Contaminated Fresh Produce and Product Liability: A Law - in - Action Perspective - Microbial Safety of Fresh Produce - page 395

15. Thomas Hennessy , et al. , Survey of Physician Diagnostic Practices for Patients with Acute Diarrhea:
Clinical and Public Health Implications , CID, 2004 : 38 , S203 - 11 ( Suppl 3 ) (stool cultures were done
for less than 50% of patients with diarrhea).
16. Buzby at 7, supra at note 12.
17. Ban Mishu et al., Surveillance for Sporadic Foodborne Disease in the 21st Century: The FoodNet
Perspective , CID, 2004 : 38 , at S 119 .
18. Paul S. Mead et al ., Food-Related Illness and Death in the United States , 5 Emerging Infect. Dis. (No.
5) 607, 614 (1999) (estimating that there are 76 million cases of foodborne illnesses each year with
over 80% caused by no known source).
19. Buzby at 27, supra at note 12. The Buzby study, while good, is fl awed for its failure to suffi ciently
recognize the implications of the fact that the vast majority of legitimate food-injury claims never go
to trial and are privately settled. In the 10-year history of Marler Clark, only one of the fi rm ' s cases
ever went through trial to verdict; all others settled.
20. 7 C.F.R. Part 46 (promulgated pursuant to PACA, 7 U.S.C. 499, et seq. )
21. E. Golan , et al. , Traceability in the U.S. Food Supply: Economic Theory and Industry Studies , USDA -
ERS, AER-830, at 12 (March 2004).
22. FDA/CFSAN, “Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables,”
Section IX (hereinafter referred to as FDA Safe Produce Guidelines ) . Available at http://vm.cfsan.fda.
gov/∼ dms/prodguid.html , accessed September 30, 2008 .
23. See California Food Emergency Response Team (CalFERT), Investigation of an Escherichia coli
O157:H7 Outbreak Associated with Dole Pre-Packaged Spinach , Final Report, March 21, 2007 (here-
inafter “ CalFERT Report ” ).
24. See CalFERT, Investigation of the Taco John's Escherichia coli O157:H7 Outbreak Associated with
Iceberg Lettuce , Final Report (February 15, 2008).
25. Minnesota Department of Health, Final Report, A Multistate Outbreak of Escherichia coli O157:H7
Infections Associated with Dole Brand Prepackaged, Prewashed Lettuce Salad—Minnesota, Oregon,
Wisconsin , at 6 (September 2005).
26. 21 U.S.C. 342(a)(1) (defi ning one kind of “ adulteration ” ).
27. Current Good manufacturing practices (GMPs). 21 C.F.R. Part 110, promulgated pursuant to Federal
Food, Drug and Cosmetics Act, 21 U.S.C. § 301, et seq.
28. See , e.g., FDA Safe Produce Guidelines; and the 2004 FDA Produce Safety Action Plan, Produce
Safety From Production to Consumption: 2004 Action Plan to Minimize Foodborne Illness Associated
with Fresh Produce Consumption. Available at http://www.cfsan.fda.gov/∼ dms/prodpla2.html , accessed
September 30. 2008.
29. There is one exception, however, and that is in the case of what is called federal preemption. A full
discussion of preemption is beyond the scope of this article, but briefl y, this involves a situation in
which federal law sets a standard that preempts any different standard under state law, including product
liability law. For a discussion of preemption in the context of USDA rule-making, see D. Stearns,
Preempting Food Safety: An Examination of USDA Rulemaking and Its E. coli O157:H7 Policy in
Light of Estate of Kriefall ex rel. Kriefall v. Excel Corp., 1 Food Law & Policy, 375 (Fall 2005) (dis-
cussing USDA policy allowing E. coli O157:H7 on intact cuts of meat).
30. See, generally , RESTATEMENT (2nd) OF TORTS § 286 (1965).
31. See David G. Owen , Proving Negligence in Modern Products Liability Litigation , 36 Ariz. St. L.J.
1003, note 36 and corresponding text.
32. 624 So.2d 1065, 1068 (Ala. 1993) (citing FDA regulations in holding that the question of “whether
sulfi te preservatives on fresh produce are within the reasonable expectation of a consumer is a question
for a jury ” ).

33. Calvin, supra note 2 (“With the fall 2006 outbreak, all spinach growers suffered from

decreased consumer demand for their product, even though only one grower's spinach was
contaminated. ” ).

34. See , generally , Matthew Kohnke, Reeling in a Rogue Industry: Lethal E. coli in California ' s Leafy

Green Produce and the Regulatory Response, 12 Drake J. Agric. L. 493 (Fall 2007) (arguing that the
safety standards put into place by industry are both too lax and not enforceable).

35. Julie Schmit , Last fall's E. coli outbreak in fresh spinach spurs changes , USA Today, Sept. 20, 2007.

36. Buttrick v. Arthur Lessard & Sons, Inc. , 260 A.2d 111, 113 (N.H. 1969 ).