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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The Science and Law of Tracking Foodborne Illness – Part 3

Health agency investigation

Although statutes and regulations vary from state to state, there are a number of bacterial and viral illnesses associated with food consumption that are monitored by health departments, including E. coli O157:H7, Campylobacter, Salmonella, Shigella, Listeria, Norovirus, and hepatitis A. For most of these pathogens, a positive lab result from a human sample (blood or stool), triggers a mandatory report to the local health authority and some type of follow-up investigation. The length, breadth, and paperwork involved in any investigation varies depending on the pathogen involved, the type of food, the number of persons who may be sick, the local jurisdiction, and other factors.

In the litigation of thousands of food poisoning claims arising out of dozens of outbreaks, food producers frequently take issue with some or all of the health department’s conclusions regarding a given outbreak. In our experience, none of these defendants has successfully avoided liability where the health department has linked a specific product to a specific outbreak. One likely reason for this is that most health departments do good and careful work. Despite the occasional disagreement of the pinpointed member of the food service industry, most would agree that health departments are rather cautious and conservative. In our experience, health departments do not lightly or prematurely label an entity as the source of an outbreak.

In addition, health departments operate with a much higher burden of proof than the civil justice system. Most epidemiologists will not confirm an outbreak without 95 percent confidence in a particular conclusion – a much more difficult threshold than a lawyer faces in convincing a jury.

Finally, it has also been our experience that the jury is simply more likely to accept the “neutral” determinations of a government health department over paid experts. One excellent example arose out of an E. coli outbreak in Washington State in 1998. State and local health officials who investigated the case concluded that the source of the outbreak was a ground beef meal prepared and served at an elementary school. Eleven children were identified as either “confirmed” or “probable” victims of the outbreak. All except one of them attended the school. Four of the children developed hemolytic uremic syndrome (HUS), which resulted in varying degrees of permanent kidney damage.

Interestingly, the child with the most severe injuries was the one who did not attend the school and did not eat the implicated meal. The child’s older sister, however, did attend the school and had eaten the meal. It was our position that this non-student had been infected via exposure to her sister or another student, a phenomenon known as “secondary infection.” The school district took issue with nearly every aspect of the case and, in doing so, attacked the health department’s conclusions. The defendant even contended that the tacos were not the source of the outbreak, that the non-student had not been infected with the bacteria. The jury, however, believed the health department investigation, and issued a multi-million dollar award to the injured children.

Health departments insist on virtual certainty before they declare an outbreak, or pinpoint a restaurant as the “confirmed” source. Without 95 percent confidence in a particular conclusion, health departments are likely to define individuals or outbreaks as “possible.” This is the case even where the confidence in a particular conclusion is well above the legal standard. This works both ways; if health authorities investigate and find a claimant’s illness did not come from a particular source, the plaintiff faces the same uphill battle.