The Marler Clark attorneys are constant advocates for food safety. All of our lawyers have published articles and opinion-editorials on the topic of food safety or food safety litigation. Read published articles written by or about the lawyers at Marler Clark:
Attorney Drew Falkenstein wrote “Raw Milk” An Issue or Safety or Freedom” for the April 2013 issue of the Journal of Environmental Health. In it he asks, “Is there any one food that is as frustrating as raw milk? Is there any other food that is a subject of so much passion, politics, and attempted persuasion? Have you ever wondered whether sale of the product could simply be outlawed entirely—or, for that matter, legalized everywhere?”
In the September 2012 issue of the Journal of Environmental Health, Colin Caywood writes, “While every state law is different, environmental health specialists should feel comfortable in carrying out their job duties knowing that they have legal authority to perform their inspections and that refusal of access by a regulated entity has firm legal consequences.”
Patti Waller’s article in the June, 2012 Journal of Environmental Health focuses on what environmental health professionals need to know about depositions in the event that they are required to appear and testify as a witness in a foodborne illness lawsuit.
What Is a Deposition? A deposition is part of the process of assembling evidence before trial in a lawsuit. It is called by an attorney for one of the parties to a lawsuit and takes place away from the courtroom. There are several reasons to depose you as a witness. A deposition allows attorneys to evaluate how you will do as a trial witness and establishes what your testimony will be.
David Babcock begins his article for the April 2012 issue of the Journal of Environmental Health, “An environmental health inspector is writing up his or her restaurant inspection report. An epidemiologist is logging food history with an ill member of the public. In either case, the possibility that the document may someday be held to close legal scrutiny may be the furthest thing from their minds. But, while an exceedingly small percentage of food poisoning cases become legal matters, it does happen. And when it does, the documents generated by local health agencies are often front and center.”
Andrew Weisbecker wrote this article for the Journal of Environmental Health. In the article, Mr. Weisbecker addresses the need for public health agencies to put in place effective records and information management programs, establishing retention requirements based upon records’ legal, fiscal, administrative, and historical requirements and values. He writes, “Without such requirements, organizations either destroy records that should be retained or retain everything, thereby taking a legal risk or assuming unnecessary costs.”
In his article for the June 2010 issue of Microbiologist Magazine, Bill Marler describes how his career in law has developed to encompass microbiological food safety. He explains the ways in which microbiology features in his day-to-day life as a plaintiff’s attorney at Marler Clark.
In William Marler’s article, which appeared in the Food Law & Guidance section of Food Safety & Quality Magazine, he states: “Preventing an outbreak is not only better for consumers but helps protect a company’s image and bottom line. In addition to the cost of defending against civil lawsuits, there is significant damage to business, including lost revenue, bad publicity and loss of future sales. To make matters worse, in some cases there might be criminal penalties. Understanding liability, minimizing risk and taking precautionary measures will help to safeguard a company’s future.”
Contaminated Fresh Produce and Product Liability: A Law-in-Action Perspective
Denis Stearns wrote “Contaminated Fresh Produce and Product Liability: A Law-in-Action Perspective,” in Microbial Safety of Fresh Produce: Challenges, Perspectives, and Strategies, an IFT Press publication to be released in 2009. According to the publisher, “[the book] covers all aspects of produce safety including pathogen ecology, agro-management, pre-harvest and post-harvest interventions, and adverse economic impacts of outbreaks. The book examines the current state of the problems associated with fresh produce by reviewing the recent, high-profile outbreak sassociated with fresh-produce, including the possible internalization of pathogens by plant tissues, and understanding how human pathogens survive and multiply in water, soils, and fresh fruits and vegetables.”
Colin Caywood wrote about his experience as a first-year associate at Marler Clark for the January 2009 issue of the King County Bar Association’s Bar Bulletin. In it, he points out that every new lawyer’s experience is different since every law practice is unique, then draws parallels between himself and his peers who are beginning new careers and are familiarizing themselves with the day-to-day aspects of being an attorney that law school does not prepare students for.
