Food Poisoning and Other Foodborne Harm: Claims and Defenses
Transcript of Food Poisoning and Other Foodborne Harm: Claims and Defenses
Food Poisoning and Other Foodborne Harm:
Claims and DefensesIdentifying All Potential Defendants and Causes of Action
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TUESDAY, DECEMBER 17, 2019
Presenting a live 90-minute webinar with interactive Q&A
Bruce Clark, Partner, Marler Clark, Seattle
Ashley T. Davis, Attorney, Allen & Allen, Richmond, Va.
Alan M. Maxwell, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta
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How to Analyze the Scope of an Outbreak,
Access Liability and Causation, and
Calculate Damages
Bruce Clark and
Alan M. “Al” Maxwell
The scope of the problem/outbreak
Liability of the defendant/client “globally” and
“specifically”
Determine insurance coverage
Determine liability of other parties - long distribution chain
Assess liability and damages for specific claimants
Evaluate counsel (number of cases in this outbreak and
others, trial history, etc.)
Mass torts
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Outbreak 101
Outbreaks involve two or more
illnesses from common source
Pathogens
› STEC / E. coli O157:H7, O145,
etc.
› Salmonella
› Listeria monocytogenes
› Clostridium botulinum
› Hepatitis
Virulence varies widely among
pathogens
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E. coli O157:H7
Salmonella
Hepatitis A
Analyzing the scope of the problem
Listeria
monocytogenes
Gather records from CDC, FDA/USDA, state & local
health departments, Departments of Agriculture and
laboratories
Obtain claimant specific records with HIPAA releases
and FOIA requests
Match known claims with “confirmed” cases on the CDC
line list
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Analyzing the scope of the problem (cont.)
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Assessing Liability (cont.)
The scope (number of claimants) is always potentially
greater than the number of CDC confirmed cases (line
list)
› Claimant not tested for pathogen
› Claimant received antibiotics before being tested for pathogen
› 10-20% of patients that have infections of organisms such as E.
coli O157:H7 will nonetheless test negative for the pathogen
Account for number of minors on the list and unknown
potential claimants
Cannot assume that potential claimants had mild
illnesses
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Analyzing the scope of the problem (cont.)
“Global” liability - is the defendant/client really the
source of the outbreak?
“Specific” liability - is defendant/client responsible for the
claimant’s illness?
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Assessing Liability
Most of the work is done
by federal, state or local
health agencies
› CDC
› FDA
› USDA-FSIS
› State Health Departments
› Municipal Health
Departments
Mandatory reporting of
infectious diseases
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77 IL ADC 690.100, et. seq.:
Control of Communicable Disease
Code
› E. coli infections (E. coli O157:H7
and other Shiga toxin-producing
E. coli, enterotoxigenic E. coli,
enteropathogenic E. coli and
enteroinvasive E. coli) must be
reported by a physician, or any
other person having knowledge of
a known or suspected case or
carrier, as soon as possible during
normal business hours, but within
24 hours (i.e., within 8 regularly
scheduled business hours after
identifying the case), to the local
health authority. 77 IL ADC
690.100; 77 IL ADC 690.200
Assessing Liability (cont.)
FOIA/Open Records Act Requests
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Assessing Liability (cont.)
Food History questionnaires -
“Knife and Fork” forms
Stool culture reports – PFGE /
MLVA/WGS analysis
Case Control Studies / Reports
State / CDC Line Lists
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Assessing Liability (cont.)
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Assessing Liability (cont.)
