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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Black Forest Salmonella Outbreak

The facts of this most unfortunate incident are well known to you, your client, your insured, and the people who became ill. It was covered well by the local media. However, the report issued by the Macomb County Health Department on May 1, 2002 sets forth the facts as a jury will hear them.
Of note, the illnesses were “associated with the consumption of cannolis and cassata cake from Black Forest Cakes and Pastries.”
Laboratory investigation showed that 46 stool cultures tested positive for Salmonella enteritidis as did 4 leftover food samples. Six culture isolates (4 stool specimens and 2 food samples) were sent to the Centers for Disease Control and Prevention (CDC) for phange typing. All 6 isolates were identified as Salmonella enteritidis phange type 8. This was significant because it convincingly shows that the source of the illnesses was the bakery products and that the illness has a common source.
According to the report, during the early spring of this year “an outbreak of Salmonella enteritidis infections resulted in 196 reported ill persons, 24 of which required hospitalization.”

The report concluded that Black Forest Cakes and Pastries were the source of the Salmonella enteritidis outbreak. Specifically, the report states that the epidemiologic analysis established a statistically significant association between illness and the consumption of cannolis, cassata cake or both. How the bacteria were introduced into the bakery could not be determined. “Once introduced, improper sanitation, food storage and preparation practices were the most likely causes for the dissemination of the bacteria in the facility and the subsequent outbreak of illnesses.” (See, May 1, 2002 Report of the Macomb County Health Department, Exhibit 1.)
The “Environmental Assessment” published by the Michigan Department of Agriculture documented serious concerns about Black Forest’s sanitation practices. In part, it was found that these “practices were insufficient to prevent cross contamination once the Salmonella enteritidis was introduced into the facility. Specific practices that could have perpetuated cross contamination included:
Lack of sanitizing of equipment, utensils, and food contact surfaces,
Drying surfaces and utensils with shared towels, and
Inadequate emphasis on frequent and effective hand washing.”
The assessment also found fault in Black Forest’s ability to properly cool the cannoli filling as a way to reduce bacterial growth. (See, May 1, 2002 Environmental Assessment of the Michigan Department of Agriculture, Exhibit 2.)
It has been my experience in outbreak litigation that juries invariably believe the unbiased reports of the state health investigators. Here the report paints a bleak picture of Black Forest’s practices as being the cause of so many unnecessary illnesses. Indeed, it is such a bleak picture that the plaintiff will be able to base its case solely on the report; confident the report will, by itself, inflame the jury, and result in a sizeable verdict.