Denis Stearns wrote this article for the Journal of Environmental Health. In the article, Mr. Stearns addresses who is legally responsible for injuries sustained after a person becomes ill after consuming a product that was intentionally contaminated before it was purchased. He wrote: Beyond the political implications of the use of food products as weapons, there is also the legal question of whether a company can be held liable for the criminal acts of an employee who decides, for whatever reason, to contaminate food products that then go on to make a number of people sick. To answer this question, we need first to discuss the rule of vicarious liability, or, as it is also known, respondeat superior—which is Latin for “let the superior make the answer.”
William Marler’s article for the October/November 2007 issue of Food Safety Magazine begins, “Foodborne illness has, of course, been around as long as there has been food. But the identification and diagnosis of these diseasesis an emerging science that is changing all sectors of the food business, and those chief executive officers (CEOs) and senior level directors and managers who do not keep up are bound to be at a significant disadvantage when making critical decisions about their businesses”.
Dave Babcock wrote this article, which was published in the November, 2007 issue of the Journal of Environmental Health. The article begins, “ast night you attended a catered function for your favorite charity. Now, 24 hours later, you are feeling less than charitable. In the past hour, you have vomited five times. Your head is pounding, your back aches, and you have a fever. Just before the diarrhea begins, a friend from the charity’s board calls to see how you are doing. She informs you that several others who attended the function are sharing in your misery.” The focus of the article is Norovirus outbreaks and whether victims of such outbreaks, whether they were infected by consuming Norovirus-contamianted food or through environmental contamination in an institutional setting such as a nursing home or assisted living facility or on a cruise ship, can recover damages for their illness.
Published in the Journal of Environmental Health, Andy Weisbecker’s article focuses on the elements of a class action lawsuit, certification of a class, and gives reasoning to the decision behind bringing individual lawsuits on behalf of victims of foodborne illness: Because individuals injured in a foodborne illness outbreak sustain varying degrees of injuries, a class action lawsuit typically is not the most effective - or fair - way to compensate victims for injuries sustained after eating unsafe food.
Lawyer, the Seattle University School of Law publication, featured Marler Clark in the summer 2007 issue of the magazine. In an Alumni Profile piece, Richard Farr focused on Marler Clark’s food litigation, and the firm’s ties to Seattle University. Partners Bill Marler and Bruce Clark both graduated from the Seattle University law school, as did associate Drew Falkenstein. Denis Stearns received his undergraduate degree from Seattle University, and Andy Weisbecker attended the university for his first three years of undergraduate study. Dave Babcock’s wife, Catherine O’Neil, is a professor at the Seattle University law school.
An article written by Bruce Clark for the Journal of Environmental Health that focuses on recreational water safety and the Cryptosporidiosis outbreak at the Seneca Lake State Park spraypark in 2005. He writes, “Given the poor public recognition of crypto symptoms, the likelihood that an infected person will be promptly diagnosed and will avoid behavior that could lead to transmission of the parasite is low”. Thus, Cryptosporidiosis deserves significant consideration in the operation of any spray or water park.
Marler Clark partner Andy Weisbecker began his article for the Journal of Environmental Health with a quote from Winston Churchill: “There is no finer investment for any community than putting milk into babies.” He then continued with an account of milk safety and the laws and regulations that have evolved to protect consumers from becoming ill from drinking milk produced in unsanitary conditions. He finished by saying that although laws and regulations are in place, “The sale of raw milk continues to be legal, in some form or another, in almost half the country’s states, and the attendant risk of raw milk–related outbreaks therefore also continues to be present.”
E. coli O157:H7 outbreaks associated with attendance at fairs and petting zoos garnered significant media attention in recent years after outbreaks were traced to fairs in Oregon, North Carolina, Texas, and Florida. In this article written by attorney Dave Babcock for the November, 2006 issue of the Journal of Environmental Health, he addresses questions regarding responsible parties when an E. coli O157:H7 or other zoonotic disease outbreak is associated with a petting zoo, animal exhibit, or fair.
