1 / 41

EXPERT TESTIMONY IN YOUR FOOD LIABILITY CASE

EXPERT TESTIMONY IN YOUR FOOD LIABILITY CASE. Ken Odza, Esq. Stoel Rives, LLP ACI Conference. TRIVIA. A jury will be surprised to see DNA type evidence in a food case?. True False. "CSI" effect. What is PFGE?. A. Pro Football Game Emcee

theresia
Download Presentation

EXPERT TESTIMONY IN YOUR FOOD LIABILITY CASE

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. EXPERT TESTIMONY IN YOUR FOOD LIABILITY CASE Ken Odza, Esq. Stoel Rives, LLP ACI Conference

  2. TRIVIA

  3. A jury will be surprised to see DNA type evidence in a food case? • True • False "CSI" effect

  4. What is PFGE? • A. Pro Football Game Emcee • B. Pulse Field Gel Electrophoresis • C. Something Bill Marler Made up?

  5. PFGE match is a "fingerprint" and cannot be disputed? • True • False

  6. Virtually every state recognizes some form of strict liability foradulterated food? • True • False

  7. HUS and TTP are the same thing? • True • False HUS - Hemolytic-uremic syndrome TTP - Thrombotic thrombocytopenic purpura

  8. Epidemiology addresses whether a food-borne pathogen caused the plaintiff’s illness? • Epidemiology Develops an “Association” – relationship between two events that occur more frequently than chance • True • False

  9. People believe they got sick from the last thing they ate? • True • False

  10. Usually, the last thing eaten is the source • True • False

  11. People can recall food histories weeks or months after an outbreak? • True • False

  12. Public health officials usually have unlimited resources for investigation of food borne illness? • True • False

  13. Jury will tend to believe your nobel prized expert over the public health official? • True • False

  14. Experts should be retained at moment of alleged outbreak • Assist with Health Department Investigation • Help Identify Early Where Liability Can Be Challenged • True • False

  15. Lawyers receive an array of scientific and medical training in law school • True • False

  16. Spinach

  17. National outbreak • Multiple confirmed Cases • Confirmed STEC in stool sample • Confirmed STEC in the spinach • PFGE match between spinach and stool • Ate spinach Within Incubation Period

  18. Hamburger….

  19. Single illness • No positive stool sample • No positive food sample • No PFGE Match • Not clear whether illness is HUS or TTP

  20. Challenging Liability To Plaintiffs

  21. Issues • Strict Liability? • Illness Caused By Food? • Food Sold By Defendants? • What else?

  22. Safe Food Handling • Experienced In Food Production • Background in Microbiology or Public Health • Knowledgeable of Safe Food Handling Practices • HACCP, etc.

  23. Safe Food Handling • Probably Not • Plaintiff will have to rule your source in and others out • Want to prove food handling practices

  24. Epidemiology/Infectious Disease • Defined As Study of Factors Affecting Health and Illness of Populations • Usually an MD or PhD with MPH - Backgrounds Vary • Attempts to Identify Risk Factors For Disease

  25. Epidemiology/Infectious Disease • Challenge existence of outbreak or infection – Probably Not • Limit scope of Plaintiff’s damages • All symptoms consistent of E.Coli? • How long was illness result of E.Coli versus something else? • Critical • Assist in ruling other sources in • Assist in ruling your client’s source out

  26. I AM A BAD BUG Genetic Microbiology • Study of Bugs’ Genome • PhD in Genetic Microbiology • Research Background With Food

  27. Genetic Microbiology • Challenge PFGE match? • Is There An Alleged PFGE link? • Are There Positive Stool and Food samples?

  28. Hematology • Study of Blood Diseases • Want Somebody Experienced in Diagnosis of HUS and TTP • FUTURE PRACTICE TIP: Possible Test To Determine The Difference May Be In The Works

  29. Hematology • HUS or TTP?

  30. Third Party Liability

  31. Issues • Source Of The Pathogen? • Negligence? • Who is at fault? • Was your client capable of eliminating pathogen? • What Else?

  32. Expert Selection I AM EXPERT! PICK ME! WE ARE BETTER! PICK US! I AM CHEAPER! PICK ME!

  33. Critical Factors • Recognized Expertise • Teacher • Likable • Good Motives • What Else?

  34. Finding Experts • Talking to other experts • Literature searches • Cold-calls

  35. Challenging Admissibility Chance To Win Without Going to Trial?

  36. Daubert Standard • Three major requirements: • (1) the witness must be an expert; • (2) the procedures and methods used in forming the witness' opinion must be reliable; and • (3) the testimony must “fit” the factual dispute at issue so as to assist the trier of fact. • Daubert, 509 U.S. at 591

  37. Expert Qualification • Standard – Discretion of court. • Factors: • Education • Practical experience • Study • Research • General background

  38. Selected Daubert Food Cases • Qualifications – • Etienne v. United Corp., 2001 WL 1568598 (Terr.VI. 2001) – “Sous”

  39. Selected Daubert Food Cases • Reliability • National Bank, C., El Dorado v. Assoc. Milk P. 191 F.3d 858 (8th Cir. 1999) – Aflatoxin M-1 (carcinogen) in Milk

  40. Selected Daubert Food Cases • Unqualified Expert Employing Unreliable Methodology • Passes Daubert!! • Meet Winnicki v. Bennigans, 206 WL 319298 (D.N.J. 2006) • Healthy 21 yo Eats Caesar Salad And Dies

  41. Questions?

More Related