Personal Injury Food Poisoning
Brien Roche
On December 15, 2010 the Center for Disease Control and Prevention reported that one in six people in the U.S. get sick from food illness every year. Nearly 3,000 people die from such illnesses each year. Although these figures are lower than what was noted in 1999 that does not mean that things are getting better.
Salmonella Food Poisoning
The most common form of food poison is salmonella. This causes nearly 28% of the deaths. In addition it causes a high percent of the need for hospital visits based on food issues.
Forty-eight million people in the U.S. get sick from food each year. Of that, 9.4 million become ill after eating food that is tainted by a known bacteria or other bugs. The remaining 38 million victims are poisoned by unknown bugs.
FDA Action
On January 5, 2013, The Washington Post reported that the U.S. is putting out new rules for makers of food products. The intent is to prevent food borne illness.
Not covered by the new rules are a number of fruits and veggies that are consumed only after being cooked or canned. That cooking and canning process cuts down on the chance of the food being bad.
The new law gives the FDA power to order recalls of products. In addition it will have the power to look at records of farms and plants that are making the food.
In addition more proposed rules are expected that will require that imported food comply with US standards.
Over the years there have been many cases of wide spread illness due to tainted food. This includes peanut butter, spinach, lettuce, peppers and others. Call, or contact us for a free consult.
Personal Injury Food Poisoning From Cheese
Food poisoning from cheese has caused the FDA to focus on the makers of raw milk cheese. Most raw milk cheese is made by cheese makers that are known as artisanal cheese makers. They tend to make their cheese by hand. It is made in small batches following practices that are many years old. The cheese is made from raw milk. However it is not heated.
That lack of heating presents some issues as it eliminates one step in the “kill step” process of making cheese. The heated milk tends to kill many bugs. Hence the lack of that “kill step” means greater risk. Consequently to address that issue U.S. law from 1949 requires that the cheese made from raw milk be aged for at least 60 days. This is on the theory that that time is long enough for the acids and salts in the cheese to kill off these harmful bugs.
Listeria
However listeria and other bacteria can survive in cheese beyond the 60 day period. At this point, the FDA has taken a more focused posture in terms of inspecting these small cheese makers. In one case it seized the cheese products made by one family farm.
The FDA has a zero tolerance rule for listeria. Listeria is very common. Any cheese that has listeria in it cannot be sold. However some countries such as France do have some limited tolerance for listeria in food.
Personal Injury Food Poisoning-Sources
Food poisoning can come from many sources. E.coli is in most cases harmless. There are some strains of it that live in cattle intestines. This can cause bleeding and sometimes kidney failure. However the E.coli taint is tough to trace. The toasting of hamburger buns on a grill that is next to cooking hamburger patties can be the cause of E.coli taint. In addition storing raw meat near other food can result in taint from the meat juices dripping onto the other food. Use of raw eggs is a common source of salmonella. Lack of cooking of chicken or turkey can allow salmonella to remain in the food. Call, or contact us for a free consult.
Personal Injury Food Poisoning-Legal Theories
These cases are pursued on both a breach of warranty basis and negligence theory. The breach of warranty is the failure to deliver or serve the product in a form for which it is reasonably expected to be used. The expected form is healthy and without taint. The negligence may exist in the storage, preparing or cooking the food. You need to review the standards that apply to each stage of the process. Then you should look at whether those standards were complied with.
The breach of implied warranty may be the stronger theory of law. The implied warranty is a warranty of the food being wholesome. This applies to any seller of food. It could be either at the retail or wholesale level. The product may be in a closed container. Sometimes you must sue everybody in the chain of sale in order to be certain that all bases are covered. That would mean suing not only the retailer but also the distributor and the maker.
In addition prompt notice to the local health office is a must. They need to conduct their own inquiry.
Causation
Proving the link between the illness of the client and the food prepared may not be easy.
Food poisoning cases may require proof from a doctor who confirms that the plaintiff had symptoms caused by food poisoning. In one reported case the plaintiff complained that the meat that she had eaten didn’t smell right. The person in charge of the restaurant admitted that he told the cook not to use that meat. Also the plaintiff’s treating doctor stated that the symptoms she had were caused by food poisoning. Hence the trial court correctly concluded that this was enough to make out a case of negligence and/or breach of implied warranty.
Defenses
In cases where a foreign substance is found in a container such as a bottle of soda then that claim is premised on the bottle not being tampered with.
The defendant in food poisoning cases may try to prove the absence of other complaints about that food. That should not be relevant. Likewise it should not be admitted if properly objected to.
Contact a Trusted Personal Injury Attorney for Help With Your Case
Call, or contact us for a free consult. Also for more information see the pages on this site dealing with product liability and the pages on Wikipedia.