Causes of Action in Food-borne Illness Litigation

1. Causes of Action in Food-borne Illness Litigation Sarah L. Brew Greene Espel, PLLP 200 South Sixth Street Minneapolis, Minnesota

2. Greene Espel, PLLP

3. Basic Causes of Action Greene Espel, PLLP

4. Strict Liability Focus is on the product, not fault or lack of care Greene Espel, PLLP

5. Strict Liability Defective Product = “A reasonable consumer would not expect the food product to contain the harm-causing ingredient.” - Restatement Third, Torts: Product Liability, § 7 Greene Espel, PLLP

6. Strict Liability Who Is Liable? Anyone “engaged in the business of selling or otherwise distributing” the defective food product. -Restatement Third, Torts: Product Liability § 7 Greene Espel, PLLP

7. Non-manufacturing seller may not be liable if • Manufacturer is solvent • Court has jurisdiction over manufacturer • Product sold in sealed container Strict Liability Statutory Exceptions Protecting Sellers Greene Espel, PLLP

8. Washington State A seller, other than a manufacturer, has no liability unless: • No solvent manufacturer is subject to service • High probability judgment is unenforceable • Seller is a controlled subsidiary of the manufacturer • Seller provided plans or specifications for the product • Product was sold under a trade name or brand of the seller - Rev. Code Wash. § 7-72.040 Greene Espel, PLLP

9. Negligence Focus is on the exercise of reasonable care Greene Espel, PLLP

10. Negligence • Reasonable Care = Care exercised by a reasonable manufacturer/seller under similar circumstances • Industry Standards • State of the Art • Compliance with Governmental Regulations • Followed GAP, GMP, HACCP Greene Espel, PLLP

11. Negligence Per Se • Violation of food-related regulation or laws is prima facie evidence of negligence by supplier of whey powder containing Salmonella. • Blommer Chocolate Co. v. Bongards Creameries, Inc., 635 F. Supp. 911, 917 (N.D. Ill. 1985) Greene Espel, PLLP

12. Negligence Per Se • FDCA • Adulterated = “contains any poisonous or deleterious substance which may render it injurious to health.” 21 U.S.C. § 342(a)(1). • Federal Regulations • FDA • USDA • State Food Act • Rev. Code Wash. § 69.04 • Local • Department of Health Greene Espel, PLLP

13. Breach of Warranty Express Warranty “. . .This delicious blend of baby leaf greens contains a varied mix of hand selected premium grade product that is already washed and ready to eat. . . .Available in ready to eat showbowls or loose in cartons for catering.” [Emphasis added.] www.sunsprout.co.nz Greene Espel, PLLP

14. Breach of Warranty Implied Warranty • Merchantibility • Fitness for a particular purpose “A food processor impliedly warrants under Rev. Code Wash. §69A.2-314 that food products it sells are of merchantable quality and fit for the ordinary purpose for which they are intended.” - Jeffries v. Clark’s Restaurant Enterprises, Inc., 580 P.2d 1103 (Wash. App. 1978) Greene Espel, PLLP

15. Consumer Fraud Consumer Protection and Deceptive Trade Practices Statutes • Attorney Fees • Treble Damages • Class Actions Greene Espel, PLLP