Food Poisoning: What We’re Not Thankful For

By Anastasia Markie, Esq.

Thanksgiving marks the beginning of the holiday season, and the centerpiece of the celebration is the elaborate holiday meal. Whether you’re celebrating at home or dining out, you don’t expect a side of salmonella with your turkey trimmings. Although food contamination is a danger all year round, many studies actually show that people are particularly vulnerable to contracting food-borne illnesses during the holiday season. Potential viruses and bacteria known to cause food poisoning include: Salmonella, E. coli, Hepatitis, Botulism, Norovirus, Listeria, and Shigella. According to federal estimates, there are over 70 million national cases of food poisoning every year, half a million of these cases result in actual hospitalization while 6,000 result in death every year.

A company facing a food contamination lawsuit may benefit if they follow certain defensive strategies, which include: (1) conducting an internal investigation to get to the root of the problem; (2) collecting evidence to defend the company’s practices; (3) retaining an array of experts; and (4) outlining a causation defense argument by understanding the science and the facts as they pertain to the injured plaintiff(s). Although the first four strategies are important, often times, plaintiff’s counsel experience difficulties in proving causation. This, of course, is good news for defense counsel.

In proving causation, plaintiffs must prove a causal connection between the ingestion of the allegedly contaminated food and plaintiff’s illness. (See Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003, 136 Cal.Rptr. 915 (1977)). However, more often than not, human specimens are not collected, requiring plaintiffs to rely on an inference of causation. For the next thirty years, the Minder court made it more difficult for plaintiffs to prove causation. Specifically, the court in Minder held that plaintiffs may not prove a food poisoning case by an inference that the food caused the particular illness.

Unfortunately for food contamination defendants, three decades later, a California Court of Appeal in Sarti v. Salt Creek Ltd. re-examined the reasoning behind Minder and held it was erroneous and no longer good law. ( Sarti v. Salt Creek Ltd. (2008) 168 Cal.App.4 th 833b). The Sarti court ruled that food poisoning defendants should not be granted a special, protected status with a “heightened” standard of causation. Instead, food contamination cases should be governed traditional tort principles of causation, which would permit a finding of causation based on reasonable inference. No court reasoned as eloquently as a D.C. court in Lohse v. Coffey when it said, “Only the most litigious plaintiff would have had presence of mind, in the throes of intermittent attacks of vomiting and diarrhea to arrange for laboratory tests and chemical analyses of his vomitus and excreta to be brought into court to prove his case. A man can hardly be expected to prepare a lawsuit while writhing on an ambulance stretcher or hospital bed.” (See Lohse v. Coffey, 32 A.2d 258, 261 (D.C. 1943)).

However, multiple courts have found that when there is evidence of more than onepossible food source for the alleged illness, plaintiffs fail to meet their burden with regard to causation. In Thacker v. Kroger Co. , for example, the court held that plaintiffs had failed to prove causation, because the consumed beef at issue was never tested for E. coli , and there was evidence that plaintiff had also eaten hamburgers at a county fair prior to eating the beef at issue. (See Thacker v. Kroger Co. 155 Fed. Appx. 946, 949 (8 th Cir. 2005). Positively identifying alternative food sources may be difficult. However, obtaining a detailed history of foods that the plaintiff ate around the time he or she allegedly consumed the tainted food may facilitate in challenging plaintiff’s causation argument.

However prevalent food contamination is and however difficult it may be to litigate food contamination claims, it is far more difficult to resist the delectable delights of the Thanksgiving feast. Help keep everyone safe this Thanksgiving and still enjoy the festivities by incorporating these tips from the federal government for a disease-free turkey:

1.      Cut the turkey off the bone and refrigerate it within two hours of the bird coming out of the oven;

2.      If you know you don’t think you’ll eat the leftover turkey within four days, divide it into meal-sized portions, pack them into freezer bags or airtight containers and freeze them;
3.      Frozen leftover turkey is safe, but after four months it can dry out or lose flavor;
4.      When re-heating cooked foods, use a food thermometer to make sure they have been heated to an internal temperature of 165° F.
 Bradley & Gmelich LLP wishes each of you a Happy Thanksgiving!

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