FOOD SAFETY Expert Witnesses

Food Safety Law: Major Corporations

Food safety litigation is on the rise, with some major corporations being potentially held accountable in ways that were previously unheard of. This article examines the trends in food safety litigation, in terms of the direction it is headed and what kinds of experts may be needed to address new trends.

Two major food companies have been dealing with litigation over the safety of their products for extended periods, in the sense that the food safety concerns have not only been about a few isolated incidents but have entailed ongoing issues.  See, e.g., Rebekah Mintzer, “Chipotle and Blue Bell Cases May Turn Executive Stomachs,” Corporate Counsel, Jan. 7, 2016. In addition to protracted legal battles, the most recent food safety litigation has also been unique in that the federal government has involved itself and is pursuing potential criminal action against individual executives of the respondent companies.

The modern trend towards holding companies and their executives criminally responsible is worth noting. In fact, “Federal criminal prosecutions over food safety problems used to be nonexistent. Food-borne illness attorney Bill Marler, managing partner at Marler Clark, says that he’s been in practice for 20 years but has only seen the government launch these prosecutions in the last five.” Id.

In addition, current food safety litigation has been geared towards holding individual executives, rather than entire companies, responsible for contamination and related matters. See id, e.g. Experts have argued that because of this, if government agencies get involved, they will also take criminal action against individual members of a company, rather than the company itself. See id.

Food Safety Expert Witnesses: Choosing the Right Expert

What is the implication for companies and their executives? Some industry professionals have suggested keeping a good criminal attorney on retainer. See id. Others have mentioned the importance of selecting the right food safety experts. In terms of expert witness selection, companies should understand the direction that food safety litigation is heading and should try to choose their experts accordingly.

Specifically, what should defendants look for in expert witnesses for food safety litigation? Any expert who is retained should be very familiar with the standards that will be applied in a particular case. For example, to convict executives of a food safety violation, the prosecution will have to prove that the executive in question ignored a risk. Id. Experts who work with clients accused of a food safety violation should understand this and formulate theories and opinions that account for the specificity of the charge. Prosecutors do not have to prove that an individual knew people were getting sick in order to prove criminal liability, so experts in food safety should understand this and work to craft evidence that takes this into account and is responsive.

Expert witnesses may be more important than ever in food safety litigation, particularly when it seems that the stakes are so much higher. Regardless of whether the litigation is civil or criminal, companies and individuals selecting and retaining experts should look for witnesses who understand the direction food safety litigation is heading and can address both civil and criminal matters with confidence and credibility. If such care is taken in retaining experts, food safety headaches may become much less troublesome for the parties involved.