Food Poisoning Law Blog

Health officials from the Sarpy County Health Department and the Nebraska Department of Health and Human Services are investigating an E. coli outbreak associated with roast beef eaten at a private event at a Sarpy County reception hall on March 26, 2008.  Leftover roast beef from the event tested positive for E. coli. 14 people who attended the event have also tested positive for E. coli. Four people were hospitalized. E. coli infections can lead to hemolytic uremic syndrome (HUS). For privacy reasons, health officials are not providing information on the medical conditions of those sickened, other than that everyone hospitalized has now been released. We support this decision.

We contacted The Sarpy County Health Department and spoke with Director Dianne Kelly. She stated that health officials are waiting for additional test results to determine if the E. coli serotype involved is O157:H7. DNA testing is also being done, which will provide genetic fingerprints of the E. coli.  These genetic fingerprints will be analyzed to determine the connection between the E. coli found in the roast beef and the E. coli that  sickened the 14 people. 

The roast beef was implicated in this outbreak due to the positive E. coli test and an analysis of lists and charts of what people at the event ate, according to Kelly. 

The roast beef was prepared at a person’s home and brought to the Sarpy County event. Health officials are still investigating how the beef got contaminated with E. coli. The U.S. Department of Agriculture is attempting to determine the producer of the beef, an important step towards prevention.

Pritzker | Ruohonen is a national law firm with extensive experience in the area of E. coli litigation.  To contact an E. coli lawyer at our firm, please call 1-888-377-8900 (toll-free), email our E. coli attorneys or submit our free case evaluation form.

At the public meeting held by the USDA’s Food Safety and Inspection Service, plans were announced to begin testing for non-O157 Shiga Toxin-Producing E. coli, or non-O157 STECs. The announcement comes in response to the growing amount of outbreaks associated with E. coli.  Although most dangerous outbreaks, especially among beef, are related to E. coli O157:H7, non-O157 STECs can pose just as many problems to the food industry. The USDA does not currently collect any data to track non-O157 STECs, so the testing will be done primarily to study the bacteria and collect as much data as possible.

The new testing procedures will be done primarily for collecting data. As of now, the USDA does not plan on declaring non-O157 STECs as adulterants like O157:H7, but will use the data collected to determine that at a later date.  The USDA will test samples that tested positive for O157 and also those that did not.  No recalls will be issued by the USDA if a sample tests positive only for non-O157 STECs.

Samples will be tested for six different strains: 026, 0111, 0103, 0121, 045, and 0145. These strains have been shown to cause the greatest number of illnesses among non-O157 STECs.  If the USDA declares these strains as adulterants after collecting data, products contaminated with they will undergo the restrictions applied to O157:H7.  According to Meatingplace, the USDA has prepared the following checklist if non-O157 STECs are labeled as adulterants:

• define applicable products from slaughter/dressing and further processing operations
• issue a Federal Register Notice in the form of an interpretive rule
• establish an effective date that ensures sufficient time to address seamless implementation for both domestic and imported products
• issue compliance guidelines
• issue policy implementation instructions and train FSIS inspection personnel
• conduct outreach to the regulated industry

Foodconsumer.org provided information from FoodNet showing that the number of cases and incidence per 100,000 population in 2007 for non-O157 STECs were 260 per 100,000, or .57%.  The incidence for O157 STECs was 1.20%. However, CIDRAP has stated that states such as Virginia and Idaho (not part of FoodNet) have shown that the prevalence of non-O157 STECs is already equal or greater than the prevalence of O157:H7. This information provides raw numbers, showing that non-O157 STECs are almost as big, if not bigger, a problem as O157 STECs.

A study on PubMed shows that even if non-O157 STECs aren’t as prevalent as O157, they may be just as dangerous.  After examining 940 non-O157 cases of human illness between 1983 and 2002, researchers discovered that the six strains the USDA will be focusing on are indeed the most prevalent in human illness. The data also showed that many of the bacteria were producing Shiga toxin 1 and Shiga toxin 2.  Shiga toxin 2 had a strong association with causing hemolytic uremic syndrome (HUS). According to the data, the 0111 strain caused the most cases of HUS and also caused 3 outbreaks reported in the United States.

