Given the law in most jurisdictions and the practical considerations of convincing a jury otherwise, it is very difficult to protect a company from being held liable once a link has been established between a person’s illness and a specific food product. The issue then becomes how much each case is worth. Most cases settle because companies are justifiably afraid of the negative publicity of a trial, win or lose.
The value of the cases, the defendants’ collective desire to settle if at all possible and the probability of success in the unlikely event that the case does go to trial all contribute to making these cases very attractive for plaintiffs’ counsel. The adage “an ounce of prevention is worth a pound of cure” is certainly apt here.
The good news is that the best way to mitigate substantial losses when facing such claims is also the best way to prevent them in the first place: Have a robust food safety plan, which must include documentation of the plan and efforts to implement and follow it. (In many cases, outbreaks follow systemic breakdowns of multiple aspects of a food safety plan.)
The food safety plan must go far beyond making sure food preparation surfaces are clean and sanitized. It is critical that a business have someone on staff (or consult with someone) who is knowledgeable about modern food safety practices to help develop that plan.
Many processors and retailers are required by federal law to establish and follow a Hazard Analysis and Critical Control Point (HACCP) plan to mitigate the risk of foodborne illness. Those businesses that are not required to do so should consider adopting similar plans because it is the standard of care for food providers to understand the hazards in their processes and how best to control them.
In addition to HACCP, changes to the federal Food, Drug and Cosmetic Act, referred to as the Food Safety Modernization Act (FSMA), 21 U.S.C. § 301, et seq., were enacted in 2011 in response to numerous outbreaks. This newer law places additional requirements on all entities in the food chain, from growers/processors to retailers. Chief among them is a requirement that entities be able to trace food products one step up and one step down the food chain.
For example, a leafy-greens processor must be able to show where a specific lot of spinach was acquired and to whom it was sold once processed. Product tracing is often complicated, and other FSMA requirements are sometimes less than straightforward, making consultation with a trained expert necessary.
A couple of notes on the food safety plan. First, it is not “set it and forget it.” Many companies have food safety plans that were adequate and appropriate when implemented but became obsolete in the face of new threats, as equipment became antiquated or other challenges emerged that could not be taken into account originally. Periodic review of the food safety plan is advised to prevent costly gaps and lapses.
Second, it is important to “say what you do, then do what you say.” Each food safety plan needs to be tailored to the specific entities’ processes – the “say what you do” part. Once the plan is written, it must be followed – the “do what you say” part. Having a written food safety plan goes a long way toward mitigating risk and litigation damages. Not having a plan – or perhaps worse, having a plan that is not followed – will provide opposing counsel with a roadmap to demonstrate deficiencies and then plenty of evidence to prove those deficiencies.
Every situation is different, but in the unfortunate event that a company is involved in a food poisoning case, early retention of knowledgeable defense counsel is critical. If your insurer insists on appointing its chosen counsel, demand in writing that it provides counsel knowledgeable of foodborne illness issues and the attendant regulations.
A certain class of plaintiffs’ counsel uses the discovery process tactically to set up arguments for adverse inferences -- where the jury is instructed to presume a defendant failed to preserve evidence because it would be harmful to the defense -- and sanctions in response to oppressive demands for discovery during litigation. As a result, evidence preservation has become exceptionally important. Early retention of counsel will help in this regard.
Experienced defense counsel will also be able to communicate with investigators, advise on retaining PR firms and their potential impact and understand the pitfalls of certain actions. Typical litigation rules may not apply in a foodborne illness case, and inexperienced counsel may not be aware of this. For example, work performed at a lawyer’s instruction is usually protected work product that need not be disclosed to the people suing the company. But environmental samples in a processing facility, which could implicate the client’s products, may be discoverable in the context of a foodborne illness outbreak investigation.
Regardless, it is critical that every food poisoning claim be taken seriously immediately to provide the best possible outcome.
Joshua Swiger is a partner at Weinberg, Wheeler, Hudgins, Gunn & Dial in Atlanta, which has served as counsel for the defendants in almost every legal action regarding major national foodborne illness outbreaks in the past 20 years. Josh represents clients in product liability, contract, and other litigated matters and has defended and counseled clients in several mass tort events. He has a degree and experience in chemical engineering that gives him a significant advantage in analyzing and defending complex, technical claims.
