Food Poisoning Law Blog

Article written by Fred Pritzker

We represent people injured by unsafe food products, usually containing foodborne pathogens such as E. coli O157:H7, Listeria, Salmonella, Shigella, or Hepatitis A.

As part of our service to the public, we’re asked to evaluate potential foodborne illness cases. Here is some information about how food safety lawyers prove foodborne illness cases.

In order to prove a case of foodborne illness, the injured person has to prove the following three elements: 1) the food product was defective, 2) the defect caused illness, and, 3) the person suffered damage as a result of that defect.

A food product is defective, according to the definition used in many states, “if an ordinary consumer would not reasonably expect the food product to contain the substance that caused the harm.”

Since food consumers do not expect the food they eat to contain injurious or lethal pathogens, satisfying the first element of foodborne illness proof is usually not difficult.

Some states, however, do not follow the “consumer expectation” test and require proof of food “adulteration.” That term is usually defined as follows:

• It contains an added poisonous or deleterious substance that may make the food injurious to health, or that is not necessary for food production.
• It contains enough of a poisonous or deleterious substance (added or not) to make the food normally injurious to health.
• It contains any added substance that is considered “unsafe” under the Federal Food, Drug and Cosmetic Act, or that is present at levels considered “unsafe” under the federal act. The federal Food and Drug Administration publishes a list of substances “generally recognized as safe” (the GRAS list), but a substance is not necessarily considered “unsafe” merely because it is not included on the GRAS list.
• It contains any diseased, contaminated, filthy, putrid or decomposed substance or is otherwise unfit for food.
• It has been produced, prepared, packed, or held under unsanitary conditions that may have caused it to become contaminated, diseased, unwholesome or injurious to health.
• It is the product of a diseased animal, or an animal that died other than by slaughter.
• Its packaging contains any poisonous or deleterious substance that may make the food injurious to health.
• The seller misrepresents the food contents, directly or by implication.

As a general rule, any food contaminated with a foodborne pathogen (e.g. E. coli O157:H7, Shigella, Listeria, Salmonella, etc.) is considered adulterated.

In foodborne illness litigation, the much more difficult element of proof is “causation”: Is the suspected food product the actual cause of the victim’s illness?

In order to prove causation, the first step is to identify the actual foodborne pathogen responsible for the victim’s symptoms. Put another way, identifying foodborne illness symptoms is not enough; in most cases, one has to prove the specific foodborne pathogen responsible for a client’s symptoms. The following example illustrates the point.

If you were injured in a car accident and wanted to sue the driver responsible for the crash, you would have to prove more than just that a car hit you. You would need to identify the make, model, color, year and serial number of the car as well as the vehicle’s owner. So it is with foodborne pathogens. You first have to nail down the specific foodborne pathogen responsible for your illness. This is done through testing, usually of the victim’s stool, blood or other bodily fluids. Thus, when you are sick enough to require medical treatment, insist that the doctor order appropriate tests to identify the particular foodborne pathogen responsible for your symptoms. This should ideally be done before antibiotics are prescribed. That’s because antibiotics may often kill off the pathogen before it can be identified.

Knowing the exact pathogen responsible for your symptoms also helps us to know when you likely consumed the food that caused your illness. Here’s how: all foodborne pathogens have incubation periods, the time from when you ate the food to the time when your symptoms first appear. By knowing when you ate the food we have a better idea of where it came from.

Foodborne pathogens have different incubation periods – from hours to weeks. For example, in the case of E. coli O157:H7 the incubation period is two to eight days (average of 3-4). Thus, if your testing confirms you have E. coli O157:H7, the food that caused it was probably eaten days, not hours, before your symptoms first appeared.  On the other hand, the incubation period for Hepatitis A is an average of one month.

Identifying the particular pathogen responsible for your illness is only the first step. The next step is to trace back the pathogen to the particular food product or source that you consumed. That is often done through a combination of microbiology and epidemiology.

