"Shotgun Questionnaire"--An Important Tool in Food Liability Defense
Food-borne illness cases generally involve strict liability. If a plaintiff can show illness and a causational link between the illness and adulterated food produced by the defendant, the defendant generally will be liable for damages proven by the plaintiff. In defense of first-party injured-plaintiff claims, negligence and the standard of care employed by the defendant is frequently irrelevant to issues of liability.
Because the defendant food seller’s actions may not be relevant, litigated issues frequently center on “causation” (i.e. was the plaintiff’s alleged illness caused by the defendant’s product). From the defense perspective, the plaintiff’s deposition and discovery of plaintiff’s food history and other possible sources of exposure are often key to assessing causation. Oregon’s “shotgun questionnaire” used by its public health investigators provides a great outline.
FSIS to Begin Testing for Non-O157 E. Coli
Dr. Richard Raymond, Under Secretary for Food Safety at the USDA, dropped a bombshell this week. As reported in the Des Moines Register, Dr. Raymond explained at the Seattle University food law symposium that his agency will begin testing for at least six different non-O157 E. coli strains in meat, poultry, and eggs. This is an important development because currently only E. coli O157:H7 is classified as an adulterant.
The USDA’s primary enforcement mechanism (as it has no mandatory recall authority) is to pull its inspectors from food processing plants, effectively shutting the plants down (a meat processing plant cannot operate by law without USDA inspectors). The USDA has no authority to remove its inspectors unless products are adulterated, so it cannot shut down a plant if it finds non-O157 E. coli.
Dr. Raymond’s announcement, therefore, raises the question of what USDA intends to do with its testing results for non-0157 E. coli. If USDA intends to request voluntary recalls for non-0157 E. coli, this is certain to generate controversy and crisis. For example, what is a food producer to do when the USDA (or another state or federal agency) asks for a large-scale recall or destruction of a product but cannot provide a sufficient scientific basis? What if the public health agency is wrong about the public health concern, and the recall threatens the viability of a business? As discussed previously on this blog, uncertainty prevails about the science, behavior, and public health effects of non-O157 shiga toxin-producing E. coli. Research (which by all means should be accelerated) may show that non-O157 E. coli justifies classification as an adulterant, but putting enforcement ahead of science is a risky business. How much confidence will the public or industry have in our public health officials when their decisions are made without scientific rationale?
Stay Tuned for More Non-O157 Information
Tomorrow FSIS will hold a meeting to discuss “challenges and proposed solutions in moving forward to address recalls and illnesses related to E. coli O157:H7.” The meeting will “explore proposed next steps as a means to make progress in the challenge of addressing E. coli O157:H7 and non-O157:H7 STECs.”. FSIS is also planning a “short term study to determine the extent to which non-O157 STECs may be present in FSIS-regulated products.”
Non-O157 Shiga toxin-producing E. Coli. is an important issue for food producers and sellers. Although non-O157 bugs have been implicated in food-borne outbreaks in recent years, serious questions exist concerning the scientific basis for implicating non-O157 bugs.
As discussed last October at the USDA’s conference on non-O157 E. coli, scientific challenges abound and uncertainties prevail in identifying and dealing with non-O157 Shiga toxin-producing E. coli. Little research currently exists. Often epidemiologists assume that non-O157 bugs behave and appear like E. coli O157:H7, and microbiologists looking for PFGE or genetic links between bugs apply the same run parameters and criteria. Yet many believe that comparing O157 bugs to non-O157 bugs may be like comparing apples to oranges.
Fortunately, I will have the opportunity to question many of the participants in this Friday’s FSIS meeting at Seattle University School of Law’s food law symposium. I’m looking forward to an update on the progress of non-O157 research.
Registration Filling Fast For April 11-12 Food Law Symposium
Next week’s food law symposium at Seattle University School of Law, cosponsored by my law firm, Stoel Rives is approaching quickly (I will be one of the moderators). In attendance will be Governor Christine Gregoire, top officials from the CDC and the USDA, representatives of the food industry, scientists, consumer advocates, food lawyers (both plaintiff and defense), and other stakeholders.
With the largest meat recall in U.S. history just a few weeks behind us, an uptick in large-scale food-borne outbreaks in the last 18 months, and the current focus on these issues by the media and the U.S. Congress, the symposium could not be more timely. I expect a lively debate about the trends in food safety, upcoming legislation, imports, and the responsibilities of consumers and the food industry, among other things. Anyone (not just lawyers) involved in food safety or food liability should attend. Registration is limited and filling up fast.
