Foodborne Illness Litigation: Manage Your Risk From day One.

Source of Article:

Daydots Food Safety Solutions
Saturday, 4th April 2009

Compliance not only decreases the risk for foodborne outbreaks, but it also decreases the risk of getting sued -

A good plaintiff’s attorney looks at four things in building a foodborne illness lawsuit.

First, she reviews the health department’s investigation, if one was made, as these findings carry considerable weight in court, since the health department is often considered an unbiased third-party.

Second, she uses the victim’s symptoms and laboratory tests to determine what may have caused the illness.

Third, she reviews public records to see if the suspected source of contamination has a history of failing to comply with health department codes.

Fourth, she examines the suspect source’s food handling techniques. A foodservice provider has little control over the first two items mentioned above but has complete control over the second two items.

Prior warnings from the health department will raise red flags. Keeping a clean record obviously minimizes the risk of causing a foodborne illness, but it also helps reduce the invitation of unwanted scrutiny, which can ultimately lead to a lawsuit. A health code violation is not simply a slap on the hand; it is a record that may invite litigation, and could be used in court to prove liability.

The lesson to be learned is that complying with the health code may be more important than most restaurant owners and managers think. Compliance not only decreases the risk for foodborne outbreaks, but it also decreases the risk of getting sued. When a mistake happens and a health code violation is found, it is imperative to treat the finding seriously, immediately correct the problem and document the correction.

Should the violation be later used in a lawsuit, evidence the problem was corrected can go a long way in disproving the cause of the illness, or at least defending against punitive damages.

A restaurant or foodservice establishment is not necessarily off the hook even when it does everything right. An end seller is strictly liable for its suppliers’ mistakes. For example, Walmart was recently sued in Colorado, along with a “john doe” supplier for selling salsa containing contaminated chili peppers. The peppers sickened more than 1,438 people across 43 states in what was called the Salmonella Saintpaul outbreak.

If the supplier cannot be found, the end-seller can be stuck with the bill. It is therefore imperative for end-sellers to keep records of who supplied ingredients in case it is necessary to bring a supplier into a lawsuit. Good record keeping also applies to repairs of refrigerators, dishwashers and other devices that protect customers.

It is also important to have good insurance. Foodborne illness settlements can range from the low thousands where a plaintiff has few doctor bills or lost wages, up to more than $15 million, as was the case for a plaintiff injured in the well-known Jack in the Box E-coli outbreak.

General commercial liability policies will cover costs of defending a lawsuit and will also cover a plaintiff’s damages. But this may not be adequate. For example, a foodborne illness outbreak or a product recall can substantially impair a foodservice provider’s bottom line. Business interruption insurance covers against losses from temporary closures. Trade-name restoration insurance can help protect revenue streams lowered by adverse publicity from a foodborne illness outbreak.

Some foodborne illnesses are avoidable through good practices, which also help minimize scrutiny when lawyers search for a defendant. When illnesses do occur, insurance can save the day for everyone involved.



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