Marler Clark epidemiologist Patti Waller and Barbara Kowalcyk, whose son Kevin died after contracting an E. coli infection in 2001, co-wrote this article for the January/February 2006 issue of the Journal of Environmental Health. It describes the Kowalcyk family’s struggle to find the source of Kevin’s illness and public health agencies’ responses to Barbara’s and Marler Clark’s requests for information. The article’s authors make it clear that not every person with a foodborne illness is so “lucky” to benefit from a multi-agency investigation into the source of their illness.
Attorney Dave Babcock authored this article, which appeared in the September, 2006 issue of the Journal of Environmental Health. How public health documents are used in foodborne illness litigation is a popular topic among environmental health and health department audiences, and this article provides background for all public health audiences. Mr. Babcock explains, “Environmental health data may be used in conjunction with epidemiologic data to establish the liability of a defendant.”
Epidemiologist Patti Waller and attorney Denis Stearns wrote this column for the Journal of Environmental Health’s June 2006 issue. The article focuses on the USDA’s proposed rule on changing policy regarding public disclosure of the names of retail outlets that received potentially contaminated meat during a meat recall. The authors argue, “The revised recall policy proposed by USDA represents a commonsense approach that balances industry concerns and the public’s right to know. It is thus deserving of widespread public support.”
Marler Clark principal Denis Stearns wrote this chapter for the Institute of Food Technologists’ book, Food Irradiation Research and Technology. The book’s publisher states: Food Irradiation Research and Technology appeals to a broad readership: industry food scientists involved in the processing of meat and fish, fruits and vegetables; food microbiologists and radiation processing specialists; government and industry representatives involved in the import and export of food commodities; and industry, local, and state officials involved in educational efforts regarding food irradiation. The book was published in early 2006.
A column written by Marler Clark associate Dave Babcock, which appeared in the April issue of the Journal of Environmental Health. The column includes a discussion of what toxic mold is, where exposures are occurring, legal claims resulting from mold contamination, and how to prevent mold exposure. It ends with practical information regarding toxic mold concerns: Landlords, building managers, and contractors should be aware of the risks presented by mold. Common sense would seem to dictate designing and constructing buildings with reduction of the likelihood of mold infiltration in mind. When mold does appear, early removal efforts are more likely to be the least costly in the long term. And, like homeowners, those responsible for the building and its inhabitants should know where they stand with respect to insurance coverage for mold-related claims.
Marler Clark associate attorney Dave Babcock wrote an article on whether Environmental Health Agencies and Health Departments should seek reimbursement for costs involved in outbreak investigations and prevention in an article for the January/February 2006 Journal of Environmental Health. In the article, he addresses two key issues that influence a public health agency’s decision to seek reimbursement: Replenishing the agency’s budget to continue its primary functions and the fear that seeking reimbursement could lead to decreased cooperation from the entity responsible for the outbreak.
Marler Clark associate attorneys Dave Babcock and Drew Falkenstein co-authored an article on litigation resulting from bovine spongiform encephalopathy (mad cow) contamination for the March 2006 edition of the King County Bar Association’s Bar Bulletin. The authors address the question of whether Mad Cow litigation is imminent head-on, stating, “It is difficult, at least in part due to the lengthy incubation period of the disease, to accurately assess the threat that BSE presents both in the U.S. and globally. Litigation to address individual cases of BSE is not imminent, and frankly can only come too late for the individual involved.”
This article, written by Drew Falkenstein, appeared in the November, 2005 issue of the Journal of Environmental Health, and was a follow-up to his previous article, “An Introduction to Liability, Negligence, and All Things In Between.” In this article, Drew addresses different states’ laws regarding liability of environmental health professionals. He encourages environmental health professionals to find out whether your state is a “public-duty-doctrine” state or a pure “immunity” state. Then determine what exceptions apply.
Marler Clark associate attorney Drew Falkenstein wrote this article for the Legal Briefs column in the September, 2005 Journal of Environmental Health. In it, he breaks down elements of a legal claim, including liability, negligence, duty, breach, and causation. He concludes, “For now you have, in nutshell form at least, the tools to assess virtually any situation in which a plaintiff files a negligence lawsuit against a defendant.”
