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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The Science and Law of Tracking Foodborne Illness – Part 4

Health agency inspections and documentation

One extraordinarily effective tool in establishing the defectiveness of a product that no longer exists is uncovering documentation of the food service establishment’s track record from previous health inspections.  This may include information regarding prior incidents or accusations of food contamination and prior inspections of the facility and the establishment’s food production and service procedures.  Supportive documents can be acquired through the discovery process or through the applicable Freedom of Information Act.  Such documents will help the plaintiff make his case in a variety of ways. Sometimes, there may be documentation of improper food handling procedures that can circumstantially support one’s case.  In other situations, a list of improper techniques and code violations can serve as a tool for limiting a defendant’s trial options, or it can position a case for early and favorable settlement. Finally, particularly egregious or repetitive examples of improper food handling techniques can help build a case for punitive damages,  where such damages are available.

Documentation of improper or inadequate cooking procedures can help make a case for food poisoning.  In 2001, a young girl suffered a particularly severe E. coli O157:H7 infection that left her with permanent kidney damage. She had eaten a hamburger purchased from a California fast-food chain.  By the time health department officials investigated, however, the case of meat from which the girl’s hamburger had been chosen was long gone. The health department did not find any food on site that tested positive for E. coli O157:H7.   But a thorough review of the restaurant’s current and prior inspections revealed a serious flaw in the firm’s cooking method that provided an explanation for the client’s exposure. According to the inspection report:

“Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splash onto a nearby bun.”

In fact, the restaurant had been advised at least six times of the dangers of cross contamination of the buns by hamburger juices. The matter settled shortly after the presentation of this information.

In a 2002 case, a Chinese restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak. Again, no contaminated leftover food was found. In addition, the restaurant was buffet-style, which complicated the identification of a single contaminated food item. A disproportionate number of ill patrons were children, and it began to appear that the culprit food might in fact be Jell-O. Obtaining the health department investigation report provided the answer to the obvious question:  How would Jell-O become the source of an E. coli outbreak?   A previous inspection report identified a host of food handling errors, including “raw meat stored above the Jell-O in the refrigerator.”  Officials concluded that “the likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator.”  Once that report was obtained, the restaurant never seriously contested liability.

Another example:  In 2003, a group of people who had attended a banquet hosted by a restaurant in Washington State fell ill several days later. Many of them tested positive for Salmonella, but leftover food had either been discarded or had tested negative.  Nonetheless, the health department’s subsequent investigation provided the information necessary to establish liability. The restaurant had violated state regulations by “pooling” dozens, if not hundreds, of raw eggs in a single bucket for storage overnight. This process allowed bacterial contamination from a single egg to taint exponentially larger amounts of food, thereby placing many more consumers at risk. The establishment used the raw, pooled, eggs as a “wash” on a specialty dessert. Then, once again in violation of food code, food workers failed to cook the eggs thoroughly.

Improper sanitation is a frequent problem.  In 2000, a producer and distributor of high-end fresh food items were identified as the source of a large Shigella outbreak on the West Coast. The relatively new firm marketed itself as a high-end food business, but health inspections revealed serious problems, including the lack of fully operational bathrooms for employees, insects near food production sites, and evidence of rodents in the facility. We also learned that a major commercial purchaser of the firm’s product had conducted its own inspection, and had refused to purchase any more products until a number of significant upgrades were made to the facility.

In a 2002 case, a Seattle-area restaurant was suspected as the source of a medium-sized outbreak of food poisoning. Even though one of the patrons experienced an unusually severe illness, authorities were unable to pinpoint the particular pathogen. The defendant and its insurer were initially unwilling to concede liability, but previous inspection reports revealed a consistent pattern of poor food handling practices. The repeat occurrences of numerous health code violations led the health department to close the restaurant and temporarily revoke its license. In the end, the restaurant decided not to contest liability.

Documented histories can go a long way toward supporting a claim for punitive damages. In 1996, Odwalla, a well-known California producer of fresh juices, was identified as the source of a major outbreak of E. coli O157:H7 infections on the West Coast. Through the discovery process,  we sought documentation of inspections by governmental agencies, Odwalla itself, and private parties.  After many legal delays, we uncovered previously undisclosed inspection reports, including a report from the United States Department of the Army, revealing that the U.S. Army had inspected Odwalla’s production methods prior to the outbreak and determined not to buy its products. In a letter to Odwalla, Army officials stated:

“We reviewed deficiencies noted in the report, which our inspector discussed with you at the time of the inspection. As a result, we determined that your plant sanitation program does not adequately assure product wholesomeness for military consumers. This lack of assurance prevents approval of your establishment as a source of supply for the Armed Forces at this time.”   

Through further discovery, we obtained internal company emails reacting to the Army’s inspection. One Odwalla employee had suggested a microbiological testing program to address some of the problems uncovered in the inspection. The following is a portion of an email responding to the suggestion:

“…why are we doing it, why now, what do we WANT TO PROVE…IF THE DATA is bad, what do we do about it. Once you create a body of data, it is subpoenable.”

At the time of the E. coli outbreak, the company had not adopted the suggested testing regimen. We filed a motion to apply California law regarding punitive damages due to Odwalla’s prior knowledge that its product was unsafe. With the punitive damages motion pending, we obtained a multi-million dollar settlement for the families of children who sustained permanent kidney damage after developing HUS.