"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.
Importance of Experts At Outset of Outbreak
A few weeks ago, I gave a presentation at a CLE seminar about how to use and challenge expert witnesses in a food case. One of the interesting discussions that occurred during my talk was about the importance of retention of experts at an early stage, even before health department officials finalize their findings.
Given the limited resources of most state and local health departments, I have always believed there is little to lose by offering the assistance of credible and known epidemiologists, microbiologists, etc. Additional resources in an outbreak investigation (and, therefore, additional investigation) can mean the difference between the health department pointing at your client and the health department pointing at another source. Several other defense lawyers, and, surprisingly, state health department officials, agreed. Examples of successful early intervention were elicited.