Much of the danger associated with E. coli O157:H7 involves its ability to cause HUS, which can often be fatal.  Research shows that non-O157 STECs can also cause HUS, making them just as dangerous as O157:H7.  Non-O157 STECs also contained genes for intimin, which has been shown to increase the risk of bloody diarrhea.  These are serious symptoms, which pose a great health risk to consumers.  More research and the new plan from the USDA to test for these bacteria can only help to better understand illness rates and to better protect the American consumer.

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In order to address the increasing prevalence of E. coli 0157:H7 in the nation’s food supply, the USDA’s FSIS has announced plans to hold a public meeting to discuss recalls and illnesses related to the deadly E. coli strain. The meeting will be held on April 9 and 10, and will include FSIS and CDC officials, legal representatives, and representatives from the food industry and consumer groups.

"The last significant positive changes in the reduction of foodborne illness and positive product tests attributed to E. coli O157:H7 occurred early in this decade but we have since hit a plateau. It is time for another series of bold, strong moves based on knowledge and science to produce further significant reductions in illnesses attributed to the products we regulate," said Under Secretary for Food Safety Dr. Richard Raymond. "We aim to prevent and not just respond to illnesses, and consumers, industry and our public health partners are critical partners in our long term strategy and we look forward to our continuing collaborative relationship to ensure food safety."

Not only will the meeting discuss the challenges associated with E. coli 0157:H7, but also non-0157:H7 Shiga Toxin-Producing E. coli (STEC).  Discussions will be held to provide an aim for regulating STEC in products under USDA jurisdiction. The meeting will focus on the 0157:H7 strain as it relates primarily to beef products, due to the increased number of beef recalls because of the bacteria.  FSIS will also discuss a checklist of beef suppliers in order to improve inspection procedures to catch contamination before it reaches the level of a massive recall.

Meeting participants and panelists will represent government, industry, academia and other constituencies to discuss research progress and potential solutions for moving forward in controlling E. coli O157:H7. There will be multiple opportunities for public comment and questions on both
days.

The 2008 International Conference on Emerging Infectious Diseases discussed the growing number of foodborne illnesses related to vegetables, mainly leafy greens. It has been thought that the increase of leafy greens in the average American’s diet has led to the increase in disease related to those foods; however, data analyzed at the conference suggests something entirely different.

Michael Lynch of the Centers for Disease Control and Prevention (CDC), said, according to EurekAlert!,

“During the 1986-1995 period U.S. leafy green consumption increased 17% from the previous decade. During the same period, the proportion of all foodborne disease outbreaks due to leafy greens increased 60%. Likewise during 1996-2005 leafy green consumption increased 9% and leafy green-associated outbreaks increased 39%,” says Lynch.

Outbreaks recently have been located in E. coli contaminated spinach and lettuce and other various greens. Only 9% of all outbreaks related to leafy were greens, however, were due to E. coli. Salmonella was responsible for 10% of outbreaks, but the major contributor, norovirus, accounted for 60% of leafy green outbreaks.

Although the data shows that the increase of foodborne outbreaks related to leafy greens is not caused solely by the increased consumption of that type of food, researchers and officials still cannot account for the increase.

“The proportion of outbreaks due to leafy greens has increased beyond what can be explained by increased consumption. Contamination can occur anywhere along the chain from the farm to the table. Efforts by local, state and federal agencies to control leafy green outbreaks should span from the point of harvest to the point of preparation,” says Lynch.

When referring to the dangers of E. coli infection, the potentially lethal 0157:H7 strain often creates the biggest clout because it can lead to a very dangerous condition called Hemolytic Uremic Sydrome (HUS).  HUS is characterized by damage and destruction of the red blood cells, which leads to a lower-than-normal number of red blood cells (a condition called anemia), blood clots, and damage to blood vessel walls. In the most severe cases, HUS can include damage to the kidneys, which can lead to failure of the kidneys (renal failure). Other complications that can accompany the illness are thrombocytopenia (platelet deficiency in the blood) and neurologic signs, including irritability and, very rarely, seizures.

21-year-old Stephanie Smith contracted an E. coli infection that developed into HUS after eating a bad burger.  She was placed under a medically induced coma, but has since awakened from it. A story and video of Stephanie’s story can be found at KARE 11.  She was recently released from St. Mary’s Hospital in Rochester, Minnesota.

