My law practice lives and breathes the science of foodborne illness epidemiology. Stool cultures, incubation periods, case control studies and genetic fingerprinting make or break causation in cases. I have a nurse and an epidemiologist on staff who investigate each case, so we know that the claims that we make are well-grounded in both science and the law. As I tell my opponents, by the time we make a claim, causation and liability are a lock, and the issue to discuss is how much are the damages.
It is with frustration that I encounter lawyers and insurance companies across the table that are ignorant (willfully or by honest stupidity) of the law and the science. Here are a few instances, one from the distance past and one from last week.
“Your clients are suspected by the ‘FBI’.”
In late June of 2002, residents of Monroe County, New York began to fall ill with Salmonella infections. As their illnesses were confirmed by laboratory testing, hospitals and doctors began reporting the illnesses to the Monroe County Health Department. By June 22, the total number of confirmed cases had reached 17. According to the Health Department, the Salmonella cases were linked to multiple events at the Brook-Lea Country Club (“Brook-Lea”) between June 1 and June 17. In response to the outbreak, the Monroe County Health Department inspected the Brook-Lea kitchen and reviewed its food-handling procedures. In addition, the kitchen was closed and disinfected by a commercial company. While the kitchen remained closed, the Health Department stated that it would review the possibility of allowing the club to have limited outside catering.
By June 24, the number of cases of salmonellosis linked to the Brook-Lea had risen from 17 to 53. These were just the confirmed cases. There were dozens of other cases still waiting culture confirmation. The Health Department had by this point in its investigation obtained stool and blood samples from about 50 kitchen-related staff. The club kitchen also remained closed. Two days later, on June 26, the results of tests done on kitchen-staff stool samples showed that eight of the about 50 kitchen staff had Salmonella infections. According to the Health Department, it was unknown whether the staff represented the likely source of the outbreak, or whether they “might just be victims”. An additional food worker at Brook-Lea was later found to also be infected, bringing the total number of sick employees to nine.
Over the next three weeks the number of Salmonella cases linked to Brook-Lea soared from 57 to well over 100. At least 95 of the cases were both culture-confirmed and linked epidemiologically to the consumption of food at Brook-Lea between June 1 and June 18. It was also determined that the Salmonella associated with the outbreak was Salmonella enteritidis, a virulent strain often associated with contaminated eggs.
In early July, Brook-Lea management admitted that none of its employees had attended a six-hour voluntary course on safe food handling. The Health Department first offered the food safety course in 1997 and it was available to all foodservice operators and their employees. It was only after the Salmonella outbreak that about 30 Brook-Lea employees received training in safe food-handling practices.
Proving that lightning can strike in the same place twice, on July 30, there was a second, smaller outbreak of Salmonella illnesses at Brook-Lea, yielding six more cases. Four of the cases were Brook-Lea employees. Overall, there were now 106 confirmed cases of Salmonella food poisoning in people residing in Monroe County and the surrounding area. All these cases were linked to the Brook-Lea.
We represented most of the victims in this outbreak, some quite seriously sick. As is my practice, I supplied all the health department records, medical records, wage loss and all other relevant material to both prove causation and assess damages.
A few months after providing all the evidence above, we met with the lawyer and insurance adjuster for Brook-Lea. Waiting in the conference room for them to arrive, the thought was how best to financially resolve the cases. As the lawyer and insurance adjuster came in, they seemed a bit glum. I took it that they might be reluctant to pay what would be needed to resolve the cases – goodness, was I mistaken.
After some stilted pleasantries, the lawyer said with authority that there we be no settlements to the smile of the insurance adjuster. Perplexed, I ask “why?” He gleefully pushed a piece of paper from the Monroe County Health Department (we had provided to them) across the table and told me, “we will not pay a penny to these people because they are suspected by the ‘FBI’.”
It was a short meeting. A month later with a new defense lawyer and insurance adjuster involved, who understood that “Suspected FBI” meant “Suspected Foodborne Illness,” all the cases resolved to the satisfaction of my clients.
“Your client is a plumber.”
In the fall of 2021, the Centers for Disease Control and Prevention (CDC), U.S. Food and Drug Administration (FDA), and state partners investigated an outbreak of Salmonella Oranienburg linked to whole, fresh onions. FDA identified ProSource Produce LLC (or ProSource Inc.) of Hailey, Idaho and Keeler Family Farms and Imported of Deming, New Mexico as suppliers of potentially contaminated whole, fresh onions imported from the State of Chihuahua, Mexico between July 1, 2021 and August 31, 2021.
