Real Events Happening to Real People 76 million cases of

foodborne illness annually1

325,000 hospitalizations 5,000 deaths Medical costs, productivity

losses, costs of premature death costs 6.9 billion dollars a year2

1Mead PS, et al., Food-related illness and death in the United States, Emerg Infect Dis. 5:607-614. 1999.2 Buzby, et al. Product Liability and Microbial Foodborne Illness (2001)ERS Agricultural Economic Report No. 799.

Marler Clark, LLP PS

Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every 50 States

Only a fraction of the victims who contactour office end up being represented

Who do we turn away?

There is a Worm in my Freezer!

“I recently found a whole, 2-cm long worm packaged inside a frozen dinner.  I have the worm in my freezer.  I'm interested in discussing my rights in this matter.  Could you please contact me, or refer me to a firm that may be able to give me assistance? ”

“Christening” the Carpet“I opened a box of buffalo wings and saw an unusually shaped piece of chicken and I picked it up.  When I saw that the ‘piece’ had a beak, I got sick to my stomach. My lunch and diet coke came up andI managed to christen my carpet, bedding and clothing. I want them to at least pay for cleaning my carpet etc.” 

The Chaff

Just like health departments, we need to quickly and reliably recognize unsupportable claims.

How Do We Do It?

Basically, The Same That You Do

Symptoms Incubation Duration Food History Medical Attention Suspected source Others Ill

Health Department Involvement

Matching Incubation PeriodsIncubation Periods Of Common Pathogens

PATHOGEN INCUBATION PERIOD

Staphylococcus aureus 1 to 8 hours, typically 2 to 4 hours.

Campylobacter 2 to 7 days, typically 3 to 5 days.

E. coli O157:H7 1 to 10 days, typically 2 to 5 days.

Salmonella 6 to 72 hours, typically 18-36 hours.

Shigella 12 hours to 7 days, typically 1-3 days.

Hepatitis A 15 to 50 days, typically 25-30 days.

Listeria 3 to 20 days, typically 21 days

Norovirus 24 to 72 hours, typically 36 hours.

Match Symptoms and Vehicles with Specific Pathogens

E. coli O157:H7

Hepatitis A

Salmonella

Shigella

Campylobacter

Vibrio

Epidemiologic Assessment

Time

Place

Person association

Part of a recognized outbreak?

Medical Attention

Health care provider

Emergency Room Hospitalization

Health Department Involvement

FOIA/Public Records Request

Communicable Disease Investigation

Reportable Disease Case Report Form

Enteric/viral laboratory testing results

Human specimens

Environmentalspecimens

Molecular Testing Results

PFGE and PulseNet

MLVA

Calicinet

Prior Health Department Inspections

Improper Cooking Procedures

Improper Refrigeration

Improper Storage and Cooking Procedures

Improper Sanitation

Improper Cooking Procedures

A young girl suffered HUS after eating a hamburger from a midsized southern California fast-food chain. 

Her illness was not culture-confirmed.

No food on site tested positive for E. coli O157:H7. 

Review of health inspections revealed flaws in cooking methods.

Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splash onto a nearby bun.

Improper Refrigeration

A Chinese buffet-restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak.

No contaminated leftover food was found. 

A number of ill patrons were children. Jell-O was suspected as the vehicle of transmission.

Health Department report noted “raw meat stored above the Jell-O in the refrigerator.” 

The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator.

Improper Storage and Cooking

Banquet-goers in southeastern Washington tested positive for Salmonella.

Leftover food items had been discarded or tested negative. 

Restaurant had “pooled”dozens, if not hundreds, of raw eggs in a singlebucket for storage overnight, then usedthem as a “wash” ona specialty dessert that was not cooked thoroughly. 

The Liability of Health Inspectors

Are You At Risk?

“Liability”

Financial responsibility for another person’s injuries or damages.

If You Are Going To Be Held Liable, It Will Be For:

NEGLIGENCE

Elements of NEGLIGENCE

Duty

Breach

Causation

Damages

DUTY

Legal obligation to act for the benefit of another person

Sources:

1. Statute or regulation

2. Contract

3. Common Law

The Other Elements

Breach

Causation

Damages

Public Duty

A legal doctrine that shields state

and local governments from

liability.

Immunity

Governments can choose to not be liable for tortious

conduct

Public Duty and Immunity

Whether an inspector is liable is a function of whether the state’s courts apply the public duty rule, sovereign immunity, or a combination of both.

The “public duty doctrine” shields almost all public officials and the

agencies they work for from

liability.

“A duty to all is a duty to none”

Public Duty Doctrine

Public Duty Doctrine Applied

Inspector conducts on-site inspection at sandwich shop. From previous inspections he knows that cooked deli meat used in sandwiches is prepped in a separate area out of public view. He leaves without inspecting the deli meat prep area.

20 days later there is a large Hepatitis A outbreak among sandwich shop patrons. An investigation attributes illnesses to an ill employee who sliced meats and did not wear gloves.

Is the inspector liable to patrons who become ill?

It Depends

Even among

states that apply

the public duty

doctrine, there

are always

exceptions

Can a Health Inspector in WA be Sued for Failing in a Duty to Find a Food-Safety Risk?

The answer is…..

Are you paying for

this information?

Sovereign Immunity Waived in WASHINGTON

RCW 4.96.010 – Government entities may be liable for damages arising out of their employees’ tortious conduct while performing their official duties.

But, Washington Appliesthe Public Duty Doctrine

The duty owed by the government entity must be one

owed to the injured plaintiff,

not one owed to the public in general.

“A duty to all is a duty to none”

Exception: Special Relationship

(1) where a public agent, acting within the scope of official conduct, has direct contact or privity with the injured plaintiff which sets the injured plaintiff apart from the general public; AND

(2) the public officer gives express assurances, which

(3) give rise to justifiable reliance

Special Relationship Applied

Just as the inspector starts his inspection he gets called back to the office and has to leave before finishing. As he gets in the car, a customer spots the county logo and asks if the restaurant is a safe place to eat.

“Sure,” he says, “the safest place in town.”

The customer consumesa sandwich and contractsHepatitis A.

Is the inspector liable?

MAYBE

Who Me, Worry?

Anyone can be sued. But the good news is, it is very unlikely occurrence.

You are always entitled to a lawyer provided by your employer for job-related claims.

You will not be financially exposed because it is your employer who would be on the hook for your

job-related mistakes. Be nice to lawyers, you

may need one someday (and some of us are actually nice people).

Words of Wisdom

Do your job and you will be fine Think like the business and customers

are your family Educate, Educate, Educate Document, Document, Document Photos, Photos, Photos Work cooperatively with other agencies Do as complete of an investigation

as resources allow

6600 Bank of America Tower701 Fifth AvenueSeattle, Washington 981041-800-884-9840www.marlerclark.com

Questions?