The Legal Standard: Strict LiabilityThe Legal Standard: Strict Liability

Strict Liability Is Liability Strict Liability Is Liability Without Regard To Fault.Without Regard To Fault.

The focus is on The focus is on the product; the product; not the conductnot the conduct

They are liable if:They are liable if:

– The product The product was unsafewas unsafe

– The product The product caused the injurycaused the injury

Who is a Manufacturer?Who is a Manufacturer?

A “manufacturer” is defined A “manufacturer” is defined as a “product seller who as a “product seller who

designs, produces, makes, designs, produces, makes, fabricates, constructs, fabricates, constructs, or remanufactures the or remanufactures the

relevant product or relevant product or component part of a component part of a

product before its sale to product before its sale to a user or consumer….” a user or consumer….”

RCW 7.72.010(2); RCW 7.72.010(2); see alsosee also Washburn v. Beatt Equipment Washburn v. Beatt Equipment CoCo., 120 Wn.2d 246 (1992) ., 120 Wn.2d 246 (1992)

It’s called It’s called STRICTSTRICT Liability for a Reason Liability for a Reason

The only defense The only defense is preventionis prevention

Wishful thinking Wishful thinking does not helpdoes not help

If they manufacture If they manufacture a product that a product that causes someone causes someone to be sick they are to be sick they are going to pay going to pay IFIF they get caughtthey get caught

NegligenceNegligenceThe legal standard applied to non-manufacturersThe legal standard applied to non-manufacturers

The reason for excluding The reason for excluding non-manufacturing retailers non-manufacturing retailers

from strict liability is to from strict liability is to distinguish between those distinguish between those

who have actual control over who have actual control over the product and those who the product and those who act as mere conduits in the act as mere conduits in the

chain of distribution.chain of distribution.

See Butello v. S.A. Woods-Yates See Butello v. S.A. Woods-Yates Am. Mach. Co., 72 Wn. App. 397, Am. Mach. Co., 72 Wn. App. 397,

404 (1993).404 (1993).

Causation – Science Causation – Science

““CausationCausation is an essential concept in is an essential concept in epidemiology, yet there is no single, epidemiology, yet there is no single, clearly articulated definition ….”clearly articulated definition ….”

J Epidemiol Community Health J Epidemiol Community Health 2001Dec;55(12):905-12; 2001Dec;55(12):905-12;

Parascandola M, Weed DL.Parascandola M, Weed DL.

Confidence Interval (CI)Confidence Interval (CI) – – Range within which 95% of times Range within which 95% of times the true value of the estimated the true value of the estimated association lies (95% CI)association lies (95% CI)

Causation – The LawCausation – The Law

““A A proximate causeproximate cause of an of an injury is a cause which, in injury is a cause which, in natural and continuous natural and continuous sequence, produces the injury, sequence, produces the injury, and without which the injury and without which the injury would not have [would not have [likelylikely] ] occurred. The concept of occurred. The concept of proximate causation has given proximate causation has given courts and commentators courts and commentators consummate difficulty and has consummate difficulty and has in truth defied precise in truth defied precise definition.”definition.”

Prosser, TortsProsser, Torts,, pp. 311-313 pp. 311-313

Lettuce and SpinachLettuce and Spinach

19 19 E. coli outbreaks since 1995since 1995

– 409 reported illnesses 409 reported illnesses

– two deathstwo deaths

Fresh or fresh-cut Fresh or fresh-cut lettuce or spinach lettuce or spinach implicated as outbreak implicated as outbreak vehiclevehicle

8 outbreaks traced 8 outbreaks traced back to produce from back to produce from Salinas, CaliforniaSalinas, California

2006 Wendy’s E. coli Outbreak

Utah - June 2006Utah - June 2006

E. coli O21:H19 – only 3 E. coli O21:H19 – only 3 culture-positive cases, culture-positive cases, although over 50 cases although over 50 cases probableprobable

3 HUS, 2 adult women,1 3 HUS, 2 adult women,1 with 30 days, the other with 30 days, the other with 4 months of dialysiswith 4 months of dialysis

Likely lettuce from Likely lettuce from CaliforniaCalifornia

Dole Lettuce E. coli Outbreak Summary

23 laboratory-confirmed 23 laboratory-confirmed cases of E. coli O157:H7; cases of E. coli O157:H7; 7 epi linked cases7 epi linked cases

Sept. 16 to Sept. 30 onsetSept. 16 to Sept. 30 onset

2 cases of HUS2 cases of HUS

Cases in MN, OR, and WICases in MN, OR, and WI

Statistically associated Statistically associated with eating Dole pre-with eating Dole pre-packaged lettucepackaged lettuce

““Smoking Gun” – found in bagSmoking Gun” – found in bag

Dole and Natural Selections – Fall 2006

204 persons infected 204 persons infected with outbreak strain with outbreak strain of E. coli O157:H7 of E. coli O157:H7 from 26 states. from 26 states.

