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From Field to Fork to Fairness: Maximizing Damages in a Food-Borne Illness Case

Eisenberg, Cutt, Kendell & Olson

According to the Center for Disease Control, 48 million Americans are poisoned by contaminated foods every year (www.cdc.gov). Of that number, 128,000 individuals are hospitalized and 3000 of them die. Id. With numbers like these, you would expect the Food Industry to be diligently searching for ways to detect and rid their products of potential contamination from well known pathogens such as E.coli 0157:H7; Salmonella; Botulism; Listeria and Campylobacter. These pathogens are deadly. Yet, in spite of the dangers associated with contaminated food products, as well as laws that hold food manufacturers strictly liable for contaminated food, few companies are motivated to change their manufacturing processes to ensure the purity of their products. Fewer still are willing to test their products for pathogens before releasing them to the public for consumption.

You may be asking yourselves why food manufacturers would adopt such a careless attitude. The answer lies in the ability of the manufacturers to get away with releasing contaminated food into the market without detection. Food manufacturers have, to a large extent, been able to dodge the liability bullet for years because the illnesses caused by tainted food are seldom traced back to the source of contamination. Accordingly, in comparison to the number of people who are poisoned by adulterated food products annually, there are relatively few formal “Outbreaks” declared and/or “Recalls” implemented by the Food Industry. This, of course, has nothing to do with the purity of the food products on the market and everything to do with poor epidemiology. As the Nation’s ability to trace-back the food-borne illnesses to the source of the contamination improves, the number of “Outbreaks” and “Recalls” will surely sky-rocket. Until then, the food industry is likely to maintain its cavalier approach to food safety and continue to count on being able to distribute potentially pathogen-laden food without having to take responsibility for the death and destruction such products leave in their wake.

Ugly facts such as these warrant ugly penalties. Thus it is that many food-borne illness cases beg for punitive punishment. Establishing entitlement to punitive damages in a food-borne illness case requires in-depth knowledge of each entity that is potentially responsible for the contamination of the food product, including the role each played in getting the food in question to the consumer’s table. It also requires a clear understanding of the growing, harvesting and manufacturing processes utilized, safeguards implemented, if any, and historical track-record of the specific manufacturer in particular and the industry in general. Collecting this information through the discovery process and independent research is critical to building a punitive damages case. A few of the most critical pieces of the evidentiary puzzle are discussed below.

1. BIG PICTURE ITEMS: PARTIES & CLAIMS

In the Food Industry, there is a term that is commonly used to describe the entire food-manufacturing process that is instructive here. The term is “From Field to Fork.” This term reminds us that the manufacturing of many foods begins with growing in the field and ends with the final product being delivered to and consumed by the customer. There are many steps along the way and many parties involved in the manufacturing process who may have responsibility for contaminating the food. Accordingly, the potential parties in a food-borne illness case can include the grower, the manufacturer, the product owner/distributor and the retailer at a minimum. In assessing who is responsible for the contamination of the food product at issue, none of these parties should be overlooked.

Oftentimes, a product may be owned and distributed by one company but manufactured by another. You will discover much of this information from the product label. Once you determine who grew the product, who manufactured it and who owns and/or distributed the product, you will need to find out what contracts exist between those various entities and what responsibilities each of those entities agreed to assume in the context of their contractual relationship and the manufacturing process.

Because food products are intended for human consumption, they must be pure and any contamination will automatically render them “defective” under the law of strict liability. Any contamination will also result in a breach of warranty claim, as food products are warranted to be fit for their intended purpose which is human consumption. There are many state and federal laws in place to ensure the purity of food products and to hold those responsible for contaminated food products strictly liable. (See, e.g. Utah Wholesome Food Act, Utah Code Annotated §§ 4-5-3(1)(a)-(b); California Health & Safety Code §§ 110620, 110625, 110630, 110760, 110765, 110770; Federal Food Drug and Cosmetic Act, 21 U.S.C. §§ 331(a)-©, (g); FDA Food Code §§ 3-101.11, 3-201.11, 3-202.15, 3-601.21; 21 CFR Part 110, §§ 110.35(d), 110.37(a), 110.40(a), 110.80, 110.80(a), 110.80(b); Utah Admin. Code (2007) R70-530-1, R70-530-2, R70-530-4-2).

