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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