Defending a food contamination case: initial steps.

• Author: Klapper, Antony

On February 14, 2007, ConAgra Foods, Inc. issued a voluntary recall of Peter Pan and Great Value peanut butters after the spreads were linked to a salmonella outbreak that has sickened 425 people in forty-four states. According to the U.S. Centers for Disease Control and Prevention (the "CDC"), product testing confirmed the presence of the outbreak strain of Salmonella Tennessee in opened jars of peanut butter that were obtained from consumers who had become ill. (2)

The peanut butter recall follows a number of other high-profile outbreaks of food-borne illnesses involving salmonella and other pathogens such as E. coli and Listeria in the past few years. For example, on December 13, 2006, the CDC reported that seventy-one people had become ill after eating at Taco Bell restaurants in five states. (3) The CDC confirmed that at least forty-eight of the seventy-one patients tested positive for a single strain of E. coli that was traced to the restaurants. Just two months earlier, the CDC announced that 199 people had been infected with another strain of E. coli bacteria that was traced to the consumption of tainted spinach. (4)

These outbreaks are not isolated occurrences. The CDC estimates that food-borne diseases cause approximately seventy-six million illnesses, 325,000 hospitalizations, and 5,000 deaths in the United States each year. (5) Thus, contaminated food products cause more deaths each year than the combined total of all 15,000 products regulated by the U.S. Consumer Products Safety Commission. (6) Food-borne illnesses now account for approximately one percent of all hospitalizations and one out of every 500 deaths in the U.S. (7)

In the aftermath of the more high profile outbreaks and recalls, there have been numerous lawsuits filed. ConAgra alone has been sued in dozens of separate lawsuits, many of which are class actions, in fact, the pace of litigation is remarkable. Just two days after ConAgra's voluntary recall of its Peter Pan and Great Value spreads, plaintiffs had already filed lawsuits against the company in Texas and Missouri, and today ConAgra faces lawsuits all over the country.

These cases, like most food contamination lawsuits, include a laundry list of claims, including breach of warranty, negligence, and strict products liability. But, what really drives the litigation (as with most litigation in the toxic tort and products arena) are the core questions of corporate conduct and causation.

This article explores these pressure points by outlining what steps a company should take to marshal the most effective defense possible. Synthesized to its core elements, a company facing a food contamination lawsuit should consider adopting the following game-plan: First, conduct an internal investigation to determine the root of the problem. Second, marshal evidence to defend your processes. Third, retain experts immediately. And, fourth, develop the contours of your causation defense by understanding the science, and the facts as they pertain to each plaintiff. This article focuses on food processors, but the advice applies equally to all potential food defendants.

Rooting Things Out

As with most large food contamination outbreaks, the federal government gets involved quickly. That does not mean you should simply sit on the sidelines, waiting for the USDA, FSIS or the FDA inspectors to finish their investigation. Instead, begin your own fact investigation immediately. First, begin interviewing employees in key departments. These would likely include the plant managers, production managers, those responsible for quality controls, customer service and sales people, as well as the shipping and transportation personnel, and cleaning crews. Do not forget your suppliers. While your suppliers may be reluctant to cooperate, they may be contractually obligated to assist you in your investigation and, at a minimum, expose themselves to greater liability if they do not cooperate. All interviews should be conducted with in house and/or outside counsel present in order to secure as much protection under the attorney client privilege and work product doctrine as possible.

Second, consider retaining an independent consultant and independent labs to identify and/or rule out potential sources of contamination. The results of such investigations may be discoverable in subsequent litigation, but oftentimes there is little downside to doing your own analysis. While the government's inspectors will likely be involved and companies should fully...