In 2016, 560 food recalls occurred, with one very recent recall taking place in December and potentially having consequences that extend into 2017 and beyond. See, e.g., Megan Leonhardt, “What Not to Eat: 9 of the Biggest Food Recalls of 2016,” Money Magazine, Dec. 9, 2016. In fact, according to one analyst, “The FDA recalled over 318 million total food items this year, while the U.S. Department of Agriculture (which oversees meat and poultry products) recalled almost 60 million pounds of food… . To date, these two agencies reported around 560 recalls this year — which means Big Food is one or two…recalls away from reversing a several-year decline.” Id. This article examines the legal implications of recent food recalls (and food recalls in general), as well what type of involvement expert witnesses have had and will continue to have in cases pertaining to contaminated or otherwise problematic food products.
One of the main culprits that affects food safety is contamination and the illnesses, bacteria, and other pathogens that are released when food contamination occurs. See id., e.g. Regardless of whether or not a food provider takes the initiative and voluntarily recalls a product as soon as it possibly can, litigation frequently ensues. For example, in November, the US Food & Drug Administration (FDA) made a statement to the press regarding a corporation that issued such a recall because it was reportedly concerned about the potential health risks of a pathogen found in certain types of its products. See FDA, “Sabra Dipping Company Issues Voluntary Recall Of Certain Hummus Products Because Of Possible Health Risks,” FDA Press Release, Nov. 19, 2016, available at http://www.fda.gov/Safety/Recalls/ucm529967.htm (last updated Nov. 23, 2016), (last visited Jan. 4, 2017). Regardless of the fact that the corporation in question acted quickly and pulled all potentially contaminated products from store shelves, litigation about this matter is already in the works, and many law firms are soliciting clients regarding this specific matter. See, e.g., Schmidt & Clark, LLP, “Sabra Hummus Recalled Over Possible Listeria Contamination,” Nov. 23, 2016, at https://www.schmidtandclark.com/sabra-hummus-recall-lawsuit (last visited Jan. 4, 2017).
Many of the law firms that are trying cases of this nature are pursuing legal action against a number of different defendants for distinct products in somewhat varied circumstances. What these lawsuits have in common is that they all allege that the type of food contamination was the same, and each case involves “Listeria monocytogenes [aka “Listeria”], a potentially deadly foodborne pathogen.” Id.
Clearly, there are many roles for expert witnesses to play in cases of this nature, as well as in food contamination cases in general. For instance, plaintiffs will require the testimony of experts such as medical professionals, biologists and other scientists, infectious disease experts, food safety experts, and the like, in order to prove that Listeria is indeed a harmful or even deadly pathogen. In addition, it is a well-settled principle that experts are often the only ones, in cases of this nature, who can establish causation. For example, to prove or disprove a link between consuming a specific product and experiencing particular health problems, expert witnesses rely upon scientific principles and assist courts and juries in understanding how a specific ailment or injury came about.
In addition, whenever a recall occurs, whether it is food related or otherwise, product liability experts are essential. These witnesses can help to establish whether or not a defendant should be held strictly liable for contamination, whether a party was negligent with food safety precautions, and whether the contamination was even within a particular company’s control. Moreover, experts in food safety can help courts to understand what the appropriate standard of care is in the industry and whether a specific defendant deviated from that standard or not. Both sides will be highly dependent on qualified experts to help establish their theories as to what, if any, liability should be attributed to a given party and whether causation and damages can, in fact, be established.
There may even be a debate among the experts as to whether contamination was actually the problem. See, e.g., Megan Leonhardt, supra. For example, some analysts have argued that “The cause isn’t necessarily more contamination, but increased oversight… . ‘Because of advancements in testing and increased vigilance, they are simply being detected more often — and that provides an opportunity to actually increase food safety,’ [one consultant] says.” Id. Arguments of this nature may help both sides, depending upon how a good expert witness frames them. On the one hand, a plaintiff’s expert could argue that a food provider failed to exercise the level of oversight they should have and that such failure is evidence of negligence. Plaintiffs’ experts may also advance the claim that if such detection techniques are readily available, companies that do not use them should face legal consequences. On the other hand, a defense expert may argue that the defendant did utilize all of the advancements available to ensure food safety, that such proactive steps disprove negligence, or that such detection methods are too onerous and should not be expected of a particular defendant or are not the industry standard.
With the hundreds of food recalls that occurred in 2016 and the record increase of such problems, litigation will also undoubtedly be on the rise in the food safety field. While the products that were recalled may have represented admissions that a particular food item could be harmful or otherwise dangerous if consumed, such admissions do not necessarily translate into a verdict against a particular defendant. Ultimately, it will be up to the experts to parse out where certain responsibilities (if any) lie and to prove or disprove the effects of specific instances of food contamination. Both attorneys and experts witnesses in this area will likely experience increases in their litigation involvement and caseloads, and the experts may frequently be the ones to save the day for whomever they represent in the hundreds of potential cases that may result from the recalls of the past year.
By: Kat S. Hatziavramidis, Attorney-at-Law