Minimizing Your Liability Risk and Foodborne Illness Lawsuits

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Minimizing Your Liability Risk and Foodborne
Illness Lawsuits
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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 typewww.marlerclark.com into your browser's
  address line.

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Meat Poultry Magazine July 2003 Hammer Time

• Bill Marler has heard all the excuses 
• Its not fair. 
• People are just suing over a tummy ache. 
• We shouldnt be blamed.
• Although somebody got sick, we did everything
  right.
• Why can you sue me?

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To Put Things in Perspective

• According to the CDC, microbial pathogens in food
  cause an estimated 76 million cases of human
  illness annually in the United States
• 325,000 hospitalized
• Cause up to 5,000 deaths

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Marler Clark, LLP PS

• Since 1993 Marler Clark has represented thousands
  of food illness victims in every State.
• Settlements and Verdicts - nearly 300,000,000
• We only bring forward a fraction of the victims
  who contact our offices. Some examples of your
  missed opportunities

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Christening the Carpet

• I opened a box of Buffalo wings and dumped them
  out on a plate to be cooked in the microwave.  An
  unusually shaped piece caught my eye and I picked
  it up.  When I saw that the piece had a beak, I
  got sick to my stomach. My lunch and diet coke
  came up and I managed to christen my carpet,
  bedding and clothing. I want them to at least
  pay for cleaning my carpet, etc.

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But, it cuts both ways - Enter the FBI
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Strict Product Liability or, all I ever learned
in Law School

• Strict Liability
• Are you a manufacturer?
• Was the product unsafe?
• Did product cause injury?
• Negligence
• Are you a product seller?
• Did you act reasonably?

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Its called STRICT Liability for a reason

• The only defense is prevention
• It does not matter if you took all reasonable
  precautions
• If you manufacture a product that makes someone
  sick you are going to pay
• Wishful thinking does not help

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Why Strict Liability? Is it Unfair?

• It puts pressure on those (manufacturers) that
  most likely could correct the problem in the
  first place
• It puts the cost of settlements and verdicts
  directly on to those (manufacturers) that profit
  from the product

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Incentives Litigation Can Work A Little
History Lesson

• Jack in the Box
• Odwalla

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June-July, 2003 Salmonella javiana outbreak at a
major-chain (Chilis) Restaurant

• 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
• 8 months after outbreak, store closed for good

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Health Department Report
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 handwashing and dish-machine
sanitizer failure contributed to/exacerbated
the spread of salmonella javiana.
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Chi-Chis Hepatitis-A Outbreak
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Chi-Chis Hepatitis-A Outbreak
The ice water in the bucket became,
essentially, "hepatitis soup," said Dr. Michael
Osterholm, an epidemiologist at the University of
Minnesota who has investigated many hepatitis
outbreaks. Government Makes It Official
Blame Scallions for Outbreak, by Denise Grady,
NEW YORK TIMES, November 22, 2003
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Planning AGAINST Litigation What Is Really
Important

• Identify Hazards
• - HACCP
• - Do you have qualified and committed people?
• Insurance (have lots!)
• Involve Vendors
• Do they really have a plan?
• Ever visit them?
• Indemnity Agreements
• Additional Insured

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Planning AGAINST Litigation Establish
Relationships

• They are your best friends!

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What Will a Jury Think?
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Questions?
William D. Marler 6600 Columbia Center 701 Fifth
Avenue Seattle, Washington 98104 1-800-884-9840 bm
arler_at_marlerclark.com