Kevin Mendoza of New Mexico came down with E. coli poisoning a few weeks before the spinach E. coli outbreak in July 2006, although they aren’t sure from where he contracted the bacteria. Three days after being admitted to the University of New Mexico Hospital, he was diagnosed with HUS and his kidneys failed.

According to the Valencia County News Bulletin,

Things quickly cascaded from bad to worse — Kevin's lungs filled with fluid, he developed pancreatitis, he required blood transfusions and daily dialysis. "We didn't know when it was going to stop," his mother (Carolyn) remembers.

After five weeks of ups and downs, Kevin's kidneys began functioning again, but they are scared and damaged. "Most kids do recover, but with the scar tissue we have a long road ahead," Carolyn said. "We are probably looking at a transplant at some point. The doctors can't say when because they aren't sure what his body will do."

Kevin is again at home and recovering.  He and his family are also doing all they can to help the hospital any way that they can. They are currently working with 100.3 The Peak to host a radiothon to benefit the hospital and to tell his story of battling with HUS.

The California Food Emergency Response Team (CalFERT) and the FDA have issued a final report of their investigation of the Escherichia coli (E. coli) O157:H7 outbreak associated with iceberg lettuce served at Taco John’s restaurants in Iowa and Minnesota. 

The final report suggests that the source of the outbreak may have been iceberg lettuce grown on Wegis Ranch in Buttonwillow, California. After initial traceback procedures led to Wegis Ranch, CalFERT began an environmental investigation of Wegis Ranch. 

CalFERT observed “2 dairy farms [Maya Dairy and West Star North Dairy] in close proximity to Wegis Ranch and its suspect lettuce growing fields” (page 12). The CalFERT team also “observed that the irrigation pipes from the Wegis Ranch equipment storage yard were stored approximately 50 feet from the cattle biosolids [composting manure] from West Star North Dairy” (page 15). Animal fecal material around the irrigation area was also observed.

In the course of the investigation, CalFERT learned that Wegis Ranch’s irrigation system was connected to both dairies and that Wegis Ranch sometimes irrigated with a blend of the dairies’ discharged wastewater and other water sources. Upon learning this, CalFert expanded its environmental investigation “to encompass a thorough assessment of the vicinity’s water distribution system and conveyances as a whole” (page 21).

When CalFERT assessed Wegis Ranch’s irrigation system, they made a “key observation”—“the farm irrigation system that utilized dairy runoff water did not have any backflow prevention devices to ensure manure-blended irrigation water did not contaminate the SWSD water system,” which was used to irrigate lettuce fields (page 23).

The following are details regarding the samples taken from the Buttonwillow area (Wegis Ranch, Maya Dairy and West Star North Dairy) from page 38 of the final report:

• Out of the 194 samples collected at the Buttonwillow location, 32 (16.5%) were positive for E. coli O157:H7.
• Of the 32 E. coli O157:H7 positive samples, ten (31%) were found to genetically match the Taco John’s outbreak strain.
• For of the ten specimens (that genetically matched the outbreak strain) were gathered at the two dairies, and the remaining six were collected at the Wegis Ranch.

We have recently filed a lawsuit on behalf of a victim of the Taco John’s E. coli outbreak that was the subject of the CalFERT investigation.  According to Elliot Olsen, lead attorney on the case, “These illnesses represent yet another breakdown in a system which seems incapable of protecting the public from contaminated food.  We believe there are other victims out there who have not yet come forward.”

To contact the firm, please call toll-free at 1-888-377-8900 or submit the firm’s free case consultation form.  You may also contact Elliot Olsen via email.

To read the full report, please click here.

Eight cases of E. coli have been associated with a church supper at Eastern Shore First Baptist Church. 5 of the 8 were hospitalized. One boy is still hospitalized.

According to the Press-Register:  

Out of approximately 150 people interviewed by the health department as of Monday morning, 20 said they were ill, Porter said. Eight cultures have tested positive for E. coli O157:H7, a strain of the bacteria that can cause severe illness, [according to Theresa Porter, a Baldwin County surveillance nurse coordinator for the Alabama Department of Public Health Porter].

