Tampa, Fla. (June 1, 2020) - Recent highly publicized outbreaks of foodborne illness have lead to an upsurge in foodborne illness lawsuits through the United States. The Foodborne Disease Active Surveillance Network of the CDC estimates that foodborne diseases cause approximately 76 million illnesses, 325,000 hospitalizations, and 5,000 deaths in the United States each year. Foodborne illnesses account for approximately 1% of all hospitalizations and one out of every 500 deaths in the United States. These statistics have created a renewed trend in plaintiff litigation to attempt to recover damages in cases ranging from large-scale contaminations to single instances of a claimant suffering from food poisoning.

High-profile outbreaks of foodborne illnesses most commonly involve salmonella and other pathogens such as E. coli and Listeria. Foodborne illness is defined as an infection or irritation of the gastrointestinal (GI) tract caused by food or beverages that contain harmful bacteria, parasites, viruses, or chemicals. Food contamination resulting from microbial pathogens in the form of bacteria, parasites, fungi, and other biotoxins can occur at any step from farm to form, and the origin is often difficult to identify. More than 250 pathogens, including bacteria, viruses, fungi, and biotoxins are known to cause food borne illnesses. Currently, there are 31 pathogens know to cause foodborne illness that are actively tracked by public health systems.

Foodborne illnesses typically result in unpleasant GI symptoms that resolve without medical intervention. However, more serious cases can result in complications including organ failure and untimely death. Despite the severity of injury, the litigation that is often initiated after a food borne illness is rarely inexpensive, and even minor cases can result in exposure and litigation costs.

Elements of a Foodborne Illness Claim

Foodborne illness litigation generally involves breach of warranty or implied warranty, negligence, and/or strict products liability claims.

Negligence

Under general negligence principles, a business has a duty to exercise reasonable care. In the restaurant context, "reasonable care" means that the restaurant has a duty to maintain a safe environment, produce safe products (i.e. meals), and eliminate unreasonable dangers. For a manufacturer, the implied duty is to sell vendors food products that are safe for human consumption and are properly labeled to reflect any specific instructions to prevent contamination. Even if causation is established, a plaintiff must prove actual harm or injury. Simply becoming sick will satisfy this requirement, however, the degree and duration of sickness will determine the appropriate damages, if any.

Strict Products Liability

Strict products liability relieves a plaintiff of the responsibility of having to prove that the distributor, supplier, or manufacturer was not careful in the making or distribution of the product, thereby resulting in the contaminated food product responsible for illness. In a strict products liability case, a plaintiff must only prove that the food consumed was contaminated, and that it led to illness. Strict products liability for food contamination cases in not available in every state; however, several of the states with the greatest number of foodborne illness cases, including Florida, do permit strict products liability to be invoked.

Breach of Warranty

Under commercial laws, many states have implied warranties for the fitness of products in the stream of commerce. Food suppliers and distributors must meet minimum standards for making, storing, and preparing their products. This is known as an "implied warranty." See Blanton v. Cudahy Packing Company, 154 Fla. 872, 19 So.2d 313 (1944). Selling or serving contaminated food to the general public may be considered a breach of such a warranty.

There is generally an implied warranty that a product will conform to an ordinary buyer's expectations and follow minimal quality specifications. Where contaminated food causes food poisoning, the injured consumer can claim that the food did not conform to the ordinary buyer's expectation of non-contaminated food. Similar to strict products liability, an implied warranty will often follow the food through the chain of distribution unless it is expressly restricted or voided by contract.

Burden of Proof in a Foodborne Illness Case

For a plaintiff to successfully prosecute a products liability suit arising from an alleged exposure to a food contaminant, they must establish a causal connection between the ingestion of contaminated food and the illness claimed. See Lohse v. Coffey, 32 A.2d 258, 261 (D.C. 1943), see also Thacker v. Kroger Co., 155 Fed. Appx. 946, 947 (8th Cir. 2005). A human specimen (a stool or blood sample) that matches what is found in the food product at issue is the most optimal proof. While specimen testing can be difficult to dispute, it is fairly uncommon. More often, the symptoms of foodborne illness are self-evident, and medical professionals will not submit samples to be tested. In those instances, plaintiffs will attempt to use circumstantial evidence and/or testimony of a treating provider to prove causation by showing that the symptoms correlate to typical symptoms of foodborne illness. See Heller v. Schwan's Sales Enter., 548 N.W.2d 287, 290 (Minn. Ct. App. 1996). Those symptoms commonly include fever, abdominal cramps, headache, and diarrhea. Without biologic testing, a plaintiff's burden of proof becomes significantly higher as these types of common and nonspecific symptoms can be attributed to multiple causes or pre-existing illness.

Without undisputed biologic testing showing a specific pathogen, plaintiffs should face a difficult task of tying the specific product to the claimed injures by reliable evidence. The time that elapses between ingesting a pathogen and the appearance of first symptoms is called the incubation period. Known foodborne pathogens have well-recognized incubation and duration periods. The incubation period of different pathogens ranges from a few hours to several weeks. It is important to reference a known pathogen's incubation period, as it may act as a defense if the time of consumption of the alleged product does not reflect the proper incubation period. If the time between exposure and onset of symptoms is inconsistent with the incubation period of pathogen, or if the duration of the illness is inconsistent with what would be expected from the particular pathogen, then the pathogen likely did not cause the illness. If the onset of a plaintiff's symptoms do not correlate to the specific known incubation period of the pathogen, a plaintiff will be unable to prove that the food product at issue proximately caused the foodborne illness. An incubation defense is often the most successful in defeating claims where biologic sample testing was not taken at the time of illness.

Different foodborne pathogens also spread and manifest illness in different ways. The preparation or storage of a food product can cause contamination. In instances where a defendant is responsible for production or packing of the product, contamination can be caused by the storage or preparation of the product. If scientific evidence does not point to contamination at the time the product leaves the control of a manufacture, a defendant can challenge causation with expert testimony that the organism is spread from person to person, and is a result of the food preparation and sanitation of the facility where the product was distributed to the plaintiff. If the defendant is a restaurant, grocery, or food preparation facility, a defense is improved where handling, preparation, and sanitation procedures can be demonstrated.

Conclusion

Foodborne illness litigation is unlikely to decrease in the near future, but a proactive and scientifically-focused approach in addressing these claims can improve the changes for a successful defense. It is increasingly common for plaintiff law firms to have teams or departments dedicated to foodborne illness litigation. A proactive corporate strategy paired with the assistance of defense counsel who are well-versed in the science and available defenses to food borne illness claims can be winning combination to systematically defend and dispute these claims.

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