Printed in the June/July 2005 issue of Food Safety Magazine, an article written by Bill Marler about the food industry’s reaction to claims of foodborne illness after the “discovery” of a finger in a bowl of Wendy’s chili, which was later found to have been placed in the chili by the woman who “found” it. He addresses the treatment of legitimate and non-legitimate claims, and tells food companies, “If a claim has merit, treat the customer fairly and learn from your error. This will help you keep your eye on your bottom line as opposed to looking for the finger in the chili.”
One of a series of articles written by Denis Stearns that address the legal risks faced by manufacturers and distributors of food products. In this article about whether an employer is liable if an employee intentionally contaminates a product, Mr. Stearns explains that, “The employer is vicariously liable for the negligence of its employee while on the job, which is to say the law treats the employer as if it committed the act itself. Employees or agents are merely an extension of the employing company, and that acts of one are the acts of the other.” The article appeared in an online newsletter for ID Access.
In an article for ID Access, Denis Stearns addresses liability for product distributors. He uses examples to further illustrate product distributor liability in practical scenarios such as in the case of when a distributor transports E. coli-contaminated lettuce or ground beef from a producer to a retailer. Central to his writing is the concept of a pass-through statute, of which he writes: What pass-through statutes do—when they work as intended—is help the plaintiff to find out the identity of the manufacturer in situations where that information might otherwise be hard to learn. The statute also protects non-manufacturing defendants avoid the cost and disruption of litigation, or at least most of it.
In one of a series of articles written by Denis Stearns that address the legal risks faced by manufacturers and distributors of food products, he writes about indemnification. Mr. Stearns explains how an indemnity agreement works: “In contract, it is because you have a written agreement from a manufacturer, or your supplier, to pay damages you incur as a result of the product, often including attorney fees. In equity, the right to recover is because the law deems it unfair for you to be liable for anything but your own negligence.” The article appeared in an online newsletter for ID Access.
In one of a series of articles written by Denis Stearns that address the legal risks faced by manufacturers and distributors of food products, he explains chain of distribution liability in simple terms: If you had a role in the distribution of a defective product that ends up causing an injury, in half of the states you can be sued and held liable, even if you were nothing more than a conduit that moved an unopened box from Point-A to Point-B. The article appeared in an online newsletter for ID Access.
Mr. Stearns addresses the concept of strict product liability in one of a series of articles for ID Access that address the legal risks faced by manufacturers and food distributors: “Under the new rule of strict liability, to hold a manufacturer liable, a person injured while using a product need only show that: (1) the product was defective; (2) it was used as intended; and (3) the defect caused the injury. The care used in the manufacture of the product is irrelevant to the determination of liability. The only issue in a product liability case is the defectiveness of the product, not the manufacturer’s conduct in somehow allowing the defect to arise. As a result, proof of negligence is not required to recover damages.”
Denis Stearns begins a discussion of product liability law with a brief explanation of its origins: Product liability law evolved from contract law, with the first decisions strongly favoring manufacturers. For a very long time, the “general rule” was that a manufacturer could not be sued, even for negligence, by someone with whom he had no contract. This was called the “rule of privity,” and it was most famously set forth in an 1842 case that is bane of every first year law student’s existence—Winterbottom v. Wright.
In Denis Stearns’ first article for ID Access, he introduces readers to product liability law and the concepts behind it, beginning with: When a person is injured by a defective product that is unreasonably dangerous or unsafe, the injured person may have a claim or cause of action against the company that designed, manufactured, sold, distributed, leased, or furnished the product. In other words, the company may be liable to the person for his injuries and, as a result, may be required to pay for his damages. That, in short, is product liability; and, not surprisingly, the law that governs this kind of liability is referred to as product liability law.
A paper presented at the May 2005 Defense Research Institute meeting on food liability written by Bill Marler and Dave Babcock. In the paper, Mr. Marler and Mr. Babcock use case studies to provide examples for how legitimate foodborne illness claims can be distinguished from illegitimate, or “bogus” claims. The attorneys provide information on tools used to evaluate claims at Marler Clark.
Written by Bill Marler for the February, 2005 Food Safety In-Sight newsletter by Environ Health Associates, Inc, Bill’s paper on foodborne illness and tort begins, “In a perfect food safety world, operators of food facilities would place the health of the consumer above all else. Science-based foodborne illness prevention systems would be in place from farm to table and government in partnership with industry would effectively monitor the food supply so unsafe conditions could be detected and quickly corrected. In a perfect world, food safety would be a given.”
