Marler Clark, LLP PS. Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State.

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2 Marler Clark, LLP PS Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State. Only a fraction of the victims who contact our office end up being represented. Who do we turn away? Why?

3 The Chaff Just like health departments we need to quickly and reliably recognize unsupportable claims How Do We Do It?

4 Basic Tools of the Trade Health Department Involvement Symptoms Incubation Duration Food History Medical Attention Suspected source Others Ill

5 Matching Symptoms with Specific Characteristics of Pathogens E. coli O157:H7 Hepatitis A Salmonella Shigella Campylobacter Vibrio E. coli O157:H7 Salmonella Campylobacter Hepatitis A Shigella Vibrio

6 Matching Incubation Periods Incubation Periods Of Common Pathogens PATHOGEN Staphylococcus aureus Campylobacter INCUBATION PERIOD 1 to 8 hours, typically 2 to 4 hours. 2 to 7 days, typically 3 to 5 days. E. coli O157:H7 1 to 10 days, typically 2 to 5 days. Salmonella Shigella Hepatitis A Listeria Norovirus 6 to 72 hours, typically hours. 12 hours to 7 days, typically 1-3 days. 15 to 50 days, typically days. 3 to 70 days, typically 21 days. 24 to 72 hours, typically 36 hours.

7 Epidemiologic Assessment Time Place Person association Part of a recognized outbreak?

8 Medical Attention Health care provider Emergency Room Hospitalization

9 Health Department Involvement

10 FOIA/Public Records Request

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12 Prior Health Department Inspections Improper cooking procedures Improper refrigeration Improper storage and cooking procedures Improper sanitation

13 Communicable Disease Investigation Reportable Disease Case Report Form Enteric/viral laboratory testing results Human specimens Environmental specimens

14 Molecular Testing Results PFGE/MLVA PulseNet

15 Traceback Records POS A FIRM A FIRM D FIRM I FIRM N GROWER A POS B FIRM E FIRM J GROWER B FIRM B POS C FIRM F FIRM K GROWER C POS D FIRM C FIRM G FIRM L FIRM O GROWER D FIRM H FIRM M Firm Name Firms A,C,D,G, H,I,L,M,N Growers A&C Firms B,E,F,J,K Firm O, Grower D Grower B No. of outbreaks Assoc. with firm/ Total no. of outbreaks 1/4 1/4 2/4 3/4 4/4

16 Who is a Manufacturer? A manufacturer is defined as a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer. RCW (2); see also Washburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)

17 The Legal Standard: Strict Liability The focus is on the product; not the conduct They are liable if: The product was unsafe The product caused the injury STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT

18 Causation - Science Causation is an essential concept in epidemiology, yet there is no single, clearly articulated definition. J Epidemiol Community Health 2001Dec;55(12):905-12; Parascandola M, Weed DL. Confidence Interval (CI) Range within which 95% of times the true value of the estimated association lies (95% CI)

19 Causation The Law A proximate cause of an injury is a cause which, in natural and continuous sequence, produces the injury, and without which the injury would not have [likely] occurred. The concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition. Prosser, Torts, pp However, It really is what is more likely than not. It is 50% and an extra grain of sand. Marler on the law

20 But, Causation Still Requires Admissible Evidence Whether a theory or technique can be (and has been) tested Whether it has been published and subjected to peer review Whether it has a high potential rate of error Whether it enjoys general acceptance in scientific community Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

21 It s called STRICT Liability for a Reason The only defense is prevention Wishful thinking does not help If they manufacture a product that causes someone to be sick they are going to pay IF they get caught

22 Why Strict Liability? Puts pressure on those (manufacturers) that most likely could correct the problem in the first place Puts the cost of settlements and verdicts directly onto those (manufacturers) that profit from the product Creates incentive not to let it happen again

23 What Will a Jury Think?

24 Questions?