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Chicago Food Claims and Litigation Conference 2006 William D. Marler, Esq. firstname.lastname@example.org
Evaluation Tools For Small Cases • Health Department Investigation of the Outbreak/Incident • Causation - Liability • Medical Records • Lab Reports • Discovery • The Client • The Defendant, the Brand and the Publicity • Venue See - “Separating the Chaff from the Wheat : How to determine the strength of a foodborne illness claim.” www.billmarler.com
FDA food code instructor That unfortunate fact doesn’t serve [ ] the law profession, but I assure you people like myself in hospitalitytraining and certification are doing [our] best to put people like you out of business, first and foremost for the customers[‘] safety, secondly because for once it would be to take food out a lawyer’s mouth . . . Sort of ironic, you shut down restaurants, I shut down lawyers . . . Lol Have a bad, bad day you Parasite.
Lending a Helping Hand “My husband recently opened a bottle of salsa and smelled an unusual odor but chose to eat it regardless, thinking that it was just his nose. . . .
Lending a Helping Hand After taking two bites and tasting rather badly, he found what appeared to be a rather large piece (approx. the size of the back of an adult's fist) of human or animal flesh. Even though he didn't seek medical attention, he did become very nauseated. I do feel that the manufacturer should be held responsible for this mishap.”
Strict Liability • “Resistance is Futile”
Pathogens • E. coli O157:H7 • Hepatitis A • Salmonella • Shigella According to the CDC, pathogens are “usually transmitted to humans by eating foods contaminated with animal or human feces.”
7 years old, ate at restaurant as part of birthday party for friend. • Vomiting, abdominal cramps, stomach pain, diarrhea, fever. • Admitted to Hospital for 2 days, blood culture positive for Salmonella, treated with IV antibiotics. • Out of school for 10 days. • Father, widower, missed work to care for her - $800 • Medical bills - $3,400 VALUE? $29,500
4 years old, family ate at restaurant after his first T-Ball game, father away in National Guard. • High fever, stomach cramps, abdominal pain, bloody diarrhea. Fever topped 104 degrees. • Hospitalized with positive blood culture for Salmonella, treated with IV antibiotics. • Hospitalized for three days. • Mom missed 1 week of work - $660. • Medical bills - 3,309. VALUE? $30,867
Married for 24 years, lives with husband and two children. • Speech pathologist, works with children with autism. • In the midst of chemotherapy for breast cancer. • Had started chemotherapy in September. • Had been on medical leave from work for a number of months to confront the cancer. • Became ill just before Thanksgiving with HAV. Missed a large family gathering to celebrate Thanksgiving and her fight against cancer. • Acutely ill for four weeks. • Medical Bills $130 VALUE? $52,000
34-year-old single mother of two and grandmother of one. • Severe flu-like symptoms, headaches, nausea, and a temperature of 103 degrees. Jaundice. Acute HAV infection. • Professional entertainer who worked primarily for tips. • Works four nights a week and pays $100 nightly in rent for her workspace. • Estimates that she nets $500, on average, per shift, i.e., $600 per shift less the $100 in rent. • Missed 41 days of work. • Medical bills $459.96 • Wage Loss $20,500.00 VALUE? $54,000
14 year-old boy, lives with younger brother and parents. Suffers from cerebral palsy, a disorder that affects his body-movement and muscle-coordination. • In 2002, underwent a surgical procedure intended to repair improper bilateral growth of legs and hips. In a cast that extended from his upper waist all the way to his feet. • Family went camping after consuming hamburger. • Ran out of diapers and were forced to wrap him in towels and a large garbage bag to keep Kyle’s diarrhea from getting all over the car. • Three days hospitalized. E. coli positive. Ill for an additional week. • Medical bills $4,480 VALUE? $99,000
60-years-old, recently widowed. • Seen in ER after days of illness. “Crampy, unrelieved by aspirin, and associated with frequent bowel movements.” Pain was “8/10” and had kept her up all night. • Dehydration and pain, normal saline and morphine transfused intravenously. Doctors ordered blood and stool cultures, as well as a CT scan of Mary’s abdomen. • Colonoscopy, E. coli positive. • Hospitalized for five days, 1 – 1 ½ weeks of symptoms after hospitalization. • Medical bills $13,635 VALUE? $88,000
Insurance executive, married with three children. • Attended golf tournament at a country club on June 10 where he ate a sandwich at the “19th Hole.” • On June 12, abdominal cramps and diarrhea. • Tried to play in his regular Thursday golf league. While on the fairway, experienced a sudden and severe bout of diarrhea, and was unable to reach the bathroom in time. This was both painful and embarrassing. Nicknamed “Shitty.” • On June 14, remained at home with nearly constant and bloody diarrhea, fever, and vomiting. Shigella positive. • Unable to play in the traditional father-son golf tournament. • Acute symptoms slowly faded, but took several weeks before his stomach cramping, pain, and fatigue significantly improved. • Medical Bills $41.72 • Wage Loss $340.16 VALUE? $13,000
Bottom Line • Evaluation of cases is hard • It is an art, not a science • In a Strict Liability case, with Causation it is all about damages: • Focus is on the facts of the outbreak and the injuries • Who has the best story to tell? • Who is most likeable? • Who is most trustworthy?
A Jury = 12 Consumers What Will a Jury Think?