By: Nicole Whyte and Caryn Siebert
An owner or operator of an establishment that serves food will likely at some point have a patron who makes the complaint, “Your food gave me food poisoning.” This is a potentially dangerous claim that could expose the establishment to real liability. The restaurant owners’ thoughts begin to race: What food made this person sick? Do we still have any of it left? Did it make others sick? Are they going to report us to the Health Department? Worse, have they told anyone on social media?
Perhaps the only thing more dangerous than a sickened and scorned customer with 1,000 Twitter followers is the fact that one in six Americans each year will experience food poisoning. There is a strong possibility that as a restaurant owner, risk manager, insurer, TPA, or defense counsel, you will at some point be involved with a lawsuit for food poisoning. Worse, while a patron need only allege an establishment’s food made them sick to file a lawsuit, they will only need to show a loose gathering of evidence to prevail at trial. To meet their burden of proof at trial, plaintiff must give a jury enough substantial evidence to allow them to reasonably infer that it was defendant’s food that caused their illness. What amount of evidence is considered substantial, remains undefined. Plaintiff need not exclude every single other possibility, but just show their illness more likely than not resulted from defendant’s food.
Plaintiffs have a myriad of ways to compile their “substantial” evidence. A plaintiff can perform testing on the suspect food or leftovers, show that anyone else who ate the food also became sick in a similar manner, use expert testimony to link the pathogen that sickened them with some other contaminate in defendant’s kitchen, or establish that the particular food item served was part of a national recall. Certain jurisdictions even give weight to the argument that if the food tasted bad, a reasonable inference that it was bad can be drawn. Further, a plaintiff can show that the Health Department found unsafe or unsanitary food handling and preparation practices, had found deficiencies at the establishment in prior years, or that there have been several other complaints for food poisoning alleged against the establishment. A jury will not be impressed with any defense counsel or claims adjuster who claims their client has a spotless record of health if the patron arrives in court and presents your client’s 24 Yelp reviews from customers also alleging food poisoning.
Once a jury can reasonably infer it was the defendant’s food that caused the patron’s illness, the courts consider plaintiff’s prima facie case established. Therefore, it is critical for defense counsel to be creative in their attack on plaintiff’s substantial evidence and resulting reasonable inference.
Attack the Evidence
Defense can craft strategic arguments to highlight the ambiguity in plaintiff’s evidence. Did anyone else who ate the same food get sick? Did the Health Department not find any unsanitary practices in your client’s establishment or food preparation? Showing the jury that the defendant was not found to be unsafe with their food handling, storage, or preparation can go a long way towards casting doubt as to whether it is reasonable to infer plaintiff got sick because of your client’s food.
Did the treating physician state at the time of treatment that plaintiff’s illness was the type caused by the food plaintiff ate? In certain jurisdictions, defense counsel can gain ground by attacking the diagnosis provided by the treating physician. If the physician failed to state that the food poisoning experienced by the plaintiff is the type usually produced by the food at issue, defense may be able to use this fact alone to rebut plaintiff’s evidence of causation and prevail at trial.
Does plaintiff have any testing that directly links the insured’s food and their illness? In Geisness v. Scow Bay Packing, the court overturned a verdict for a deceased plaintiff’s estate on the grounds that plaintiff had failed to provide any direct proof that the salmon plaintiff ate was unwholesome or poisonous. The defense pointed out the testing on the salmon failed to produce any foreign or noxious substance, there was no laboratory testing on the salmon, and pointed out a lack of evidence that the salmon tasted peculiar or bad, but rather affirmatively showed it looked, smelled and tasted fine.
Attack the Inference
Perhaps the best way to attack plaintiff’s reasonable inference is to provide the jury with alternative theories as to how plaintiff could have come into contact with the same pathogen during the incubation period. Don’t be afraid to get creative, so long as you have support. You do not need to completely prove your alternative theory, just present your case that your alternative theory “more likely than not” resulted in plaintiff’s illness instead of your client’s food.
In Sarti v. Salt Creek Ltd, the defense provided several colorful alternative theories to explain how the plaintiff could have come into contact with salmonella while she went about her daily life. Among them was the suggestion that plaintiff contracted the disease by petting her cat. Defense also proffered that plaintiff’s job as a grocery checker put her into contact with employees from the meat department who had failed to clean up after butchering chicken. However, the jury didn’t buy either of these explanations, as defense counsel could not provide any credible evidence in support of this alternative explanation, nor could their expert opine these were likely alternative causes. Sarti also highlights the role of a skilled expert, a crucial requirement for defense counsel. If your expert can opine plaintiff got sick from one of your alternative theories, you will have a stronger defense.
As long as counsel provides adequate support for their alternative theories and work with their expert to discredit the evidence and call into question plaintiff’s theory, they will be able to successfully plant the seeds of doubt as to causation in a jury’s mind.
Caryn Siebert is an insurance executive, formerly the CEO of Carl Warren and Vice President of Claims for Safeco. Nicole Whyte is a Founding Partner of Bremer Whyte Brown & O’Meara LLP.
Reprinted with permission from the Fall 2015 issue of Litigation Management. For more information about the magazine or the CLM, please visit www.theclm.org
Worst U.S. Foodborne Illness Outbreaks of 2014
1. Caramel apples contaminated with Listeria monocytogenes, 5 dead and 29 sickened.
2. Dual Listeria outbreaks linked to Mexican-style cheese, 2 dead and 13 sickened in total.
3. Bean sprouts from Wholesome Soy Products contaminated with Listeria monocytogenes, 2 dead and 5 sickened.
4. Raw milk contaminated with Campylobacter in Utah, 1 dead and 80 sickened.
5. Mexican-grown cilantro contaminated with Cyclospora, 304 sickened.
6. Gravy at wedding contaminated with Clostridium perfringens, more than 300 sickened.
7. Foster Farms chicken Salmonella outbreak, 634 total sickened, including 218 in 2014.
8. Chicken dish (likely chicken marsala) at Food Safety Summit contaminated with Clostridium perfringens, 216 sickened.
9. Bean sprouts from Wonton Foods contaminated with Salmonella, 111 sickened.
10. Chia seeds and powder contaminated with Salmonella, 83 sickened.
Source: Food Safety News, December 23, 2014.