The nation’s largest foodborne-illness outbreak in perhaps a decade appears to be the result of contamination upstream in the supply chain, but operators still are likely to be caught up in a costly wave of lawsuits by consumers.
So say attorneys with experience on both sides of the courtroom in food-related liability litigation. As of last month, at least 50 victims were pursuing what potentially will be claims for high-dollar damages, and there were expectations that many more plaintiffs would be hiring product liability lawyers. Meanwhile, the lawyers were awaiting more details about the cause of a nationwide epidemic blamed on Salmonella Saintpaul, a rare but virulent strain that, as of late July, had sickened at least 1,294 people in 43 states and Canada since April.
An estimated 242 people were hospitalized, and the outbreak was a factor in two deaths, health officials said.
The U.S. Food and Drug Administration said a Mexico-grown jalapeño pepper from a Texas distribution plant tested positive for Salmonella Saintpaul, providing a clue in the months-long investigation. Researchers were in Mexico looking for the source of the contamination and tracing where the tainted product was sold, though the FDA said U.S.-grown peppers were not to blame.
The McAllen, Texas-based distributor, Aricola Zaragoza Inc., sold 35-pound crates and 50-pound bags of the peppers bearing no brand name or label, making a recall difficult.
Throughout the outbreak, investigators said restaurants were involved in clusters of sickened consumers, if only because the eateries may have served tainted produce unknowingly.
In Charlotte, N.C., restaurateur Frank Scibelli said sales fell 20 percent in the week following a news report that his Cantina 1511 restaurant was under investigation, even though health officials gave the restaurant an all-clear.
Government epidemiologists said the upscale Cantina 1511 had been listed in the seven-day food histories of four sickened guests. To aid the investigation, Scibelli allowed researchers to survey past guests using credit card records, which tipped off local reporters. Because jalapeños appear to be to blame, he believes his restaurant was not the source of anyone’s illness. Cantina 1511 rarely uses raw jalapeños, and those used are grown locally, he said.
“It would be very hard to prove it came from my facility,” he said. “But in this sort of survey, you’re guilty because you’re being investigated.”
Federal officials urged all Americans to avoid eating raw jalapeños and serrano peppers, later narrowing the advisory to peppers grown, harvested or packed in Mexico, and restaurants across the country stopped using the peppers in fresh salsas and other dishes or began cooking the peppers.
Only weeks before, many restaurants had pulled certain types of tomatoes from their menus when federal officials said that vegetable might have been to blame for the outbreak. All tomatoes still on the market later were declared safe, though investigators say tomatoes were not fully exonerated as a possible cause.
Meanwhile, about 50 people who had been stricken by Salmonella Saintpaul already had hired attorneys as of late July, including foodborne-illness specialist William Marler of Marler Clark LLP in Seattle. Typically, the illness causes diarrhea, fever and cramps, but potentially lethal infections can occur.
Marler wasn’t convinced jalapeños alone were to blame. In coming weeks, he said, the distribution chain will yield clues and investigators will begin to “connect the dots,” he said. “Then we will start to see lawsuits,” Marler said.
“My personal preference would be to sue where the smoking pepper, so to speak, was found, but grocery stores and restaurants that sold the product will likely be involved.”
State liability laws vary, but in most states the seller of a contaminated product carries some liability if there is sufficient evidence that a consumer was made sick by it.
“A lot of attorneys will make it simple and sue the restaurant,” said John Hall, a foodborne-illness defense attorney with Eckert Seamans Cherin & Mellot in Pittsburgh. “They don’t have to go any further up the supply chain” to find a defendant with the ability to compensate a victim.
“A lot of times, the ‘deepest pocket’ is the restaurant,” Hall said.
However, because most restaurants have contracts with vendors requiring certain food safety standards, a restaurant operator targeted by a lawsuit would likely turn around and sue its supplier or a manufacturer, depending on where the contamination occurred, to recoup what was paid out in settlements, and to recover sales losses that resulted from the contamination.
That was the case in 2003 when about four dozen people fell ill in an outbreak of E. coli 0157:H7 linked to the San Diego-based Pat & Oscar’s chain. Investigators later blamed bagged, pre-washed lettuce that was delivered to the restaurants and marked as “ready to eat.”
Pat & Oscar’s settled the more than 50 claims from consumers for medical bill reimbursement, lost wages and other damages, for a total of about $3 million, said Fredric Gordon, Pat & Oscar’s attorney in the case.
The chain then successfully sued supplier Gold Coast Produce of Oxnard, Calif., and the companies that grew, harvested, packed and shipped the lettuce, recouping about $6 million. However, the chain’s overall losses were estimated to be more than $10 million, including the settlement costs, Gordon said.
In many cases, actual lawsuits are never filed, said defense attorney Livia Langston, also of the Eckert Seamans firm. A plaintiff’s attorney might seek damages through mediation, she said, which could allow the restaurant operator to settle without risk of being publicly named in court and with no admission of liability.
Most foodborne-illness cases are settled before trials, and verdicts in court are rare. Marler, for example, said he represented 105 people who fell ill during the E. coli outbreak traced to fresh spinach in 2006, and almost all of those cases have been settled. The grower and manufacturer in those cases resolved claims, he said. Restaurant companies were not targeted.
Marler noted that even in a huge foodborne-illness outbreak, attorneys would not likely seek class-action status because individual losses can vary greatly.
“Class action really only works when everybody lost the same thing,” he said.
Defense attorney Hall urged restaurant operators not to ignore consumers’ claims of being sickened after eating at their establishment.
“Ignoring it is what gets you sued,” he said, adding that a restaurant operator’s primary defense tool is documentation.
Maintaining invoices and traceback documents can be crucial when the timing of shipments is called into question.
“If you don’t know where your produce is coming from, you’re sunk,” Hall said.