102 (51%) hospitalized 102 (51%) hospitalized

31 (16%) developed 31 (16%) developed hemolytic-uremic hemolytic-uremic syndrome (HUS)syndrome (HUS)

Three confirmed Three confirmed deaths deaths

Dole and Natural Selections Dole and Natural Selections –– Fall 2006 Fall 2006

E. coli O157:H7E. coli O157:H7– Isolated from 13 packages Isolated from 13 packages

of DOLE spinach of DOLE spinach

– ““DNA fingerprintsDNA fingerprints”” of all 13 of all 13 match the outbreak strainmatch the outbreak strain

– Supplied by patients living Supplied by patients living in 10 statesin 10 states

– Eleven packages with lot Eleven packages with lot codes consistent with a codes consistent with a single manufacturing facility single manufacturing facility on a particular dayon a particular day

Spinach Aerial MapSpinach Aerial Map

Taco Taco E. coliE. coli Litigation Status Litigation Status

To date 12 lawsuits filed To date 12 lawsuits filed in Courts in 5 Statesin Courts in 5 States

Taco Bell and Ready-PacTaco Bell and Ready-Pac

Taco John’s and BixTaco John’s and Bix

Lettuce supplier to Bix - Lettuce supplier to Bix - Outbreak PFGE found on Outbreak PFGE found on nearby Farmnearby Farm

2006-2007 Peanut Butter 2006-2007 Peanut Butter SalmonellaSalmonella Outbreak Outbreak

CDC Figures as of CDC Figures as of March 7, 2007March 7, 2007

– 714 culture-positive 714 culture-positive illnesses from 44 illnesses from 44 statesstates

– 71 hospitalized71 hospitalized

– Illnesses reported Illnesses reported August 1, 2006 to August 1, 2006 to presentpresent

30 x 714 = 21,42030 x 714 = 21,420

2006-2007 Peanut Butter 2006-2007 Peanut Butter SalmonellaSalmonella Outbreak Outbreak

Marler MathMarler Math– CDC estimates that CDC estimates that

over 30 times the over 30 times the number of confirmed number of confirmed cases are never cases are never reported. Likely reported. Likely number of cases number of cases from peanut butter:from peanut butter:

Pot PiesPot Pies

272 isolates of Salmonella 272 isolates of Salmonella I 4,[5],12:i:- with an I 4,[5],12:i:- with an indistinguishable genetic indistinguishable genetic fingerprint have been fingerprint have been collected from ill persons in collected from ill persons in 35 states. To date, three of 35 states. To date, three of these patients’ pot pies these patients’ pot pies have yielded Salmonella I4,have yielded Salmonella I4,[5],12:i:- isolates with a [5],12:i:- isolates with a genetic fingerprint genetic fingerprint indistinguishable from the indistinguishable from the outbreak patternoutbreak pattern

Outbreaks Linked To Unpasteurized MilkOutbreaks Linked To Unpasteurized Milk

19941994 – 18 ill with – 18 ill with E. coliE. coli O157:H7 – O157:H7 – “pasteurized” milk“pasteurized” milk

19981998 – 55 ill with – 55 ill with E. coliE. coli O157:H7 – O157:H7 – “fresh” cheese curds“fresh” cheese curds

20012001 – 75 ill with – 75 ill with CampylobacterCampylobacter – – raw milkraw milk

20032003 – 62 ill with – 62 ill with SalmonellaSalmonella – – raw milkraw milk

20052005 – 18 ill with – 18 ill with E. coliE. coli O157:H7 – O157:H7 – raw milkraw milk

20062006 – 27 ill with – 27 ill with CampylobacterCampylobacter – – raw milkraw milk

20062006 – 2 ill with – 2 ill with CampylobacterCampylobacter – – raw milkraw milk

Related IssuesRelated Issues

Comparative faultComparative fault

Releases and WaiversReleases and Waivers

Trade association Trade association liabilityliability

Cow share Cow share arrangementsarrangements

Examples of Comparative FaultExamples of Comparative Fault

1.1. Consumer milks Consumer milks the cow and fails the cow and fails to follow sanitary to follow sanitary measuresmeasures

2.2. Consumer fails to Consumer fails to refrigerate the raw refrigerate the raw milkmilk

3.3. Consumer aware of Consumer aware of risk and ignores itrisk and ignores it

Releases and Liability WaiversReleases and Liability Waivers

1.1. Are they enforceable?Are they enforceable?

2.2. If so, what’s the effect?If so, what’s the effect?

Hamburger – It’s BackHamburger – It’s Back

In 2007 - 21 recalls, In 2007 - 21 recalls, ground beef ground beef companies have companies have recalled more than recalled more than 33 million pounds 33 million pounds of E. coli O157:H7-of E. coli O157:H7-contaminated meatcontaminated meat

Bill MarlerBill MarlerMarler Clark, The Food Safety Law Marler Clark, The Food Safety Law FirmFirm

1301 Second Avenue, Suite 28001301 Second Avenue, Suite 2800Seattle, WA 98101-3808Seattle, WA 98101-3808

(206) 346-1888(206) 346-1888