FOCUS ON FOODBORNE ILLNESS
By Mike H. Bassett, Haley L. DeVault and Bryan A. Green
Meeting the Challenges
of Foodborne Illness
Liability Claims
Between April and July of 2008 alone,
over 1,300 people fell ill with Salmonella
Saintpaul, a bacterial strain that in-
fected people in 43 states.1 As is often
the case with foodborne illnesses like
Salmonella infections, the actual culprit
is difficult to pin down. Studies on these infections are believed to
have narrowed the cause down to tomatoes, jalapeños, serrano
peppers and/or cilantro. Much of the difficulty in identifying the
source of the infections is that these foods are often served and
consumed together.
Food Poisoning in General
Such a predicament is nothing out of the ordinary when dealing with food poisoning. In fact, the multi-state Salmonella Saintpaul outbreak is a great example of
the types of challenges that lawyers, adjusters, food providers and claimants all face
when dealing with claims arising from foodborne illnesses. By definition, foodborne illnesses involve the consumption of contaminated food or beverages. Although rarely fatal, foodborne illnesses may produce multiple sudden symptoms.
In the case of the Salmonella Saintpaul outbreak, the ongoing investigation by the
Department of Health and Human Services (HHS) is a difficult and complicated
challenge.1 Not only do victims of the illness have difficulty remembering which
foods they ate, when they ate them and in what combination, but many of the
foods the victims ate are no longer available for testing. As a result, tracing the
source of contamination responsible for a foodborne illness outbreak can be an
onerous and complex process.
Foodborne illness outbreaks are usually recognized when several people experience a similar illness after ingesting a common food, and epidemiological (
laboratory or clinical) data implicate the common food as the source of the illness. This
means a diagnosis of any type of foodborne illness generally requires more
than one individual becoming sick. As a
result of this rigid definition, far fewer
incidents of food poisoning are reported
than may actually occur.
Despite the infrequency with which
food poisoning is confirmed, foodborne
illness is a diagnosable condition if the
proper tests are conducted. The difficulty in diagnosing a foodborne illness
lies in the fact that food poisoning, by
its very nature, is a transitory condition.
Also, except in rare circumstances, no
specific treatment is available for a suspected foodborne illness. Oftentimes,
by the time people think to go to a doctor or hospital, the illness will have run
its course.
The same issues complicating the
HHS’ investigation of Salmonella
Saintpaul are faced by parties to litigation
stemming from a foodborne illness.
Whether on the side of the plaintiff or
the defense, these issues must be addressed in order to properly handle the
case. Knowing when and what to do is a
critical part of being prepared for when
a foodborne-illness case arises. Preparation is critical for handling these types
of cases, as time likely will be of the
essence. Part of having a foundation for
properly responding to a foodborne illness claim is understanding the current
status of the law. With the shadow of
the Salmonella Saintpaul outbreak still
looming and over one-third of the cases
occurring in Texas, now certainly seems
like a good time to review the development and current status of Texas law surrounding claims and liability arising
from foodborne illness and the closely
related foreign objects in food.
Evaluating Possible Foodborne
Illness
When faced with a potential food-poisoning incident, one of the crucial
first steps should be to identify the
source and the illness itself. If the
claimant is indeed sick due to food poisoning, then action needs to begin immediately to deduce the cause of the