The microbiological proof consists of the tests run on the stool or blood sample that was taken while you were in the hospital. Those tests involve various levels of refinement and specificity. First, the sample is tested generally to see if it contains a pathogen. For example, in the case of a stool sample suspected of harboring E. coli O157:H7, the sample may be tested to see if it contains the poison responsible for illness, shiga toxin. However, this test is not refined enough to test for the presence of actual E. coli O157:H7, so another series of tests are administered to establish that it is both E. coli and O157:H7. However, even such further testing is not enough to show whether the E. coli O157:H7 is actually the same strain (genetic fingerprint) of the E. coli associated with a particular outbreak. For that to happen, even further and more refined testing usually has to be done consisting of a test called PFGE, pulsed-field gel electrophoresis. This test is done by cutting up the pathogen’s unique genetic code and arranging it in a way that can be read and compared with other samples that may be related to the same outbreak. If PFGE patterns match, it suggests that various unrelated individuals may have been infected by a common source.

Identifying the particular pathogen and its unique genetic fingerprint is critically important, but it’s not the only proof of causation necessary to win the case. For that, you have to know about the science of epidemiology.

Epidemiology is part detective work and part statistical analysis. It involves trying to piece together potential sources (stores, restaurants, and food products as well as water and animal exposures) and determine if they are the source of the illness that the microbiologists were able to identify. 

Epidemiologists develop and test hypotheses to determine if there is a common link between the people with the same foodborne illness. They question foodborne illness patients in order to determine if they ate at the same place, ate the same food, got sick at the same time, lived in the same area, etc. They also visit suspected outbreak sources and do further testing. By a process of elimination, epidemiologists rule out other sources until they can settle on a common link. The net result of the microbiological and epidemiological investigation, if successful, is the same foodborne illness with the same genetic fingerprint in patients who ate the same food, at the same time, in the same location and got sick at the same time. Only then is “causation” proved.

Proof of causation often depends on reports of foodborne illness being received by local and state health department officials. Simply put, health department authorities cannot investigate foodborne illness outbreaks if they don’t know about them. Therefore, if you suspect you have symptoms of foodborne illness, you should contact the health department in your area and report your suspicions.

The final element is damages – proving what harm resulted from the particular foodborne pathogen responsible for the outbreak. In serious foodborne pathogen cases like E. coli O157:H7or Listeria, that’s usually not a problem because, tragically, most people with these pathogens suffer serious illness with significant medical bills, long-standing illness and even death. Comparatively less serious foodborne illnesses like Salmonella or norovirus may cause short term illness but usually not longstanding problems. Thus, an economic calculation enters the decision making: are the damages serious enough to justify the time and expense of pursuing a foodborne illness case. Because these cases are costly and involve several experts, lawyers like us have to be sure that the damages from your foodborne illness justify the time and expense of pursuing it.   

As you can see, the elements of a foodborne pathogen case are complex and often difficult to sort out. That is why food safety lawyers have to ask a lot of questions and need to have a great deal of experience in order to determine what constitutes a “good case.”

In summary, here are steps to follow if you believe you suffered a foodborne illness:

• If you believe you have symptoms from foodborne illness, go to the doctor.
• Ask the doctor to perform the appropriate test to discover whether your illness is due to a foodborne pathogen. This testing should be done before any antibiotics are administered.
• If your symptoms and/or test results suggest foodborne illness, report it to your local or state health department.
• Collect and save any evidence of purchase of the defective food product. For example, save receipts, credit card slips, frequent shopper cards, empty food cartons, etc.
• Collect and save any evidence of food consumption. For example, if you have unopened packages with the same lot number, or if there is left over adulterated food, make sure it is sealed, segregated from other food, and saved in an appropriate manner (e.g., freezing).

Pritzker | Ruohonen & Associates, P.A. represents foodborne illness survivors in cases throughout the United States. Call us toll-free at 1-888-377-8900 or email us at fhp@pritzkerlaw.com if you would like a free consultation about your case.