Abstract
Litigation serves as an incentive to increase food safety through a variety of mechanisms. The impact of litigation is an amplifying one. It drives media attention, resulting in increased pressure on both producers and enforcement. Legal incentives only work in outbreak situations because it is nearly impossible to prove the source of contamination in sporadic cases. The vast majority of food defects will never be discovered; thus, the economic incentives from litigation are relatively weak. Restaurants and branded producers are more highly influenced by litigation, and reputational economic damages drive investment into food safety. However, because most claims settle and suppression of information accompanies this outcome, the incentives of litigation are undermined. This chapter will first discuss how liability can be imposed on producers and retailers of unsafe food and second how the evolution of the law has both bettered and hampered litigation as an incentive and lastly raise the question of whether increased litigation increases food safety.
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Notes
- 1.
During my 15 years as a partner at Marler Clark, every time there was a foodborne illness outbreak, the firm would quickly receive calls from media outlets seeking comments and interviews. Nearly from the beginning, we had a full-time person whose job was to handle media contacts and to arrange for interviews with our attorneys and our clients.
- 2.
See Denis Stearns, On (Cr)edibility: Why Food in the United States May Never Be Safe, STANFORD L. & POL. REV. 245, 249 and n. 12 (2010) (Stearns 2010) (explaining how the profitability of food depends in part on the ability to avoid investment in improved safety while causing significant amounts of foodborne illness that is never traced to its source).
- 3.
The production or sale of food in a regulated capacity is one way of distinguishing commercial food activity from noncommercial food activity, such as making food for a bake sale or a neighborhood picnic. Being “in the business” of making or selling food is legally significant to litigation, because the rules (about to be discussed) that govern the imposition of liability for the sale of injury-causing food are usually dependent on your ability to show that the entity being sued was a business. In other words, the liability rules applied to food (and other products) do not usually apply to noncommercial activity.
- 4.
A “theory of liability” is also commonly referred to as a “cause of action” or “legal claim.” The document that commences the litigation, and that sets for the legal claims, is called the complaint.
- 5.
Generally, to be admissible, evidence of “custom” must show that a practice is well-established and broadly followed, making it likely that member of the industry should know of the custom.
- 6.
T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (Hooper 1932). In the T.J. Hooper case, a tugboat operator was sued for negligence as a result of it having lost two barges of coal in a storm. The boats had not been outfitted with radios and, thus, could not receive storm warnings. The defendant argued that it had fully complied with existing custom because most tugboat operators at the time did not outfit boats with radios. Rejecting this argument, the court held that not adopting available new technology could be proof of negligence.
- 7.
These rationales for applying strict liability to retailers were first announced in the much-studied, much-debated case of Vandermark v. Ford Motor Co., 391 P.2d 168 (Cal.1964). In an oft-quoted passage from the case, the court explained that, “Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.”
- 8.
Almquist v. Finley School District, 57 P.3d 1191, 1197 (Wash. Ct. App. 2002) (explaining that strict liability should apply to only those who exercise “actual control” over the product versus those who pass the product along unchanged like a distributor or grocer) (Almquist v. Finley School District 2002)
- 9.
See Almquist, 114 Wn. App. at 405 (“to make means to bring a material thing into being by forming, shaping, or altering material; to fabricate means to form into a whole by uniting parts; and to construct means to form, make, or create by combining parts or elements”).
- 10.
This chapter has not delved deeply into breach of warranty as a claim much used for food cases; mostly it is a claim that is rarely needed, except in states, like Michigan, that rely on a form of implied warranty claim instead of strict liability. Historically, the doctrines and rules that would evolve into strict product liability were developed in warranty cases, particularly those involving unsafe food products (Stearns 2015).
- 11.
Although direct evidence of food contamination is not common, it is not unheard of either. For example, in cases involving a sushi restaurant in Arkansas, more than one Mexican food restaurant, and a national fast-casual restaurant (like an Applebee’s), I have had clients who have taken home leftovers that ended up testing positive for a pathogen. Similarly, outbreak investigations sometimes find ingredients in restaurants that test positive, allowing a link to the persons who got sick eating at the restaurant.
- 12.
When there are multiple causes that have contributed to causing the same injury, some courts use what is called the “substantial factor” test, which asks whether one or more defendants “contributed in a material way” to causing the injury. The jury is then asked to determine the extent of each defendant’s contribution, and the verdict is allocated according to percentages. In practice, the “but for” causation test is not really any different, because it has never been the rule that there can only be one “but for” cause.
- 13.
The case that went all the way to verdict, and then on appeal, involved the lawsuits arising from the E. coli O157:H7 outbreak at the elementary school in eastern Washington. After a nearly month-long trial on the issue of liability (the trial on damages was to follow), the jury was asked to allocate fault as between the school district and the supplier of the contaminated ground beef. The jury allocated 100% of the fault to the school district for its improper cooking.
- 14.
Mary E. Proctor, et al., Multistate Outbreak of Salmonella Serovar Muenchen Infections Associated with Alfalfa Sprouts Grown from Seeds Pretreated with Calcium Hypochlorite, 39 Journal of Clinical Microbiology, Vol. 10, 3461, 3461 (Oct. 2001) (Proctor et al. 2001). These outbreak figures are from the United States only and, thus, omit one of the largest outbreaks of all time—also linked to sprouts. This historic outbreak involved E. coli O157:H7 and occurred in Japan in 1996, sickening 9441 people, mostly school children.
- 15.
In February 2012, Jimmy John’s permanently stopped selling sprouts on its sandwiches, this after the fifth sprout-related outbreak of illnesses linked to sandwiches sold at the restaurant chain. Eight months later, Kroger, the nation’s largest grocery store chain, also announced that it would stop selling sprouts. See Elizabeth Weise, Kroger stores stop selling sprouts as too dangerous, USA Today, Oct. 20, 2012.
- 16.
It should be emphasized that such a ruling is not a finding that the retailer was negligent; it was a legal conclusion that the plaintiffs had alleged sufficient facts to have earned the opportunity to prove negligence at trial. In this particular case, a settlement was eventually reached with the maker of the juice.
- 17.
Id. at 13.
- 18.
Pathogens of concern: Mad cow disease in cattle, prion not destroyed by heat during rendering into feed; eggs, Salmonella can proliferate in the yolk over the extended time due to repackaging; LFTB, high-risk ingredients with a likely heavy load of pathogens, including E. coli O157:H7.
Abbreviations
- ABC:
-
American Broadcasting Company
- CDC:
-
Centers for Disease Control and Prevention
- E. coli :
-
Escherichia coli
- FDA:
-
Food and Drug Administration/US
- FOIA:
-
Freedom of Information Act
- LTFB:
-
Lean, finely textured beef
- PBS:
-
Public Broadcasting System
- PFGE:
-
Pulsed-field electrophoresis
- US:
-
United States
- USDA:
-
United States Department of Agriculture
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Acknowledgments
My sincere thanks to Robert Scharff and Abigail Kolenbrander, each of whom reviewed a draft of this chapter and provided many helpful suggestions.
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Stearns, D. (2018). A Critical Appraisal of the Impact of Legal Action on the Creation of Incentives for Improvements in Food Safety in the United States. In: Roberts, T. (eds) Food Safety Economics. Food Microbiology and Food Safety(). Springer, Cham. https://doi.org/10.1007/978-3-319-92138-9_17
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