Udder nonsense? The emerging issue of raw milk sales in Florida.

• Author: Adams, Damian C.
• Position: Legal Liability, part 2

Producers of unpasteurized "raw" milk face significant legal liability. Pasteurization is "the application of heat to destroy human pathogens in foods." (1) The process can significantly reduce milk's disease risks; yet the process can also reduce milk's inherently beneficial qualities, such as available nutrients, active enzymes, helpful bacteria, calcium absorption, and taste. (2) Milk is an ideal vector for several dangerous bacteria and viruses, and several serious disease outbreaks have been blamed on raw milk. The U.S. Food and Drug Administration blamed raw milk for 45 such outbreaks from 1998-2005, including severe symptoms and hospitalization. (3)

Despite the risks to human health, producers continue to market raw milk to the general public even when specifically prohibited. (4) Part one of this article, published in the October 2008 issue, addressed the federal and state regulatory schemes for marketing raw milk and provided background information on pasteurization and its impacts on milk. Part two examines the legal ramifications of marketing raw milk to the end consumer. There are four legal theories that an injured person is likely to use to recover for damages from raw milk: 1) negligence and negligence per se; 2) strict products liability for manufacturing, design, and warning defects; 3) breach of express or implied warranty; and 4) misrepresentation.

Bearing in mind the elements of a negligence suit, a dairy farmer or vendor of raw milk is required to use ordinary or reasonable care in production and maintenance, marketing, and selling raw milk, as well as to provide warning or notice of any deleterious condition; milk should be without impurities or contamination. (5) Potential errors in the handling and vending of raw milk include the use of contaminated milk, cross-contamination of wholesome and contaminated raw milk, poor personal hygiene by infected milk handlers, inadequate cleaning of equipment, inadequate temperatures for storage, insufficient assessments of a cow's health, and failure to properly sanitize a facility. (6) For example, in Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 223 (Tex. App. 1999), a Texas appeals court found that producers had a duty to disclose any diseases among the herd prior to the sale of any animal. This duty may extend to herd share schemes, which advocates consider as reducing liability to the farmer because the consumer is drinking milk from the cow owned in part by the consumer. (7) The question of whether a duty exists can turn on the foreseeability of harmful consequences, particularly with respect to third parties. (8)

Plaintiffs in a negligence claim may find it difficult to establish that the raw milk was the proximate cause of their injuries. (9) Courts may look to medical testimony to evaluate other potential causes of an illness. (10) In Florida, the plaintiff's burden of proof may be met by a "reasonable certainty" that the milk caused the injuries. (11) Commodities like milk are typically collected from numerous producers, graded, and then stored collectively. One contaminated truckload can spoil the whole lot, and it can be difficult to determine which producer is to blame for the contamination. (12) Florida courts have recognized market share liability, which allows apportionment of fault according to market share. (13) This form of liability has only been applied to negligence cases, not strict liability, warranty, or other actions, which are discussed below.

Raw milk producers may have a special duty to warn. (14) When raw milk is sold to consumers for pet or human consumption, a warning or disclaimer often accompanies the product. Once a duty to warn arises, the manufacturer who has provided it may still be liable for harm if the warning is inadequate. A qualitative evaluation may find that the warning did not sufficiently advise of the product's potential dangers, which is "no better than providing no warning at all." (15) Mandatory warnings and labels do not shield the producer or vendor from liability in negligence actions. (16)

Negligence per se is triggered when the defendant violates a statute or regulation that was designed to prevent the type of harm suffered by the plaintiff. Violation of Florida's statute governing the handling and/or sale of milk would trigger negligence perse. (17) Once established, the defendant is liable for injuries regardless of how reasonable the defendant's actions. (18)

Raw milk marketers are also vulnerable to strict products liability claims for 1) manufacturing defects, 2) design defects, and 3) warning defects. (19) Food products are considered to have a manufacturing defect if they contain a "harm-causing ingredient" that "a reasonable consumer would not expect the food product to contain." (20) Florida applies the reasonable expectations test for manufacturing defects. (21) For raw milk, the main focus of a manufacturing defect claim...