We recently published an email alert concerning studies allegedly linking distillers grains and E. coli O157:H7. The Des Moines Register ran a recent article on the subject.  The article mentions the ongoing study by the USDA. The USDA study  “will collect hide and feces samples from 300 control and 300 cattle fed diets supplemented with distillers grains.  Cattle will be sampled every 28 days for ten months.  These samples will be tested for the prevalence and level of E. coli O157:H7.”

Results from this study will not be released until at least the end of 2008 and more likely in 2009. However, the lack of definitive information may not insulate the biofuels industry from claims by plaintiffs relying on the results of the study. Strict liability, not negligence, will be the standard of liability.  What defendant industries knew and when they knew it may not be relevant.  In many states, the statute of limitations gives plaintiffs three or more years to bring suit.  As we advised in our original alert, biofuels manufacturers should review both their vendor contracts and their insurance coverage now, in order to mitigate and shift risk against future claims of liability.