Long Distribution Chain
Traceback is necessary all the way to the field or source
› Focus of suit is usually on the processor
Beef slaughter facility
Leafy greens processing facility
Possible distinction in produce cases depending on
whether the product is “changed” during the processing
› Spinach (washed)
› Lettuce (shredded)
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Assessing the Liabilities of Other Parties
Inventory Management with
the Anti-Terrorism Act
Anti-terrorism act –
Changes to 21 USC § 350cSec. 414 -- ``(b) Regulations Concerning Recordkeeping.--The Secretary, in
consultation and coordination, as appropriate, with other Federal departments and
agencies with responsibilities for regulating food safety, may by regulation establish
requirements regarding the establishment and maintenance, for not longer than two
years, of records by persons (excluding farms and restaurants) who manufacture,
process, pack, transport, distribute, receive, hold, or import food, which records are
needed by the Secretary for inspection to allow the Secretary to identify the
immediate previous sources and the immediate subsequent recipients of food,
including its packaging, in order to address credible threats of serious adverse
health consequences or death to humans or animals…”
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Assessing the Liability of Other Parties (cont.)
The liability of various parties can
differ even for the same outbreak
Nebraska Beef recall July 2008
› GA cases v. OH/MI cases
Funding agreement between
Defendants
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Assessing the Liability of Other Parties (cont.)
Additional Insured Endorsements
Named Insured
Vendors Endorsements
Insured Contracts
Lot or Batch Provisions
Indemnity Tenders / Notice
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Coverage Issues
“Women and Children First”
Opportunistic infections impacting
children, elderly and immuno-
compromised individuals more
seriously
Hemolytic Uremic Syndrome
(“HUS”) – long term kidney issues
Irritable Bowel Syndrome (“IBS) –
emerging claim associated with GI
illnesses
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Determining Damages
Obtain all medical records as soon as possible
Is there a possibility of future complications
Irritable Bowel Syndrome (“IBS”) symptoms frequently last
several years
Hemolytic Uremic Syndrome (“HUS”) is a frequent complication
of more serious E. coli O157:H7 claims associated with serious
renal and neurologic injury
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Determining Damages (cont.)
Early expert analysis is important
Early or later negotiation may depend on the illness
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Dealing with Claims with Potential
Long-Term Medical Issues
IBS patients usually improve within one to two years but
frequently have symptoms for many years
Early analysis of HUS cases is important
› The decision to negotiate early will depend on medical picture
› Probability of future complications is usually not known until at
least one year after the acute phase of the illness
› Laboratory results after the acute phase can dramatically
increase or decrease the value of the claim
Structured Settlement/Medical Trusts
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Dealing with Claims with Potential
Long-Term Medical Issues
Claim Considerations
Ashley T. Davis, Esq.
Allen, Allen, Allen & Allen (Virginia)
(804) 257-7526
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Claim Considerations
A. Negligence
B. Res ipsa loquitor
C. Strict liability
D. Application of product liability principles
E. Warranty claims
F. Consumer Protection Act claims
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Negligence
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Types of Negligence Claims
1. Negligence
2. Failure to Warn
3. Negligence Per Se
4. Res Ipsa Loquitor
5. Gross Negligence
6. Willful and Wanton Conduct
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Elements of Negligence
1. Duty
2. Breach
3. Causation
4. Damages
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Elements of Negligence
1. Duty
2. Breach
3. Causation
4. Damages
• what did the defendant do wrong?
• did the defendant have knowledge?
• was the harm foreseeable?
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Elements of Negligence
1. Duty
2. Breach
3. Causation
4. Damages
• what happened to the product?
• delayed onset of symptoms
• other possible causes (other foods, environment)
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Gross Negligence / Willful and Wanton Conduct
• Freedom of Information Act Requests• FDA (facility inspections)
• State and local health departments (restaurant inspections)
• Product Recalls
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Gross Negligence / Willful and Wanton Conduct
• Customer Complaints• Yelp
• Google Reviews
• Product Reviews (Amazon, etc.)
• Internal Documents• Discovery
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Negligence Per Se / Statutory Violations
• Food Safety Acts
• Safety Statutes
• Administrative Regulations
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Failure to Warn
• Plaintiff filed suit against candy manufacturer alleging that he suffered dental, jaw, and hearing injuries when he bit into an undeveloped peanut in one of the manufacturer's candy bars.
