Agriculture Reference
In-Depth Information
plaintiffs do win.
13
But when there is a confi rmed illness, and a link to an investigated
outbreak, there is no real way to dispute the existence of the defect.
Proof of Causation
Under the malfunction doctrine, proof of injury is proof of defect only if the injured
person can prove the defect caused the injury. At fi rst glance this appears simple, at
least to many people contacting a law fi rm and claiming to have a valid foodborne
illness claim. Based on over a decade of experience responding to telephone calls and
emails from persons thinking they have a legal claim, I can state with a high degree
of confi dence that the vast majority of people assume that the last restaurant meal that
they ate was “for sure” the cause of their illness. But this is rarely the case for several
reasons.
First, incubations periods vary signifi cantly depending on the pathogen involved,
and can extend upwards to several weeks.
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Unaware of this fact, people wrongly
assume a shortened cause-and-effect between their last restaurant meal and their
illness. As a result, without knowing what pathogen is involved (assuming one is), it
is diffi cult to prove causation. Second, even assuming the person received medical
attention, physicians do not routinely order the stool cultures needed for pathogen
identifi cation.
15
Third, unless the illness is seen as being potentially part of a foodborne
illness outbreak, there is little likelihood of a health department investigating the
source of the illness.
16
Fourth, the nationwide distribution of mass-produced food
makes it diffi cult to detect multistate outbreaks possibly related to low-level contami-
nation of food.
17
It is for these reasons, and no doubt others, that the vast majority of
foodborne illness in the United States has an unknown cause.
18
Consequently, even
with the relative ease of proof associated with an outbreak-related defective food
claim, litigation remains a weak economic incentive for increased investment in food
safety. As one study concluded:
Because fi rms responsible for microbial contamination compensate relatively
few foodborne illnesses, the legal system provides only limited feedback to fi rms
about the need for greater food safety.
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Plainly, where food companies can reasonably assume that an illness caused by their
product will never be traced back to them, there is little reason to spend more to
prevent or reduce the incident rate of the defects.
Traceability and Product Liability
Although proof of negligence is not required to establish strict liability, a person who
alleges injury and hopes to recover compensation must still be able to identify the
product that caused the injury and prove causation. This is where most potential legal
claims fail, and it is the chief reason for turning away a potential client seeking to fi le
a lawsuit. This is especially true when it comes to fresh produce.
One major impediment to imposing legal liability in a case involving contaminated
fresh produce is the lack of traceability in the distribution system. In most such cases,
at least those that involve a branded product, the manufacturer is easily identifi ed, as
