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.
 |
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.
|