• Summary judgment:
• Granted as to negligence, strict liability, and breach of warranty.
• Denied as to the failure to warn claim.
Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008)
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Res Ipsa Loquitor
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Res ipsa loquitor
• Latin for “the thing speaks for itself”
• Infers negligence from the nature of an accident or injury in the absence of direct evidence of the defendant’s conduct
• The cause of the injury must be in the defendant’s exclusive control
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Res ipsa loquitor
Customer showed that the restaurant food that he ate was the only food he had eaten in hours and it made him sick.
Trial judge should have submitted the case to the jury on the theory of res ipsa loquitor.
McPherson v. Capuano & Co., 31 Ga. App. 82, 121 S.E. 580 (1923)
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No Res Ipsa Loquitorcausation
Customer alleged that she got sick at casino, but she:
• ate multiple items and did not know which one made her sick,
• did not have doctor’s opinion to support causation, and
• had pre-existing health conditions that could have caused her stomach problems
Folly v. Tunica-Biloxi Indians of La., 2003 Tunica-Biloxi Trib. LEXIS 1 (2003)
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Exclusive Control• Sharp metal blade inside hot
dog
• Plaintiff bit into hot dog, broke a few teeth and cut his tongue
• Court denied manufacturer’s motion for summary judgment
Watkins v. Gwaltney of Smithfield, Ltd., No. 3:16-CV-2049, 2019 U.S. Dist. LEXIS 193060 (M.D. Pa. Nov. 6, 2019)
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No Exclusive Control
• Sausage was run through a prison metal detector
• No res ipsa loquitor against manufacturer
Foote v. Polk, No. 16-cv-641-wmc, 2019 U.S. Dist. LEXIS 3846 (W.D. Wis. Jan. 9, 2019)
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Strict Liability
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Strict Liability
• Products liability law evolved from early common law to protect consumers from tainted food.
• Strict liability makes the seller an insurer of the product’s safety, even if the seller exercised all reasonable care and there was no privity of contract between the victim and the target defendant.
• Dates to England in 1266. First case in 1913. By 1960, strict liability as to defective food and drink was the majority rule.
Koster v. Scotch Assocs., 273 N.J. Super. 102, 109, 640 A.2d 1225, 1229 (Super. Ct. 1993), citing Prosser and Keaton on Torts §97 (5th ed.)
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Strict Liability – Elements
1. the product was defective;
2. the defect existed when it left the defendant’s hands;
3. the defective product was unreasonably dangerous to the user or consumer;
4. the consumer was injured;
5. the defect was the proximate cause of the plaintiff’s injuries.
Harper v. United States Beef Corp., No. 15-cv-3112, 2018 U.S. Dist. LEXIS 139096 (C.D. Ill. July 23, 2018); ; Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274 (D.P.R. 2015); Matthews v. Campbell Soup Co., 380 F. Supp. 1061, 1062 (S.D. Tex. 1974)
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Products Liability
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Products Liability
1. Defective Design
2. Defective Manufacture
3. Failure to Warn
• Product might be defective if it fails to match the average quality of like products.
Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274 (D.P.R. 2015)
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Approaches to Strict Liability
Strict Liability
• Purpose: to insure that costs of injuries resulting from defective products are borne by the manufacturers that put the products on the market rather than by injured persons who are powerless to protect themselves.
Negligence
• Compliance with industry standards is evidence of due care.
• If an injury-causing product complies with regulatory safety standards, the product is not defective unless a reasonably prudent product seller could and would have taken additional precautions.
Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008), citing Kan. Stat. Ann. § 60-3304(a)
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Warranties
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Warranty Claims
Express Warranty
Implied Warranties
1. Warranty of Merchantability
2. Warranty of Fitness for a Particular Purpose
3. Warranty of Wholesomeness
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Express Warranty
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Express Warranty - Requirements
1. Affirmative statement of fact
2. Made by the seller to the buyer
3. Relating to the goods
4. Reasonable reliance*
5. Notice*
Reynolds v. S & D Foods, No. 91-1442-PFK, 1993 U.S. Dist. LEXIS 3040 (D. Kan. Feb. 8, 1993), citing K.S.A. § 84-2-313 (requires reliance); Yates v. Pitman Mfg., Inc., 257 Va. 601, 606, 514 S.E.2d 605 (1999) (no reliance required); McMorrow v. Mondelez Int'l, Inc., No. 17-cv-02327-BAS-JLB, 2018 U.S. Dist. LEXIS 140078 (S.D. Cal. Aug. 17, 2018) (plaintiffs alleged excessive sugar in belVita products; court dismissed express warranty claims)
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Express Warranty – Sources
• Product Packaging
• Advertisements
• Menu Descriptions
• Website and Marketing Materials
• Verbal Warranties
Simmons v. Washing Equip. Tech., 51 A.D.3d 1390, 857 N.Y.S.2d 412, 413 (4th Dep't 2008) (defendant’s product label created an express warranty).
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Express Warranty
Actionable
biologically appropriate
fresh regional ingredients
happy, healthy and strong
Not Actionable
the manufacturer is dedicated to the highest standards of authenticity, nutritional integrity, and
food safety
Leppert v. Champion Petfoods USA Inc., No. 18 C 4347, 2019 U.S. Dist. LEXIS 7585 (N.D. Ill. Jan. 16, 2019) (cat food contained heavy metals and BPA, a industrial chemical); see also Adkins v. Nestle Purina PetCare Co., 973 F. Supp. 2d 905 (N.D. Ill. 2013) (statement that the dog food was “wholesome and nutritious“ was an express warranty)
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Express Warranty
“Washed & Ready-to-Enjoy!”
Barber v. Sam's Club E., Inc., No. 6:17-CV-00035, 2017 U.S. Dist. LEXIS 166453 (W.D. Va. Oct. 6, 2017)
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Express Warranty
Fruit Snacks come from “the highest quality fruit proudly grown on family farms” in a “tradition of wholesome goodness.”
Atik v. Welch Foods, Inc., 2016 U.S. Dist. LEXIS 106497 (E.D.N.Y. Aug. 5, 2016); Atik v. Welch Foods, Inc., No. 15-CV-5405 (MKB) (VMS), 2016 U.S. Dist. LEXIS 136056 (E.D.N.Y. Sep. 30, 2016) (agreeing that statements are actionable)
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Magnuson-Moss Act – Purpose and Scope
• Federal consumer protection act. Does not require manufacturers to give warranties, but if they do, the act imposes minimum standards.
• “Consumer” is a buyer (other than for purposes of resale) of any consumer product
• “Consumer product” is any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes.
15 U.S.C. § 2301, et seq.; 15 U.S.C. § 2302(a); C.F.R. § 700.1(a)
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Implied Warranties
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Implied Warranty of Merchantability
A merchant that sells goods impliedly warrants that the goods are merchantable; i.e.,
• that the goods will pass without objection in the tradeunder the contract description;
• that the goods are fit for the ordinary purposes for which such goods are used; and,
• that the goods are adequately contained, packaged, and labeled as the agreement requires.
Va. Code Ann. § 8.2-314
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Implied Warranty of Fitness for a Particular Purpose• Where a seller at the time of contracting has reason to
know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to furnish suitable goods, there is an implied warranty that the foods shall be fit for such purpose.
• Particular Purpose vs. Ordinary Use
Va. Code Ann. § 8.2-315; Reynolds v. S & D Foods, No. 91-1442-PFK, 1993 U.S. Dist. LEXIS 3040 (D. Kan. Feb. 8, 1993), citing Comment to K.S.A. § 84-2-315.
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Implied Warranty of Wholesomeness• When a person offers food or beverage for sale to
the public, he warrants that the food or beverage is free of foreign substances and is fit for human consumption.
Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274 (D.P.R. 2015); Bussey v. E.S.C. Rests. Inc., 270 Va. 531, 620 S.E.2d 764 (2005) (verdict for plaintiff who got sick after eating “bad meat” at a restaurant); Matthews v. Campbell Soup Co., 380 F. Supp. 1061 (S.D. Tex. 1974)
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Wholesomeness ≈ Strict Liability
• The doctrine of implied warranty is a derivative of strict liability.
Gonzalez-Caban v. JR Seafood, 132 F. Supp. 3d 274, 275 (D.P.R. 2015)
• With regard to food, it is no consequence that an action proceeds on the theory of strict liability of one who prepares and sells a food product, a tort action, rather than the theory of implied warranty of fitness for consumption.
Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008)
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Potential Defendants
• Manufacturers
• Packers
• Intermediate Dealers
• Retailers
• each impliedly warrants that the food is wholesome and fit for immediate human consumption, whether it is sold in bulk or in sealed packages or containers.
Newton v. Standard Candy Co., No. 8:06CV242, 2008 U.S. Dist. LEXIS 69183 (D. Neb. Sep. 12, 2008)
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Defenses to Implied Warranties
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Foreign-Natural Test
• No recovery as a matter of law if the substance in the food that causes the injury was “natural” to the food served.
• Possible recovery if the object was “foreign” to the food.
Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144 (Cal. 1936) (created the test); Musso v. Picadilly Cafeterias, Inc., 178 So. 2d 421, 426 (La. App. 1965); Battiste v. St. Thomas Diving Club, Inc., Civil No. 78-212, 1979 U.S. Dist. LEXIS 7697 (D.V.I. Apr. 10, 1979)
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Reasonable Expectations Test
• Whether the buyer could reasonably expect to find the substance in the food consumed is a question for the trier of fact.
Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 103 N.W.2d 64 (Wis. 1960); Battiste v. St. Thomas Diving Club, Inc., Civil No. 78-212, 1979 U.S. Dist. LEXIS 7697 (D.V.I. Apr. 10, 1979), citing cases.
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Examples
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Bacteria
Hotel had to show that the harmful bacteria found in the oysters served to consumer was natural to oysters and that presence of harmful bacteria was common knowledge and within the reasonable expectation of consumer.
Kilpatrick v. Superior Court, 233 Cal. App. 3d 233, 277 Cal. Rptr. 230 (1991) (reasonable expectations test)
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California Hybrid
• Rejected the foreign-natural test that California adopted in 1936 but did not adopt the reasonable expectations test.
• Dismissed plaintiff’s breach of implied warranty and strict liability claims because bones are natural in chicken dishes, but allowed plaintiff to claim negligent preparation.
Mexicali Rose v. Superior Court, 1 Cal. 4th 617, 4 Cal. Rptr. 2d 145, 822 P.2d 1292 (1992) (bone in a chicken enchilada in a restaurant)
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Consumer Protection Act Claims
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Consumer Protection Act Claims
Consumer protection laws were enacted to:
(1)protect consumers from unfair and deceptive trade practices used by merchants, and
(2)deter the use of those practices.
National Consumer Law Center has published a state-by-state summary of CPA laws and protections:
https://www.nclc.org/images/pdf/udap/udap-appC.pdf.
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Prohibited Acts – defined by statute
Examples:
• Misrepresenting that goods and services have certain characteristics, ingredients, uses, or benefits
• Mispresenting that goods and services are of a particular standard or quality
• Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction (catch-all provision)
Va. Code Ann. § 59.1-200
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Advantages to Plaintiffs
Most states allow a private right of action
Provides an effective tool in combating common defenses such as:
• contributory/comparative negligence
• liability waivers
• the economic loss doctrine
Most states construe laws liberally in favor of the consumer to achieve the purpose of the Act
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Possible Civil Remedies
• Actual damages
• Multiplier of damages (double or triple)
• Pre-judgment interest on damages
• Punitive damages
• Attorney’s fees
• Costs
• Litigation expenses
• Civil penalties for violations regardless of actual harm
• Nominal damage for any violation
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Plaintiff’s Burden
Are parties covered by the Act?