In an article printed in the November, 2004 issue of Trial Magazine, written by Bill Marler and Dave Babcock, the attorneys explain: As a general rule, food poisoning cases are products liability cases.2 In other words, they are brought forward under the doctrine of strict liability. Since it does not require great legal argument to establish that a sandwich contaminated with Salmonella or some other pathogen is “defective” under statutory or common law definitions, the battle is fought in proving that the food your client consumed was in fact contaminated, and therefore the source of the client’s injuries.
“An E. coli O157:H7 Outbreak at a Chain Restaurant: A Case Study on How Easily Legal Liability Can Spread to a Franchisor” was written by Denis Stearns for the February 2004 Law Journal Newsletters’ Franchising Business and Law Alert. Mr. Stearns concludes his article, “Insurance can be purchased to cover the risk of litigation, to hire attorneys, and to pay the cost of settlements and verdict. But there is no insurance against lost sales and a battered public perception—that is, except, to prevent the outbreak from occurring in the first place.”
When a person is injured by a defective product that is unreasonably dangerous or unsafe, the injured person may have a claim or cause of action against the company that designed, manufactured, sold, distributed, leased, or furnished the product. In other words, the company may be liable to the person for his injuries and, as a result, may be required to pay for his damages. That, in short, is product liability; and, not surprisingly, the law that governs this kind of liability is referred to as product liability law.
This article by Denis Stearns appeared in the July/August 2002 issue of Food Quality Magazine. Mr. Stearns begins the article, “Let’s be honest: as an attorney who makes a substantial portion of his living by filing lawsuits against restaurants, it’s not in my financial interest to have the National Restaurant Association (NRA) change its position on mandatory hepatitis-A vaccinations for food-handlers,” and goes on to argue that food handlers play a large part in hepatitis A outbreaks and that, if food handlers were vaccinated against hepatitis A, Marler Clark would represent fewer clients in claims against restaurants that are the source of hepatitis A outbreaks.
“E. coli Lawsuit Results in a $4.75 Million Jury Award for Injured Children: A Case Study in How Not to Learn About Food Safety” is article about the Almquist, et al. v. Finley School District E. coli O157:H7 litigation, written by Denis Stearns. In the article, Mr. Stearns argues that, “Indeed, if there is but one lesson to be learned from this case it is that no foodservice operation should assume, like the School District here appeared to have done – that its procedures are safe and adequate simply because no one has ever been made seriously ill.”
Denis Stearns wrote a commentary on foodborne illness outbreaks and the key role criticism from the right people could play in preventing them. In the commentary, he discusses responses to particular outbreaks, including the public outcry, then states, “Notably absent, however, was any outcry from the juice manufacturing industry, the National Restaurant Association, or the public health officials involved in the outbreak investigations. And while I am not surprised at industry silence, I continue to be surprised when health department officials allow themselves to act as apologists, leaping to a company’s defense before an outbreak investigation has begun, or is completed.”
Denis Stearns wrote, “Preempting Food Safety: An Examination of USDA Rulemaking and its E. coli O157:H7 Policy in Light of Estate of Kriefall ex rel. Kriefall v. Excel Corporation” for the Fall 2005 issue of the Journal of Food Law and Policy. The article uses the Kriefall decision to examine USDA rulemaking, and briefly describes the development and implementation of the USDA E. coli O157:H7 policy as a reaction to the 1993 Jack in the Box E. coli outbreak as well as the USDA’s move to a science-based HACCP model.
In his 2002 commentary for the July/August edition of Food Protection Report, Denis Stearns writes about the Federal Meat Inspection Act and USDA’s rule-making process. In the commentary, titled, “USDA’s Food Safety and Inspection Service Should Say What It Means, Mean What It Says—and Say It Clearly,” he concludes, “[I]f federal law is going to sweep aside state law, then let it do so solely in the interest of the public health, and not as a way for the meat industry to avoid responsibility for the sale and distribution of unsafe products.”