans (or 48 million people) becomes ill, 128,000 are hospitalized, and 3,000 die of foodborne diseases. The most deadly pathogen in 2011 was salmonella, which resulted in an estimated 378 deaths.

 

Recent foodborne illness outbreaks include: a salmonella outbreak affecting a total of 390 persons in 27 states and the District of Columbia, resulting in 47 hospitalizations, with illness onset dates ranging from January 1, 2012 to June 3, 2012; and an outbreak of listeria that affected a total of 146 persons in 28 states, resulting in 30 reported deaths. Litigation for these and other food poisoning situations is on the rise as concern for our food safety is in the news.

 

BONUS: Because the liability of the “food company” (including the food grower or manufacturer, importer, distributor, and retailer) is key in this litigation, the perspective of the food company has been discussed in addition to the perspectives of the attorney, physician, insurer, and employer.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to recover on a claim of foodborne illness?

Physicians:

How can liability for medical malpractice be avoided for a claim involving the diagnosis and treatment of a foodborne illness?

Insurers:

Can a payout under a food company’s liability insurance policy for a foodborne illness claim be avoided by proof that the plaintiff’s illness was not foodborne or that the company’s food product was not contaminated with a foodborne pathogen? Alternatively, can the insurer rely on policy provisions to limit recovery under the policy?

Employers:

Can an employer be subject to liability for an employee’s foodborne illness? And, what is a potential strategy for the employer to use?

Bonus:

How can a food company avoid liability for a foodborne illness? And, what is a potential strategy for the company to use?


Practice the Technique: Checklists

Attorneys:

Counsel must develop a list of facts and circumstances, specific to the client’s fact situation, which demonstrates proof of foodborne illness.

Physicians:

Physicians must consider this litigation checklist when defending an alleged medical malpractice or negligence claim arising from an injury related to a foodborne illness.

Insurers:

When investigating a claim of foodborne illness against a restaurant or a similar food retailer, the insurer should carefully evaluate the actions of the restaurant and its employees. The insurer for the restaurant should look for the following “red flags” and consider how they impact the insurance coverage and the liability for payouts.

Employers:

A checklist for employers to determine if the employee’s foodborne illness is “work related” and occurred “in the course of the employment,” and therefore is compensable.

Bonus:

Food companies will be concerned with whether their product was responsible for a foodborne illness. The food company should present proof that the plaintiff’s illness was not caused by a foodborne pathogen, or, alternatively, that the foodborne pathogen was not present in its product. The food company may also present proof that the plaintiff did not suffer serious lasting damages.

Expert Analysis

What Are the Key Steps in Litigating a Foodborne Illness Claim?

William Marler, JD

What Are Some of the Challenges Involved in Defending Foodborne Illness Cases?

Sarah L. Brew, JD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

Reasons why the attorney, physician, insurer, food company, or employer would want to reach settlement, and not take the foodborne illness action to trial.


Reasons to Go to Trial

Reasons why the attorney, physician, insurer, food company, or employer would want to take the foodborne illness action to trial.


Jury Awards and Settlements

How much have juries awarded recently in foodborne illness cases?



Medical Examples

Medical: Foodborne Illness

This section provides detailed medical information on foodborne illness, commonly referred to as “food poisoning,” the sources, illnesses, onset and symptoms, diagnosis, treatment, and discusses the prognosis and ability to work.



Law and Medicine Resources

References

A listing of law and medical references for further information on food borne illness caused by pathogens.


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Foodborne Illness: When Grabbing a Bite Can Be Deadly

Table of Contents
Introduction

Expert Analysis
   William Marler, JD
   Sarah L. Brew, JD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers
   Bonus

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Bonus: Food Company Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Medical: Foodborne Illness

References