In addition to the laws giving rise to defective product claims based upon strict liability, you can also assert negligence claims and claims for knowing and reckless indifference in the manufacturing of the product so as to make the award of punitive damages possible. When such claims are asserted, you will most certainly find that the Industry will gladly stipulate to strict liability for a contaminated (“defective”) product in order to render unnecessary any discussion or inquiry into how or why the product became contaminated and/or where fault lies for such contamination. In so doing, the Industry hopes to escape such scrutiny and avoid punitive punishment for its conduct. Claims concerning “negligent” or possible “knowing and reckless” conduct lay the foundation for a case of punitive damages and force the Food Industry to examine its own conduct and the safety of its food manufacturing processes. Ultimately, as more and more cases for punitive damages are made against the Food Industry, real change will begin to occur in the way food products are grown, harvested, processed and manufactured.

In establishing entitlement to punitive damages, you must be able to demonstrate on the part of the defendants (grower, manufacturer, owner/distributor, retailer) a knowing and reckless indifference toward and/or disregard for the safety of the consumer. Putting a case together that supports an award of punitive damages requires you to become an expert regarding the defendants’ processes, the defendants’ knowledge and the defendants’ history in processing the Product in question.

2. LEARN HOW THE PRODUCT WAS PROCESSED FROM FIELD TO FORK

In building a punitive damages case, you must begin by learning, in detail, the manner in which the product at issue is processed from “field to fork.” In other words, you will need to learn how, where and under what system the product is grown, harvested, processed and manufactured. You should visit the field where the product was grown and harvested as well as the facility where it was manufactured and take video footage of the entire process so the jury can see first hand the processes and conditions under which the product is manufactured. As the saying goes, a picture is worth a thousand words. So, too, is a compelling video that may depict unsanitary conditions, unsafe manufacturing practices and/or demonstrate the many opportunities for contamination that exist in the manufacturing processes utilized by the defendants whose contaminated product harmed your client.

3. HAZARD ANALYSIS AND CRITICAL CONTROL POINTS

In the Food Industry, those involved in the growing and manufacturing of food products must have a HACCP plan (pronounced “Hassep”). A HACCP Plan includes an identification of any hazards that may exist in the manufacturing of a safe and pure food product as well as the development of Critical Control Points to address the identified hazards. For example, in the case of bagged lettuce (or many other vegetable products cut fresh from the field), an identifiable hazard might include the contamination of the product with rodents, metal and other contaminants that may be present in the field during the harvesting process. Another identifiable hazard with respect to food products harvested from the field would include the product’s contamination with pathogens such as Ecoli 0157:H7 and Listeria, to name just two.

These pathogens are potentially deadly to humans. Ecoli 0157:H7 lives in the lining of the gut of cattle and is naturally found in beef. The pathogen is killed with cooking. However, fresh fruits and vegetables, particularly leafy greens, are most often eaten in their raw form and do not enjoy the purification that cooking provides. Any product grown in the vicinity of cattle is at risk for E.coli contamination. The E.coli travels from the gut of cattle to our food sources through many different vectors, including, cattle feces, water, flies, pigs and other small animals that traipse through the feces and then come into contact with the food products as they are grown in the fields. When the 2006 Dole baby-spinach outbreak occurred, the investigation conducted by the California Emergency Response Team revealed that the spinach at issue was actually grown on a cattle ranch in fields that were not fully fenced and that demonstrated evidence of wild pig and other rodent travel.