As of January 20, 2022, a total of 1,040 cases have been identified. Cases were identified in 39 states (AL, AR, CA, CO, CT, FL, GA, HI, IA, IL, IN, KS, KY, LA, MA, MD, MI, MN, MO, MS, NC, ND, NE, NJ, NM, NY, OH, OK, OR, PA, SC, SD, TN, TX, UT, VA, WA, WI, WV), the District of Columbia, and Puerto Rico. Of the 778 cases with information available, 260 reported hospitalizations. No deaths were reported. Illness onsets ranged from May 31, 2021 to January 1, 2022. Cases ranged from less than 1 year to 101 years in age (median 38). Fifty-eight percent of cases were female.
Whole-genome sequencing (WGS) of 1,012 clinical isolates showed that bacteria from sick people’s samples were closely related genetically, implying that the cases in the outbreak likely got sick from the same source. During interviews with 407 cases, 72 percent of cases reported eating or maybe eating raw onions or dishes with raw onions prior to illness. Several ill people reported the same restaurants, indicating possible clusters. Twenty illness clusters were identified at restaurants where onions were served. One of these clusters occurred at a location at which the outbreak strain of Salmonella Oranienburg was identified in a condiment container with leftover lime and cilantro. It was reported that this container also contained onions, although none were left for testing. Traceback information identified onions distributed by ProSource Produce LLC and Keeler Family Farms as links in this outbreak.
On October 20, 2021, ProSource Produce LLC voluntarily recalled whole, raw, red, yellow, and white onion imported from the State of Chihuahua, Mexico between July 1, 2021 and August 31, 2021. Additional onion types possibly implicated in this recall included jumbo, colossal, medium, summer, and sweet onions. The following distributors/retail brands were included in the recall: Big Bull, Peak Fresh Produce, Sierra Madre, Markon First Crop, Markon Essentials, Rio Bue, ProSource, Rio Valley, and Sysco Imperial.
On October 22, 2021, Keeler Family Farms recalled red, yellow, and white whole, fresh onions imported from the State of Chihuahua, Mexico between July 1, 2021 and August 25, 2021. Onions were distributed to wholesalers, restaurants, and retail stores in all 50 states and the District of Columbia. These onions contain a labeled marked as “MVP (product of MX).”
Recalls were also initiated by companies that sold products containing the recalled onions (Pier-C Produce Inc., Potandon Produce, LLC, HelloFresh, and EveryPlate). The FDA published lists of retailers that received recalled products from ProSource Produce LLC and Keeler Family Farms on October 29 and November 2, respectively. These lists may not include all retail establishments that would have received recalled product, however. The FDA also published a list of additional companies that may have received recalled product from ProSource Produce LLC and/or Keeler Family Farms and further processed the onions by using them as ingredients in new products or repackaging them. As of February 2022, this outbreak is over.
We represent Andrew Rose, and yes, he is a plumber.
The causal link between Andrew Rose’s confirmed Salmonella Oranienburg infection and the food that he consumed from August 20, 2021, in Oklahoma is clear. On August 20, Andrew consumed fajita chicken enchiladas and fresh salsa from the Los Cabos restaurant located at 300 Riverwalk Terrace, Suite #100, Jenks, OK 74037. The Riverwalk Los Cabos location received onions from Frontier Produce in Tulsa, OK. Frontier Produce provided Los Cabos with multiple shipments of onions—including jumbo red and jumbo yellow—in the weeks leading up to August 20, 2021. Frontier Produce received multiple shipments of recalled onions sourced by ProSource on July 29, 2021, and August 11, 2021.
Andrew had no other viable onion exposures in the week leading up to the onset of his Salmonella Oranienburg infection. He consumed a buffalo chicken sandwich from Arby’s on August 19, 2021 that did not contain onions and ate at two separate Whataburger locations; one on August 17, 2021, and one on August 19, 2021. Whataburger provided an affidavit stating that they did not receive onions from Prosource or Keeler Family Farms. Additionally, Andrew does not cook onions at home. Andrew was not in contact with anyone ill prior to his illness.
Andrew began to experience symptoms consistent with Salmonella infection on August 22, 2021. An exposure on August 23 is consistent with a Salmonella incubation period that can range from 6 hours to 14 days and averages 12 to 72 hours. A stool specimen collected on September 1 tested positive for Salmonella at the Regional Medical Lab in Tulsa, Oklahoma.
