Causes of action in food borne illness litigation
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Causes of Action in Food-borne Illness Litigation. Sarah L. Brew Greene Espel, PLLP 200 South Sixth Street Minneapolis, Minnesota. Basic Causes of Action. Strict Liability. Focus is on the product , not fault or lack of care. Strict Liability. Defective Product =

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Causes of Action in Food-borne Illness Litigation

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Causes of action in food borne illness litigation

Causes of Action in Food-borne Illness Litigation

Sarah L. Brew

Greene Espel, PLLP

200 South Sixth Street

Minneapolis, Minnesota


Causes of action in food borne illness litigation

Greene Espel, PLLP


Basic causes of action

Basic Causes of Action

Greene Espel, PLLP


Strict liability

Strict Liability

Focus is on the product, not fault or lack of care

Greene Espel, PLLP


Strict liability1

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


Strict liability2

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


Strict liability3

  • 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


Washington state

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


Negligence

Negligence

Focus is on the exercise of reasonable care

Greene Espel, PLLP


Negligence1

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


Negligence per se

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


Negligence per se1

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


    Breach of warranty

    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


    Breach of warranty1

    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


    Consumer fraud

    Consumer Fraud

    Consumer Protection and Deceptive Trade Practices Statutes

    • Attorney Fees

    • Treble Damages

    • Class Actions

    Greene Espel, PLLP


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