Marler Clark, LLP PS

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Marler Clark, LLP PS

• Since 1993 Marler Clark has represented thousands
  of food illness victims in over 30 states.
  Settlements and Verdicts nearly 500,000,000
• We only bring forward a fraction of the victims
  who contact our offices.

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Civil Litigation A Tort How it Really Works

• Strict liability
• It is their fault Period!
• Negligence
• Did they act reasonably?
• Punitive damages
• Did they act with conscious disregardof a known
  safety risk?

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Strict Liability for Food a Bit(e) of History
a manufacturer of a food product under modern
conditions impliedly warrants his goods and that
warranty is available to all who may be damaged
by reason of its use in the legitimate channels
of trade Mazetti v. Armour Co., 75 Wash.
622 (1913)
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Who is a Manufacturer?

• A manufacturer is defined as a product seller
  who designs, produces, makes, fabricates,
  constructs, or remanufactures the relevant
  product or component part of a product before its
  sale to a user or consumer.

RCW 7.72.010(2) see also Washburn v. Beatt
Equipment Co., 120 Wn.2d 246 (1992)
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The Legal Standard Strict Liability

• The focus is on the product not the conduct
• They are liable if
• The product was unsafe
• The product caused the injury

STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO
FAULT.
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Why Strict Liability?

• Puts pressure on those (manufacturers) that most
  likely could correct the problem in the first
  place
• Puts the cost of settlements and verdicts
  directly onto those (manufacturers) that profit
  from the product
• Creates incentive not to let it happen again

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Litigation Can Work A History Lesson
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Odwalla
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Leafy Greens

• 21 E. coli outbreaks since 1995 with at least
  1,000 reported illnesses and 7 deaths
• Fresh or fresh-cut lettuce or spinach implicated
  as outbreak vehicle - 8 outbreaks traced back to
  produce from Salinas, California
• In 2006 alone, Dole Spinach, Taco Bell and Taco
  Johns - between 400 - 750 ill

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Leafy Greens, cont..

• Spinach - 25 lawsuits, 75 settlements thus far-
  damages will exceed Jack in the Box
• Lettuce - 13 lawsuits, 12 settlements thus far
• CEO testified under oath before Congress
• Cause - keeping animals away from growing
  vegetables
• Recent outbreak in Hawaii

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Imports - Hepatitis A

• Chi-Chis restaurant in Pennsylvania 660
  people sickened, 4 deaths, 100 hospitalized, 1
  liver transplant
• Bankruptcy
• Settlements - 50,000,000
• Green Onions imported and grow in conditions of
  squalor
• Important --- dont be too focused on imports

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Salmonella Chilis

• 8 months after outbreak, store closed for good
• The investigation revealed environmental
  factors such as loss of hot water, loss of all
  water, the large number of ill employees at the
  facility, a general lack of hand washing and
  dish-machine sanitizer failure contributed
  to/exacerbated the spread.

• 305 persons confirmed ill
• 9 hospitalized, and 179 sought medical care
• Restaurant closed for 11 days
• 28 employees tested positive for salmonella
• Depressed sales in region due to bad publicity

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Salmonella - Sheetz

• 450 sickened
• Tomatoes produced by Coronet - family business
  operating for 75 years
• Bankruptcy
• Millions in settlements
• Since 2004 three additional outbreaks
  sickening another 700

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Salmonella - Peter Pan

• Salmonella Tennessee 2007
• 714 culture positive
• Likely 40 time that number
• Plant had positive test in 2004
• 30 Class Actions, 100 other suits
• Cause - 75,000,000 jars produced yearly at
  Georgia Plant

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What is the Problem?

• Industrialization of our food supply?
• Technological Advances in Surveillance?
• Bugs are bigger, stronger, faster?

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How to Solve the Problem?

• Free Market?
• Regulation?
• Litigation?
• Criminalize?

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Free Market

• What made you ill?
• Does poisoning 1 or 1,000 customers cause you to
  lose market share?
• Can you buy - advertise your way out?
• Does it depend on the size of the company?

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Restaurant Hospitality Magazine July 2004

• We don't have to tell you that operating a
  restaurant is a risky proposition.  But if you
  want to ascertain just how sensationally risky it
  really is, connect to the Internet, swallow hard,
  and type www.marlerclark.com into your browser's
  address line.

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Regulation

• Does Big Brother have the answers?
• Are the standards correct?
• What Political Influences?

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Litigation

• Lawsuits would seem to provide important
  feedback to these firms about how much they
  should invest in food safety.
• However, much of the costs of illness borne
  by people who become ill are not reimbursed by
  food firms responsible for an illness.
• In short, the legal system provides limited
  incentives for firms to produce safe foods.

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Jack in the Box

• 1992 and 1993
• Nearly 600 people sickened in six States most
  children - 50 HUS 4 deaths
• Two Class Actions - Hundreds of Individual Suits
• Shareholders Litigation, Congressional
  Investigation
• Settlements in Excess of 100,000,000
• Cause - knowingly undercooking

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Odwalla

• 1998
• Over 70 people sickened 5 HUS, 1 death
• Multiple lawsuits
• Criminal Investigation and Plea
• Knowingly sold contaminated Apple Juice
• Settlements over 20,000,000
• Stock Price fell and they were purchased

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Criminalization

• Again, getting caught is an issue
• In 15 years only a handful of people have been
  fined and only two jailed
• Where is the incentive to produce safe food?

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What about Morality?

• The Golden Rule

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Questions?
Marler Clark LLP, PS 6600 Columbia Center 701
Fifth Avenue Seattle, Washington 98104
[phone] www.marlerclark.com