Three patients -- ages 15, 74 and 81 -- were admitted to Thomas Hospital in Fairhope between Thursday and Saturday, said Diana Brewer, a spokeswoman for Infirmary Health System, which operates Thomas. All were discharged by Sunday, she said.

Three others -- ages 10, 11 and 11 -- were treated for the bacteria with fluids and released, or referred to the hospital for lab work by a local physician.

Porter and Wilson [Ken Wilson, associate pastor of the Daphne church] said it may be difficult to identify the exact source of the bacteria because of the wide variety of food served at the event. Some of the food was prepared and brought to the dinner, while some people donated meat to be cooked for the event, Wilson said.

To read more about the Alabama E. coli outbreak linked to Eastern Shore First Baptist Church, click here.  

The International Association for Food Protection has released a series of presentations dealing with a growing concern among the frozen food industry to address the risks of microwavable foods.  Frozen foods have been the target of many recent foodborne illness outbreaks, including the Jeno’s and Totino’s frozen pizza E. coli outbreak and the Banquet Pot Pie Salmonella outbreak.

At the forefront of addressing the issue of microwavable foods is the American Frozen Food Institute (AFFI), which has undertaken various measures to eliminate risks associated with frozen foods.  (Lawsuit prevention is most likely the reason for the AFFIs renewed interest in educating consumers about microwave safety.  Interestingly, food manufacturers commonly defend foodborne illness claims by arguing that it was the consumer's fault for not cooking the product correctly.)

AFFI has developed a guide entitled “Cooking with Microwave Ovens, Nutrition and Food Safety Considerations” which offers consumers ways to prepare nutritious meals with a microwave oven.  AFFI has also been working with microwave manufacturers and various organizations to develop better labeling for microwavable products to account for various power ratings and options on the ovens.

Not-ready-to-eat (NRTE) foods pose one of the biggest concerns to safe microwaving, because if not cooked properly, they are not completely safe to consume and may contain foodborne pathogens.  A group from the Grocery Manufacturers Association has developed guidelines to validate cooking instructions on NRTE foods to make sure that when cooked following the instructions, the food is safe to eat.

The greatest concern about providing the safest cooking instructions revolves around issues with microwave technology itself, and its incapacity to provide uniform heating throughout food.  Uneven cooking allows for hot and cold spots within the food.  It also allows for the failure to inactivate certain pathogens in the food.  Most research shows that heating in microwaves is the primary mode for the inactivation of pathogens, so it is quite important to solve the problem of uneven cooking.

The presentations address a variety of areas that affect uneven heating:

• Non-uniform distribution of dipolar molecules and ionic materials within the food.

• Differences in microwave absorption of frozen/thawed areas.

• Product/component edge heating effects.

• Areas of high and low microwave field strength within the oven cavity and product.

• Different food component and thermal properties.

There are many ways to improve the safety of microwavable products, and doing so will greatly reduce the risk of outbreak of foodborne illnesses related to these products.  As is shown, there is much research and thought going into the betterment of these products to ensure safer products for consumers to prepare.

Concern over global warming has pushed research to developing cleaner fuel resources, one of which includes using ethanol as a fuel additive. The ethanol industry has in turn driven up the price of corn for cattle producers to use as feed. Distillers grain, a byproduct of ethanol, can be used as cattle feed and is much cheaper compared to corn. But as recent years have seen the increase of the use of distillers grain, last year marked a record for the most beef recalls due to E. coli 0157:H7 contamination, including the largest in U.S. history, the Topps Meat recall.

The possible correlation between distillers grain and E. coli 0157:H7 has spawned a great deal of research.  According to the Des Moines Register,

Researchers at Kansas State University noticed the possible E. coli connection to distillers grains in 2005. A second study found a twofold increase in E. coli levels in cattle fed the product compared with those that ate only corn. Research at the University of Nebraska showed mixed results. Cattle fed a diet comprising 10 percent to 30 percent distillers grains actually had lower rates of E. coli than cattle on a diet of all corn. But cattle fed 40 percent to 50 percent distillers grains showed higher E. coli rates.

