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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The Science and Law of Tracking Foodborne Illness – Part 2

The Legal Process:  Tools used in evaluating claims of foodborne illness

It is predictable that some people are inclined to issue claims of dubious legitimacy, or that are simply fraudulent. In our work as litigators, we see no shortage of bogus claims.   There are claims that food looked or “smelled funny,” claims of finding foreign objects in one’s food, and other non injury-causing events that we see and dismiss virtually every day.

In our experience, food industry corporations over-emphasize, and thus overreact, to such claims, essentially responding in the same manner to legitimate and illegitimate complaints.  But denying legitimate claims increases the likelihood of failure to enact important measures to improve food safety. Not improving food safety increases the risk of poisoning consumers and resulting litigation. Litigation not only carries its own expenses, but the threat of public relations headaches as well. The industry should understand some of the reliable methods for recognizing suspect food poisoning claims.

Incubation Period

Take, for example, incubation period – the time between ingestion of a foodborne pathogen and the onset of symptoms.  These well-established periods are stated as ranges, not precise periods of time, but they still can be used to identify an improper claim. The claimant who insists that her E. coli O157:H7 illness was sparked by the hamburger she ate an hour before she got sick does not have a winnable case regardless of the damages because the incubation period of E. coli O157:H7 is one to ten days, typically two to five days.
   
Incubation Periods of Common Foodborne Pathogens:

Staphylococcus aureus – 1 to 8 hours, typically 2 to 4 hours
Campylobacter – 2 to 7 days, typically 3 to 5 days
E. coli O157:H7 – 1 to 10 days, typically 2 to 5 days
Salmonella – 6 to 72 hours, typically 18-36 hours
Shigella – 2 hours to 7 days, typically 1-3 days
Hepatitis A – 15 to 50 days, typically 25-30 days
Listeria – 3 to 70 days, typically 21 days
Norovirus – 24 to 72 hours, typically 36 hours

In most situations, bacteria will be undetectable by the consumer, which is an intrinsic risk to consumers in the first place. Therefore, customers who believe they were sickened because food tasted odd are usually wrong, but many consumers with legitimate complaints tend to retroactively assign a negative connotation to a meal once the health department has identified it as a source of an outbreak. This common response doesn’t necessarily eliminate a claim.