The Legal Standard: Strict Liability
 The focus is on
the product;
not the conduct
 They are liable if:
Strict Liability Is Liability
Without Regard To Fault.
–
The product
was unsafe
–
The product
caused the injury
Who is a Manufacturer?
A “manufacturer” is defined
as a “product seller who
designs, produces, makes,
fabricates, constructs,
or remanufactures the
relevant product or
component part of a
product before its sale to
a user or consumer….”
RCW 7.72.010(2); see also
Washburn v. Beatt Equipment
Co., 120 Wn.2d 246 (1992)
It’s called STRICT Liability for a Reason

The only defense
is prevention

Wishful thinking
does not help

If they manufacture
a product that
causes someone
to be sick they are
going to pay IF
they get caught
Negligence
The legal standard applied to non-manufacturers
The reason for excluding
non-manufacturing retailers
from strict liability is to
distinguish between those
who have actual control over
the product and those who
act as mere conduits in the
chain of distribution.
See Butello v. S.A. Woods-Yates
Am. Mach. Co., 72 Wn. App. 397,
404 (1993).
Causation – Science
“Causation is an essential concept
in epidemiology, yet there is no
single, clearly articulated definition ….”
J Epidemiol Community Health
2001Dec;55(12):905-12;
Parascandola M, Weed DL.
Confidence Interval (CI) –
Range within which 95% of times
the true value of the estimated
association lies (95% CI)
Causation – The Law
“A proximate cause of an
injury is a cause which, in
natural and continuous
sequence, produces the injury,
and without which the injury
would not have [likely]
occurred. The concept of
proximate causation has given
courts and commentators
consummate difficulty and has
in truth defied precise
definition.”
Prosser, Torts, pp. 311-313
Lettuce and Spinach
 Over 23 E. coli
outbreaks since 1995
– Hundreds of reported
illnesses
– Several deaths
 Fresh or fresh-cut
lettuce or spinach
 9 outbreaks traced
back to produce from
Salinas, California
2006 Wendy’s E. coli Outbreak
 Utah - June 2006
 E. coli O21:H19 –
only 3 culturepositive cases,
although over 50
cases probable
 3 HUS, 2 adult
women,1 with 30
days, the other with
4 months of dialysis
 Likely lettuce from
California
Dole and Natural Selections – Fall 2006
 205 persons infected
with outbreak strain
of E. coli O157:H7
from 26 states.
 102 (51%)
hospitalized
 31 (16%) developed
hemolytic-uremic
syndrome (HUS)
 Three confirmed
deaths – likely five
Dole and Natural Selections – Fall 2006
 E. coli O157:H7
– Isolated from 16
packages of DOLE
spinach
– “DNA fingerprints”
of all 16 match the
outbreak strain
– Supplied by patients
living in 10 states
– Eleven packages with
lot codes consistent
with a single
manufacturing facility
on a particular day
Taco E. coli Litigation Status

Multiple lawsuits
filed in Courts
in a 5 States

Taco Bell and
Ready-Pac

Taco John’s
and Bix

Lettuce
supplier to Bix Outbreak PFGE
found on
nearby Farm
Aunt Mid’s E. coli Lettuce

At Least 40
cases in Illinois,
Michigan, Ohio
and Canada

Traceback
looking at
Salinas,
Michigan,
and California
Central Valley
2006-07 Peanut Butter Salmonella Outbreak
 CDC Figures as of
March 7, 2007
 714 culture-positive
illnesses from 44
states
 71 hospitalized
 Illnesses reported
August 1, 2006 to
present – perhaps
earlier
Salmonella Tennessee
AC Voetsch, “FoodNet estimate of the burden of illness caused by nontyphoidal Salmonella
infections in the United States,”Clinical Infectious Diseases 2004;38 (Suppl 3):S127-34
S. Tennessee Cases By Month
2005-2007
29,640 ill Persons
CDC Baseline
CDC Outbreak Data
Estimated Unreported Cases
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CDC Baseline Approximately 50 per year
CDC Outbreak Date - 714 officially counted, however 13 additional cases in
2006 and 30 additional cases in 2005 share the same
PFGE as one of the outbreak patterns
CDC Estimate 38.6 multiple of reported cases of S. Tennessee
The Outbreak
Epidemic Curve of Confirmed Salmonella Tennessee Cases
Month/Year of Onset
CDC Data
Client Data
October 2004
Positive Sample
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Pot Pies

272 isolates of Salmonella
I 4,[5],12:i:- with an
indistinguishable genetic
fingerprint have been
collected from ill persons
in 35 states. To date, three
of these patients’ pot pies
have yielded Salmonella
I4,[5],12:i:- isolates with
a genetic fingerprint
indistinguishable from
the outbreak pattern
Outbreaks Linked To Unpasteurized Milk
Related Issues

Comparative fault

Releases and Waivers

Public Education

Where is Public
Health?
Hamburger – It’s Back

In 2007 and 2008 26 recalls, ground
beef companies
have recalled more
than 44 million
pounds of E. coli
O157:H7contaminated meat
Emerging Pathogens

E. coli O111 linked to
over 300 illnesses and
one death in Oklahoma

Appear linked to buffetstyle restaurant and at
least one catered event

E. coli O111 is NOT
listed as an adulterant
under the Federal Meat
Inspection Act

Keeping up with the
bugs – how do we do it?
Marler Goes International

Melamine in Milk

At Least 55,000
Illnesses

At Least 14,000
Hospitalized

At Least 1,000 with
Acute Kidney Failure

At Least
4 Deaths
How to Put Me Out of Business
1. Improve surveillance
and reporting of bacterial
and viral diseases.
2. Require real training
and certification of food
handlers at restaurants
and grocery stores.
3. Stiffen license
requirements for large
farm, retail, and
wholesale food outlets.
4. Increase food
inspections.
How to Put Me Out of Business
5. Reorganize federal, state, and
local food safety agencies to
increase cooperation and reduce
wasteful overlap and conflicts.
6. Establish tax credits for companies
with good food safety records, and
greater legal consequences for
sickening or killing customers with
tainted food.
7. Use our technology to make food
more traceable.
8. Promote university research.
9. Improve consumer understanding
of the risks of food-borne illness.
Questions