Listeria Lawsuit

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Following the declaration of the Listeria outbreak in December 2017, a multi-sectoral outbreak response was initiated. Findings were shared by the Minister of Health, Dr. Aaron Motsoaledi at a public media briefing on 4 March 2018 (statement available at www.nicd.ac.za), and are summarized below. In addition, the National Department of Health requested a full recall of implicated processed meat products.  According to Dr. Aaron Motsoaledi:

In our constant search for the source of the outbreak and the treatment of people who are affected, a team from the NICD has interviewed 109 ill people to obtain details about foods they had eaten in the month before falling ill. Ninety-three (85%) people reported eating ready-to-eat (RTE) processed meat products, of which polony was the most common followed by viennas/sausages and then other ‘cold meats’.

On Friday 12th January, nine children under the age of 5 years presented to Chris Hani Baragwanath Hospital with febrile gastro-enteritis. The paediatrician suspected foodborne disease, including listeriosis, as a possible cause. The environmental health practitioners (EHPs) were informed and on the same day visited the crèche, and obtained samples from two unrelated polony brands (manufactured by Enterprise and Rainbow Chicken Limited (RCL) respectively) and submitted these to the laboratory for testing.

Listeria monocytogenes was isolated from stool collected from one of the ill children, and from both of the polony specimens collected from the crèche. These isolates were sent to the NICD Centre for Enteric Diseases, and underwent whole genome sequencing and genomic analysis. The ST6 sequence type was confirmed on all three isolates on Saturday 27th January. Remember that in the last press conference I informed you that from clinical isolates obtained from patients (patient blood), 9 sequence types of Listeria monocytogenes were isolated and 91% were of sequence type 6 (ST6). We had then concluded that time that this outbreak is driven by ST6.

Following the lead from the tests performed on these children from Soweto and the food they had ingested, the EHPs (Environmental Health Practitioners), together with the NICD and DAFF representatives, accompanied by 3 technical advisors from the World Health Organisation in Geneva, visited a food- production site in Polokwane and conducted an extensive food product and environmental sampling.

Listeria monocytogenes was isolated from over 30% of the environmental samples collected from this site, which happens to be the Enterprise factory in Polokwane.

To conclude the investigation, whole genome sequencing analysis was performed from this Enterprise factory and the results became available midnight or last night. The outbreak strain, ST6, was confirmed in at least 16 environmental samples collected from this Enterprise facility. 

THE CONCLUSION FROM THIS IS THAT THE SOURCE OF THE PRESENT OUTBREAK CAN BE CONFIRMED TO BE THE ENTERPRISE FOOD-PRODUCTION FACILITY IN POLOKWANE

According to the Centre for Enteric Diseases (CED) and Division of Public Health Surveillance and Response, Outbreak Response Unit (ORU), National Institute for Communicable Diseases (NICD)/ National Health Laboratory Service (NHLS) the current number of ill and deceased are as follows:

As of 26 July 2018, 1060 laboratory-confirmed listeriosis cases have been reported to NICD from all provinces since 01 January 2017.

To date, 749 cases were reported in 2017, and 311 cases in 2018. Females account for 56% (549/979) cases where gender is reported. Neonates ≤28 days of age are the most affected age group, followed by adults aged 15 – 49 years of age. Most cases have been reported from Gauteng Province (58%, 614/1060) followed by Western Cape (13%, 136/1060) and KwaZulu-Natal (8%, 83/1060) provinces. Final outcome data is available for 76% (806/1060) of cases, of which 27% (216/806) died.

Black First Land First, which laid murder charges against the corporations at the Hillbrow Police Station, said heads had to roll.

Leader of Black First Land First Andile Mngxitama (BLF) believes the listeriosis outbreak that has claimed as many as 180 lives amid about 1,000 confirmed infections can be categorized as “murder”.

He tweeted on Monday morning that his organization would lay murder charges against Tiger Brands, Enterprise Foods and Rainbow Chicken, which he says has links to business magnate Johann Rupert.

He claims Enterprise was complicit in a corporate cover-up and should be treated as party to murder. He described their alleged actions as “premeditated murder for profits”.

Sounds somewhat familiar?

 

South Africa’s biggest consumer foods maker, Tiger Brands, has recalled products produced by its Enterprise unit after the government traced the source of a listeria outbreak that has killed almost 180 people and sickened nearly 1,000 to its Enterprise manufacturing facility. Tiger Brands said it has suspended operations at both Enterprise manufacturing facilities in Polokwane and Germiston.

South Africa’s laws governing products liability closely parallel those found in many US jurisdictions. While the country has long-recognized that a manufacturer of unfit food can be held civilly liable in negligence, legislation introduced almost decade ago codified strict products liability principles applicable to every entity in a product’s supply chain. Further, South Africa also holds entities in a supply chain criminally liable for making contaminated or unfit food available to consumers.

Prior to enacting legislation in the early 2000’s, South African manufacturers of food could be held civilly liable under principles similar to those common in US tort law. Specifically, claimants alleging injury caused by unfit food could demonstrate that an entity was negligent in its manufacture of the product. The Muzik v. Cansone Del Mare case is a well-known example of a food-poisoning litigation where the court found in favor of a victim claiming a restaurant’s negligent preparation and service of seafood caused his serious injuries. The restaurant, Cansone Del Mare, served Muzik contaminated mussels which made him severely ill and led to his hospitalization. He subsequently sued the restaurant, and was awarded damages including his medical bills, lost wages, and loss of enjoyment of life because his fear of being poisoned again prevented him from enjoying a previously-loved food.

A few years after Muzik, South Africa provided foodborne illness claimants a powerful avenue of recovery when it enacted the Consumer Protection Act No. 68 of 2006 (CPA). Section 61 of the CPA establishes broad strict liability principles, specifically holding everyone in the supply chain of a product—manufacturers, importers, distributors, and retailers—liable for any harm their product causes, irrespective of whether or not they behaved negligently. The elements of strict products liability in South Africa is near-identical to the burden in the US: a claimant need only prove that their injury or illness was caused by (1) the supply of an unsafe product, (2) a product failure, defect, or hazard in the product, or (3) inadequate instructions or warnings. 61(1)(a)—(c).[1]

If a claimant prevails in demonstrating her burden, the responsible parties are held jointly and severally liable for, “the death of, or injury to, any natural person; an illness of any natural person…and any economic loss that results from,” that death, injury, or illness. 61(5)(a)—(d). While initially appearing to be broad-sweeping legislation, Section 61 may also limit the liability of so-called “passive retailers”—entities who merely obtain pre-prepared food to sell to consumers. The relevant language bars liability if, “it is unreasonable to expect the distributor or retailer to have discovered that the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers.” 61(4)(c).

Finally, despite its many similarities to US product liability laws, South Africa also holds entities criminally liable for making contaminated or unfit food available to the public. The Food, Cosmetics and Disinfectants Act 54 of 1972 makes it a criminal offense for any person to, “sell[], manufacture[] or import for sale, any foodstuff which is contaminated, impure or decayed, or is, in terms of any regulation deemed to be harmful or injurious to human health.” (2)(1)(b)(i). If the criminal offense is committed by an employee of a food service establishment, such liability attaches to the employer unless he can demonstrate that he took all reasonable measures to prevent the act or omission that led to the offense. (8)(1).[2]

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[1]           Section 53 of the CPA defines a “defect” as, “(i) any material imperfection in the manufacture of the goods or components, or in performance of the services, that renders the goods or results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or (ii) any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances.”

[2]           Simply forbidding the particular act or omission is insufficient to avoid liability. (8)(2).