Further testing by the Minnesota Public Health Laboratory, on behalf of the Oklahoma Department of Health, determined that Andrew was infected with Salmonella Oranienburg and that his specimen was genetically linked to the multistate raw onions’ outbreak of 2021 (WGS ID: PNUSAS233169). The Oklahoma Department of Health interviewed Andrew with an outbreak questionnaire pertaining to the national onions outbreak (CDC Outbreak ID: 2109MLJJX-1) and included him in an outbreak titled “S. Oranienburg, National, 2021.” Andrew’s specimen was included by the CDC on the 2021 raw onions outbreak linelist (CDC Cluster Code: 2109MLJJX- 1).
Given Andrew’s confirmed infection with Salmonella Oranienburg, his symptom onset within an evidence-driven Salmonella incubation period and during the national Salmonella Oranienburg onions outbreak, his exposure to an implicated source of the outbreak, and the genetic evidence connecting his infection to the outbreak, Andrew was classified as a confirmed case in the national Salmonella Oranienburg onions outbreak by the Oklahoma Department of Health and the CDC (CDC Outbreak ID: 2109MLJJX-1).
Like in the Brooke-Lea case, we supplied everything the counsel and insurance company for the onion supply chain – medical and health department records as well as CDC, FDA and Oklahoma records. And yes, we supplied his wage loss, and yes, he is a plumber.
After waiting a few month for onion fellows to review the material, I finally was contacted that the insurance adjuster wanted to talk. As this was a clear case of causation and liability, I expected that we would be able to resolve the case for Andrew. However, the adjuster gave me the unexpected. He carefully explained to me that the cause of Andrew’s illness was not the onions, but because my client “was a plumber.” Perplexed (to put it mildly), I tried to explain that he was a WGS match to over 1,000 people with Salmonella Oranienburg and that Andrew ate onions that we part of the recall. My explanation gained no traction.
I even tried to explain that even if Andrew did not eat onions (which he did), the onion suppliers were still liable, because even if Andrew picked up the WGS of Salmonella Oranienburg because he was a plumber, he still picked up the WGS of Salmonella Oranienburg from someone who ate the onion, and that the onion supplier was still the proximate cause of Andrew’s illness.
Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Proximate cause consists of two elements–cause in fact (but for cause) and legal causation (legal policy). Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). Cause in fact is based on a “physical connection between an act and an injury” and is determined by the trier of fact. Id.; Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). Cause in fact requires a direct unbroken sequence between some act and the complained of event. Hertog, 138 Wn.2d at 282-83. This is generally a question for the jury. Legal cause, on the other hand, “reflects policy determinations as to how far the consequences of a defendant’s acts should extend.” Schooley, 134 Wn.2d at 478; Hartley, 103 Wn.2d at 779. Legal cause is a question of law. Schooley, 134 Wn.2d at 478.
In Almquist v. Finley Sch. Dist. No. 53, 114 Wn. App. 395 (2002), students eating a taco lunch in the Finley School District were infected by E. coli O157:H7. Marler Clark LLP represented the plaintiffs and tried the case to a successful verdict. On appeal by the District, the argument was advanced that the most severely injured child, Faith Maxwell, who did not consume the taco meal but had contact with two unrelated children who had, could not demonstrate that the District’s actions were the proximate cause of her injuries.
The Court addressed both components of the proximate cause inquiry. Regarding cause-in-fact, the Court held, in sum, that the plaintiffs had presented sufficient evidence for a jury to conclude that Faith was sickened by E. coli O157:H7 as part of the same outbreak that had sickened the other children. The Court concluded:
Secondary cases are not uncommon, generally making up 1 to 10 percent of the total cases in any outbreak. RP at 623-24. Secondary infection generally results from person-to-person contact, most often via the fecal-oral route. RP at 88, 201-02, 245, 248.
To conclude that this is how Faith was infected is more than mere speculation. Faith spent time with two children who ate the taco meal. One had a confirmed case of E. coli infection. An infected child spent the night at Faith’s house and played with her, including dressing her up like a baby.
These facts are consistent with the experts’ description of the typical secondary infection. And the District offered no plausible alternative explanation for her illness. The jury then had adequate evidence from which to infer that Faith’s illness was caused in fact by the tainted taco meal.
Almquist, 114 Wn. App. At 407.
I told the onion fellows the “I will see them in court.” We need to teach more science to lawyers and insurance companies.