Currently, the U.S. Animal Research Center in Clay Center, Nebraska is conducting an experiment to test a possible link between the grain and the bacteria.  The center is unique in that it has the capability of conducting large scale experiments to test on cattle.  According the Associated Press,

The research involves 600 cattle. Half are being fed a traditional grain feed and half are being fed distiller's grain. The research will wrap up in June after the cattle have been sold for slaughter and samples of their carcasses have been collected.

The cattle fed with distillers grains receive a diet of 40 percent distillers grains.  The research will be a valuable insight into both the beef and ethanol industry. The study hopes to gain a greater understanding of E. coli 0157:H7 so that its dangerous effects can be prevented. The bacteria can cause stomach cramps and diarrhea that may turn bloody within one to three days.  It can also be lethal to the elderly, children, and those with weak immune systems.

The Florida Department of Agriculture has recalled cheese from a Miami based company due to an E. coli contamination according to CBS 4 in Tallahassee. Samples were collected from Santa Rosa Cheese’s warehouse in Miami revealing that the manufacturer’s Naturally Aged White Cheese was contaminated with E. coli.

Tests showed that the cheese was contaminated with a generic strain of E. coli and not the potentially dangerous E. coli 0157:H7. The affected products bear the codes 565 and 589 which come in various different packaging. Stores selling the contaminated cheese are asked to return it to the manufacturer, whereas consumers should return the cheese to the store of purchase.

Six cases of E. coli O157:H7 have been associated with ground beef produced by Rochester Meat Company, a Minnesota firm. In response to this E. coli outbreak, the firm has recalled about 188,000 pounds of ground beef products due to possible contamination with E. coli O157:H7. 

This outbreak was discovered through an investigation initiated by the Wisconsin Department of Health and Family Services and the California Department of Public Health into the six cases of E. coli O157:H7, five in Wisconsin and one in California.

According to a USDA-FSIS announcement, the recalled Rochester Meat Company ground beef products were produced on October 30, 2007, and November 6, 2007. They were shipped to distributors nationwide for further distribution to restaurants and food service institutions. These products were not available for purchase by consumers in retail establishments.

If you or a loved one is experiencing symptoms of E. coli poisoning—bloody diarrhea, abdominal cramping, nausea, and sometimes mild fever and vomiting—get medical attention. E. coli poisoning can lead to hemolytic uremic syndrome (HUS), a life-threatening illness that can cause kidney failure and damage to other organs. Getting medical attention is also important for legal reasons. Ask your doctor to test specifically for E. coli O157:H7.

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Dee Creek Farm has paid a fine from the state of Washington, ending their E. coli outbreak, according to The Daily News. The farm, located in Woodland, Washington, was the center of a Dec. 2005 E. coli outbreak which sickened 18 people. 

Unpasteurized milk sold by Dee Creek was contaminated with E. coli, leading to the hospitalization of five children, leaving two in critical condition. When the state investigated the farm, they found various violations, including lack of a dairy license and failure to test animals for diseases. The state fined Dee Creek Farm $8000 for the violations.

According to The Daily News, Anita and Mike Puckett, owners of Dee Creek, stated that a dairy license was not needed because they did not directly sell cow milk. The Pucketts appealed the $8000 fine, but before the appeals hearing, they agreed to pay the fine. The Pucketts still claim innocence in the matter, but the state says that paying of the fine shows guilt. The Washington Legislature has since clarified matters dealing with dairy licenses.

The USDA’s Food Safety and Inspection Service (FSIS) has launched an upgraded protocol for testing E. coli 0157:H7 in raw beef, according to Cattle Network. Effective on Jan. 1, the new testing program is largely a response to the Topps Meat recall of Fall 2007.

Under the new program, FSIS will consider establishment volume and any positive tests for E. coli 0157:H7 at the establishment in the past 120 days. FSIS inspectors will take frequent samples, ranging from 4 to 24 samples annually.

The Topps recall was one of the largest beef recalls in U.S. history and has forced FSIS to drastically change procedures to prevent massive recalls in the future. On Oct. 23, 2007, FSIS released a strategic plan to combat E. coli 0157:H7. The plan called for testing and analysis of trim, a new checklist for verifying control, testing more domestic and imported ground beef components, more rapid recalls, routine testing, and ensuring the safety of imported beef. FSIS also promised greater working cooperation with federal partners, small plants, stakeholders, and public health partners.

