5. Food Outbreaks

• Pages: 95-119
• Author: Trent Taylor

5

Food Outbreaks

Trent Taylor1

Although food- related disease has caused headlines for many

years, modern scientic techniques are making outbreaks easier to

identify—increasing the probability and potential scope of law-

suits. This chapter covers a wide range of topics and common

questions related to consumer litigation in the food- and- drink

arena.

Foodborne illnesses are commonplace in the United States today. The

Centers for Disease Control and Prevention (CDC) estimates that

there are over 48 million such illnesses every year in the United States,

leading to 128,000 hospitalizations, 3,000 deaths, and $78 million

in nancial losses (including health care costs). When more than one

person contracts the same illness from the same contaminated food or

drink, the U.S. Food and Drug Administration (FDA) characterizes it as

a foodborne outbreak. Such outbreaks are not a new worry; for exam-

ple, a New York State court in 1887 remarked that even then, it was

“notorious that the adulteration of food products has grown to propor-

tions so enormous as to menace the health and safety of the people.”2

1. Trent Taylor is a litigation partner at McGuireWoods LLP.

2. See People v. Kibler, 106 N.Y. 321, 324 (N.Y. 1887).

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But foodborne outbreaks today bear little resemblance to those

in the past. This is another example of how outbreak litigation has

changed over time, particularly as the science has changed. These

outbreaks once were mysteries, with little known about the causes

of the illnesses or how to prevent them. In fact, so little was known

about such illnesses that they often could not accurately be called

outbreaks at all—there was too little information to link one illness

to another. Such illnesses once were mainly localized, just as the food

supply was. And regulation of food production was once almost non-

existent, so there was little to prevent such illnesses.

Today, it is different. Most of these illnesses can now reliably be

called outbreaks. Science has progressed to where testing can distinguish

between particular strains of bacteria and trace exactly what food caused

a particular illness. Now, foodborne illnesses often are national in scope,

given that the food supply is ruled by multinational corporations with

supply chains that reach almost every locale in the United States. Indeed,

even contamination of one facility can affect a signicant swath of the

food supply; in 2008, salmonella contamination at one peanut proces-

sor’s facility resulted in the recall of almost 4,000 separate food prod-

ucts. And contrary to the past, today’s food supply is heavily regulated

by both the federal government as well as state and local governments.

The federal government spends upward of $1 billion every year on food

safety, and state governments spend more than $300 million.

Accordingly, foodborne outbreaks today are monumentally import-

ant. One small food safety mistake in one facility or restaurant can sicken

hundreds or even thousands and potentially kill dozens. A single mistake

can instantly erase years of consumer goodwill, result in millions and

even billions of dollars in losses, and even lead to the bankruptcies of a

food manufacturer or supplier. But even apart from the signicant health

and monetary consequences of a foodborne outbreak, there are serious

legal consequences, as well. The cause of a foodborne outbreak is far

more likely to be identied now than in the past. When a cause is identi-

ed, so too is the entity or entities that are responsible for the outbreak.

Entities that produce, distribute, or sell food face potential lawsuits

from a plaintiff (or a class of plaintiffs). Such lawsuits potentially can

result in a verdict or settlement that forces the corporate entity to pay

millions of dollars. This chapter will discuss the legal implications for

entities that are involved in foodborne outbreaks.

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