• Is the plaintiff a “consumer”?
• Is the defendant a “merchant” or “supplier” or “warrantor”?
Is the trade practice protected or prohibited by the Act?
• Check the definitions of “goods” and “services”
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“Supplier”
• a seller, lessor, licensor, or professional who advertises, solicits, or engages in consumer transactions, or a manufacturer, distributor, or licensor who advertises and sells, leases, or licenses goods or services to be resold, leased, or sublicensed by other persons in consumer transactions.
Va. Code Ann. § 59.1-198
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Defenses – Procedural
• Heightened pleading standard as with fraud, FRCP 9
• Exhaustion of administrative remedies
• Notice requirement
• Specific jurisdiction or venue
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Defenses – Substantive
• Damages (economic, non-economic)
• Exemptions
• Double recovery
• Who can recover? Just plaintiff, or her estate?
• Loss of consortium
Insurance Coverage
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BANKRUPTCY
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Matrices can be used to assign values based upon
various medical facts
› Status as “Confirmed” case
› Days hospitalized
› Days dialyzed
PCA Salmonella Outbreak
› Hundreds of claimants
› Insufficient coverage
› Bankruptcy Court used a matrix to classify claims and distribute
available proceeds based on discreet criteria
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Mass Torts
Peter Pan Salmonella Outbreak
› Thousands of claimants
› Matrix created to classify claims – largely employed to address
less serious claims (i.e., consumption of implicated product,
appropriate symptoms, modest specials and no positive
confirmation to outbreak strain
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Mass Torts (cont.)
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PCA Settlement Valuation Guidelines
Treatment Category * Days Ill Valuation Range*
1-2 ER/Office Visits A/B < 7 days $20-$25K
1-2 ER/Office Visits A/B > 7 days $25K-30K
3+ ER/Office Visits A/B < 7 days $30K-$35K
3+ ER/Office Visits A/B > 7 days $35K-$50K
1 Day Hospital A/B $35K-$50K
2 Days Hospital A/B $45K-$65K
3 Days Hospital A/B $50K-$85K
4 Days Hospital A/B $60K-$125K
5 Days Hospital A/B $90K-$150K
6+ Days Hospital A/B $100K-$200K
*Category A and B claims were claims for Confirmed and Probable cases,
respectively
*Category C Claims – initial value decreased $5,000
*The longer the hospitalization/illness, the more subjective the valuation
*Accounting for age, medical costs, and sequelae
Mass Torts (cont.)
Engage Plaintiff/Defense Lawyers
› Establish a resolution dialogue
› Discourage suit filings
› Maintain credibility
Matrix
› Stress qualifying criteria and documentation
› Insist lawyers work up their cases and demonstrate proof to
some degree
› Maintain a “case by case” mentality
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Settlement Strategy Execution
Mediations
› Invaluable tool in these cases – informs both sides
› Don’t underestimate the power of apology
› An unsuccessful mediation is not a waste of time
MDL Option
› Empowers case management
› Reduces defense costs
› Eliminates inconsistent treatment
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Settlement Strategy Execution (cont.)
Class Actions
› Generally not a suitable tool for food borne illness litigation
› Have consistently fought class certification
Tends to commoditize claims and runs contrary to a “case by case”
mentality
Settle Your Losers (culture-confirmed cases)
› Trial of these cases can incite other filings
› Also pose potential for big verdict or punitive damages
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Settlement Strategy Execution (cont.)
Try Some “Winners” (no causation, modest injury)
› Success will:
Discourage other similar filings
Reduce Plaintiff’s settlement expectations
Overall Philosophy
› To the extent possible, be:
Fair
Consistent
Firm
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Settlement Strategy Execution (cont.)
Bruce Clark
Marler Clark
Alan M. Maxwell
Weinberg Wheeler Hudgins Gunn & Dial
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Thank You