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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The Perishable Pundit, Jim Prevor, is not as smart as I thought

Last week when Jim went after Marion Nestle and Denis Stearns, I suggested that it best to ignore his ranting.  However, In reading Jim Prevor’s recent posting (“No Matter What Growers, Shippers, or Retailers Do About Food Safety, ‘You Will Be Sued,” posted on June 11, 2010), I knew that I had to respond, but—really, where to begin?

Jim obviously believes he knows a lot of about the “legal system” that he so eagerly bashes, and he implies he knows a lot about concepts such as “strict liability” and “negligence” too. But I think Jim is too busy sticking up for the produce industry (as others do for their industry of interest), and ignoring its sorry safety track record over the last fifteen years, to offer an informed critique of the product liability system in the United States. (And, don’t get me wrong, there’s lots worthy of criticism). So let me point out two places where Jim is seriously misinformed.

First, despite Jim’s assertion to the contrary, strict liability is not the same thing as absolute liability. With absolute liability, manufacturers act as insurers of the safety of their products, and proof of product-related injury is all that is required to obtain compensation. Now, believe you me, there is no shortage of scholars and judges who have argued over the years in favor of a system of absolute liability. But, on the whole, courts and legislatures have been unanimous in rejecting absolute liability. As a result, a person who claims a product-related injury must not only prove the fact of the injury, but the person must also prove that: (1) the product was defective; and (2) the defect in the product caused the injury. And while Jim seems to enjoy pretending that proving these two things is easy, it is not. He also ignores the fact that, in the vast majority of cases, proving a product is defective is nearly identical to proving negligence. In other words, when a bag of romaine lettuce is contaminated with E. coli O157:H7—a result that the manufacturer obviously did not intend, and planned to avoid—the fact of that contamination proves that the manufacturing process fell short of what was intended. And, lo and behold the falling short is…wait for it…negligence. All that strict liability does is free the injured person from the need to prove exactly how the contamination came to be—that is, to demonstrate the exact set of events that caused the defect to come into being. As such, proof of the defect acts as a proxy for proof of negligence.

Second, Jim likes to describe the often horrific injuries that people suffer as a result of defective products “collateral damage.” I am guessing that if it was someone in his family who died or was permanently injured, he would be less sanguine about this, and certainly less proud of coining such a term. The fact of the matter is that strict liability evolved in the United States precisely because the collective wisdom of judges AND legislatures decided that consumers should not have to pay the price when companies like Ford “elect to value economy”—as Jim so coldly put it. Companies do not try to create “value” by cutting corners on safety; they try to create PROFITS. And that is not the same thing. How many people do you think would have bought a Ford Pinto if they had been warned in advance that getting rear-ended would cause the car to explode into a life-ending fireball? Not many, me thinks.

In the end, Jim’s position is that the produce industry should be free from liability because it tries just so darn hard. Well, as far as I’m concerned, the produce industry is not trying hard enough until people are no longer killed and injured as a result of eating its unsafe and defective products.  And, if they are unwilling to do that, then they should be sued.

Note – If he really wants to become knowledgeable about these subjects, maybe he should think of auditing Product Liability Law (Tort 300), one of the courses that my law partner, Denis Stearns, teaches as a professor at Seattle University School of Law. But I’m guessing Jim will take a pass on that.

  • alani stroomer

    What did Mr Prevor have to say in response to this entry?