Pritzker | Ruohonen, a leading foodborne illness litigation law firm, is investigating cases of E. coli 0157:H7.  The firm has a national reputation and has recovered millions for victims of foodborne illness.  To contact the firm, please call toll-free at 1-888-377-8900 or submit the firm's free case consultation form.

According to a USDA-FSIS announcement, Snapps Ferry Packing, a Tennessee firm, has voluntarily recalled approximately 102 pounds of hamburger patties and bulk ground beef that may be contaminated with E. coli O157:H7.

The products subject to recall are:

• 4-pound packages of "GROUND BEEF PATTIES."
• Various weight bulk packages of "GROUND BEEF."

Each product subject to recall bears the establishment number "Est. 9085" inside the USDA mark of inspection as well as a "PACKED ON" date of "DEC.11.07" or "DEC.12.07."  The labels have “Packaged by Snapp Ferry” on them (see label right).

The products were sold at the Snapp Ferry retail counter in Afton, Tenn., on Dec. 11 and 12, 2007, according to the USDA-FSIS announcement. Because the incubation period for E. coli is generally between 3 and 8 days, people who have eaten the recalled Snapp Ferry ground beef or hamburger patties should watch for symptoms of E. coli O157:H7 poisoning, including severe abdominal cramping, nausea and bloody diarrhea.

The problem was discovered through routine USDA-FSIS testing. USDA has recently begun to enter data about E. coli isolates found in recalled meat into the PulseNet database, a database maintained by the CDC of the genetic fingerprints of pathogenic foodborne bacteria, including but not limited to E. coli, Listeria, Salmonella, and Shigella.  This information is used to help uncover multi-state foodborne outbreaks and to prevent future outbreaks.

USDA-FSIS has received no reports of illnesses associated with consumption of the recalled Snapp Ferry hamburgers or ground beef, but this could be due to the meat being recently sold and the long incubation period of E. coli O157:H7.

Kentucky and federal health officials are investigating the death of a Knox County woman, Vickie Shelton, who died last week. Health officials believe Ms. Shelton had an E. coli infection.

According to a story in the Times-Tribune, “Officials at the U.S. Department of Heath in Fayette County are testing samples of ground beef Shelton had reportedly consumed prior to becoming sick.”

Given that over 28 million pounds of ground beef have been recalled this year due to possible contamination with E. coli O157:H7, it is likely that the ground beef is the source of the illness.

We will continue to monitor the situation.

Over the holiday weekend the USDA-FSIS announced the recall of 95,925 pounds of ground beef produced by American Foods Group, LLC, that may be contaminated with E. coli O157:H7. The recall is linked to an investigation into two illnesses by the Illinois Department of Public Health.

The affected ground beef was processed at an American Foods Group plant in Green Bay, Wisc., on October 10, 2007 and was sent to retail stores and distributors in Indiana, Kentucky, Maryland, Ohio, Tennessee, Wisconsin, and Virginia.

The shipping label bears the establishment number "Est. 18076" inside the USDA inspection mark, but that information won't help consumers know if they have the recalled product in their freezers, because the recalled ground beef was further processed and repackaged. The USDA is urging consumers to contact retailers to ask if they received any of the recalled products.

According to the CDC, an E. coli O157:H7 case in Nebraska is part of the E. coli outbreak associated with Jeno's and Totino's pizza.  This makes 23 confirmed cases.  Because about 5 million Jeno's and Totino's pizzas were recalled and the "best if used by" date is April 2008, there will probably be more confirmed E. coli cases associated with this outbreak.

We have been contacted by a number of people who became ill after eating a Jeno's or Totino's pizza but did not go to the doctor.  For medical and legal reasons, it is important to get medical attention if you are suffering from E. coli symptoms.  Attorney Fred Pritzker has written valuable information on foodborne illness and medical treatment.

If you have been diagnosed with an E. coli infection, you need an attorney with experience in this area.  Please read our information on how to hire a foodborne illness attorney.  To contact an E. coli lawyer at our law firm, please call toll-free at 1-888-377-8900 or submit the firm's online consultation form.

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.

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