Thus, it is of paramount importance to obtain a copy of the defendants’ HACCP plan(s) in order to determine what hazards were identified and known to the defendants and whether or not, given the manner in which the product is processed and manufactured, all potential hazards were identified. Next, you will need to discover what, if anything, the defendants did to address the hazards they identified. A HACCP plan requires the implementation of Critical Control Points to address the identified hazards. Find out what Critical Control Points the defendants employed. Once you have identified the Critical Control Points utilized by the defendants, you must find out whether the defendants scientifically validated the CCPs. Critical Control Points must be scientifically validated in order to be effective. If they are not validated, there is no way to know whether or not the CCPs are effective in removing the identified hazard. Is there any evidence that the defendants scientifically validated their CCPs? Is there any evidence that the hazards identified by the defendants in their HACCP Plan are eliminated by the CCPs? The answers to these questions bear heavily on the issue of whether the defendants demonstrated knowing and reckless disregard for the safety of the consumer.

4. DID THE DEFENDANTS CONDUCT ANY RAW OR FINISHED PRODUCT TESTING?

Make certain that in conducting your discovery, you inquire as to all raw or finished product testing conducted by the defendants. Did the defendants conduct any such testing prior to releasing the product for human consumption? Why wouldn’t a manufacturer engage in such testing in order to ensure the purity of its food products and prevent contaminated product from sickening and possibly killing the consumer? Why indeed, and yet there are those manufacturers who do not conduct such testing. This is powerful information and will be critical to the inquiry of whether punitive damages should be awarded against the defendants.

5. DID THE DEFENDANTS HAVE NOTICE THAT THEIR PROCESSES WERE NOT WORKING?

If you discover that the defendants did conduct product testing, request copies of the test results. Did the results demonstrate that the defendants’ processes were failing to rid their product of contamination? Find out if the defendants have experienced any prior product recalls or outbreaks. If there were prior recalls, outbreaks or tests that revealed contaminated product, the defendants were on notice that their processes were not working and were, in fact, failing to produce a pure and safe food product. In the face of such Notice, if the defendants continued to process product in the same manner, they did so with knowing and reckless disregard for the safety of the consumer.

6. DID THE DEFENDANTS TAKE ANY ACTION UPON RECEIVING NOTICE THAT THEIR PROCESSES WERE NOT WORKING?

In most food-borne illness cases, you will find that the defendants in your case have experienced prior recalls and/or outbreaks as a result of the contamination of their products. It will be important for you to know the details of these prior outbreaks and recalls, the circumstances of each, and particularly, what measures were taken by the defendants, if any, following each of the outbreaks. Did they change their growing, harvesting, processing or manufacturing processes in any way? Did they accept any responsibility for the contamination that resulted in the prior recall/outbreak? Did they conduct any type of investigation into the cause for the contamination? Again, the answers to these questions will help you establish whether punitive damages should be awarded.

In closing, I would like to urge those of you who come across a food-borne illness case damages to stay the course. Do not be intimidated by the large food companies and the manpower they can throw at you when you file a case. They will certainly go to great lengths to try to persuade you to drop your punitive damages claim. They do not want the public to know how or why their product became contaminated. They will file motions for summary judgment seeking to throw out your negligence and knowing and reckless conduct claims. They will argue that such claims are moot in light of their willingness to stipulate to strict liability for a defective product. They may send in what they consider to be a big gun attorney from a prestigious national law firm to try to impress the judge into killing your punitive damages case. They will certainly try to get your food safety expert thrown out of court. They may even seek the assistance of the 10th Circuit with a Writ of Mandamus. Desperate circumstances lead to desperate measures. When and if you find yourself in the belly of this beast, remember that the defendants are terrified of the power you wield in the form of the knowledge you have gained about their manufacturing processes. They will try desperately to keep that knowledge from seeing the light of day. Stay the course and perhaps you will find that a measure of justice can be meted out to those who scoff at safety in order to line their pockets.

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