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Is it food poisoning? Expert litigator explains claim evaluation

October 3, 2018
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(Shutterstock.com photo)

When 9-year-old Brianne Kiner nearly died after eating a fast food hamburger from the 1993 Jack in The Box E. coli outbreak, she endured kidney failure, diabetes, asthma, brain damage and a $15.6 million settlement.

Kiner was one of more than 700 people to contract the foodborne infection through contaminated meat, which led to 171 hospitalizations and four deaths — all stemming from innocently consumed hamburgers.

“These cases are not just someone with a tummy ache,” said William Marler, the food safety expert and attorney who launched his fledgling career after successfully representing Kiner and more than 100 other Jack in The Box victims. Since then, he has represented hundreds of victims in some of the most serious foodborne illness outbreaks in the country, winning more than $600 million in settlements.

Yet Marler, who spoke recently at Indiana University Robert H. McKinney School of Law, said he still receives paranoid calls from people asking if he thinks they got food poisoning from something they ate a few hours prior to feeling ill. Most of the time, his answer is no. The key to properly distinguishing between legitimate food poisoning claims and suspect ones is to scrutinize incubation periods — the time between ingestion of a foodborne pathogen and the onset of its symptoms.

marler-cle-100318-15col William Marler (submitted photo)

“For example, the claimant who insists that an E. coli O157:H7 illness was sparked by the hamburger eaten an hour before the onset of illness does not have a viable case,” Marler wrote in an article, “Separating the wheat from the chaff: The reality of proving a foodborne illness case.” “The incubation period of E. coli O157:H7 is one to ten days, typically two to five days.”

Pathogens — infectious agents that cause illness or disease — are critical in identifying the source of a foodborne illness. If, for example, someone ate raw cookie dough contaminated with salmonella, they might not experience symptoms until 18-36 hours later. But other pathogens may take much longer, like hepatitis A, which typically occurs after 25-30 days.

Even very brief incubation periods for pathogens such as staphylococcus aureus, between two to four hours, still rely on other variables to confirm the cause of the illness.

“The number one thing to look for is whether or not other people have come down with a similar illness in a similar timeframe,” said Michael Wroblewski, partner at Kightlinger Gray, LLP in Indianapolis. “Then from there you have to look at what the symptom profile is and what pathogens match that profile.”

That information must then be cross-referenced with the incubation period of the suspected pathogen, Wroblewski said. If it’s consistent, it’s a match.

But every pathogen has its own symptom pattern and incubation period, according to Alyssa Rebensdorf, counsel at Faegre Baker Daniels in Minneapolis. The time between exposure and the onset of symptoms varies from pathogen to pathogen.

“It’s fairly common for people to go to bed after eating and then wake up in the early morning hours feeling nauseous and saying, ‘Oh what I ate last night must have made me sick,’” Rebensdorf said. “Well, there aren’t a lot of major pathogens that will cause you to get sick in just a couple of hours.” Wroblewski agreed, noting most suspected cases that stem from a single instance of food poisoning start with that assumption.

“Proving a claim of food poisoning requires proof well beyond getting sick and pointing to the last thing consumed as the culprit,” Wroblewski said. “Since incubation periods can range from close to immediate onset to upwards of three weeks, pointing to the last meal you consumed is rarely an appropriate starting point.”

Marler explained the key elements he relies on to establish and sift out legitimate cases from the suspect when approaching foodborne illness claims:

food-box.pngHealth department investigations. Several variables play a role in an outbreak investigation, Marler noted. Those include the pathogens involved, the type of food consumed, associated symptoms and how many people have been infected by the pathogen or may be in the future.

“All states have agencies tasked with monitoring bacterial and viral illnesses associated with food consumption,” Marler said. If a health care provider has reason to believe a patient has a foodborne illness, they are required under state law to report it to the appropriate agency.

In turn, the results of an outbreak investigation are either made public knowledge by health authorities or available through public records requests, which can help support legitimate claims in court.

Prior health department inspections. Documenting a food service company’s past decisions and failed health inspections can also help nail down legitimate claims, especially when there may be documentation of improper food handling procedures that can prove the manner of contamination.

“Because a food establishment must sign off on its inspection reports, these documents are useful in establishing both prior violations and the defendant’s prior knowledge,” Marler said.

For example, fresh juice manufacturer Odwalla was identified as the source of a major outbreak of E. coli O157:H7 in 1996. When Marler requested inspection documentation through discovery requests, previously undisclosed inspection reports were uncovered that found Odwalla already knew its product was contaminated.

One such report came after the United States Army stated it would not accept Odwalla products after finding the manufacturer’s plant sanitation program did not “adequately assure product wholesomeness for military consumers.”

Regardless, Odwalla continued to ship its products. In an internal company email, Odwalla disclosed thoughts about testing for potential pathogens in its product: “… Why are we doing it, why now, what do we want to prove if the data is bad, what do we do about it. Once you create a body of data, it is subpeonable.” Several months after the email was sent, a child died from drinking Odwalla apple juice contaminated with E. coli.

“Did Odwalla produce this document in discovery? No,” Marler said. “We got to look at all kinds of fun emails. They tried to delete it but we found it. So we sued them.”

Medical records and lab reports. Lastly, critical components in proving a foodborne illness case include evidence found in a patient’s medical records and lab results. Typically, this comes in the form of a stool or blood culture performed by a doctor or hospital.

“A stool sample is the only definitive proof regarding the presence of a foodborne pathogen within a patient’s system. Without a stool sample, there’s no way to definitively say what caused the illness or if there was a pathogen at all,” Wroblewski said. “Often times the hospital doesn’t take a stool sample until several people show up with similar symptom and history profiles.”

Once a stool sample is cultured, it can help identify the exact bacterial isolates in the contaminated substance and be further broken down to determine where connections can be made.•

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