LAW SUITS RELATING TO JENSEN FARMS LISTERIA OUTBREAK BEGIN TO EMERGE
by John McCarthy | October 6th, 2011
Blog, Food Law, Foodborne Illness Claims, Personal Injury Claims
Anyone who keeps an eye on topical food safety issues will be aware that the past few weeks have seen the blogosphere ablaze with reports of a spate of foodborne illness of horrific proportions playing itself out in the US. The Jensen Farms Cantaloupe Listeria outbreak has straddled the United States from east coast to west, with tainted cantaloupes having been shipped to at least 25 states.
Indeed, the Colorado cantaloupe crop has been distributed so far and wide that Jensen Farms cannot say with certainty precisely where all of its fruit has ended up. This ever increasing trend of distributing foods over expansive areas and populations may be one of the reasons why large-scale incidents of serious food poisoning would appear to be increasing in frequency.
As of 5 October 2011 the United States Centres for Disease Control and Prevention reported a total of 101 confirmed cases, 18 deaths and one miscarriage.
Listeria monocytogenes is ubiquitous in the environment and is to be found in water, soil, animals and birds. One of the most alarming characteristics of the pathogen is that, unlike most other bugs which are commonly associated with food poisoning, it is able to grow at temperatures at which foods are typically refrigerated. Accordingly, unlike many other pathogens, if there are traces of listeria on food when it is purchased these will continue to grow in number over time while the food is stored in the fridge.
Healthy adults who are infected will very often experience relatively mild symptoms typical of what might be referred to as trivial food poisoning, such as nausea and diarrhea. However, vulnerable groups such as the elderly and those with compromised immune systems may develop a condition known as listeriosis. Pregnant women who develop listeriosis may very well experience quite mild symptoms themselves but infection can result in miscarriage, still birth or premature delivery.
The fact that listeriosis can take anywhere between two to six weeks to develop means that the number of casualties in the present US outbreak may yet increase, possibly significantly.
While death rates of 35% of those who develop listeriosis have been observed previously (such as in the 2008 Canadian Maple Leaf incident) the death rate in the Jensen Farms outbreak is presently reported to be somewhere around 18%.
The fact that multiple law suits would arise out of an incident of this nature is hardly surprising. However, the speed at which the first raft of these cases has emerged is nevertheless impressive with Bill Marler confirming that six actions have already been commenced at the time of writing.
So what would the position be if an outbreak of this nature were to occur in Ireland?
The Liability for Defective Products Act, 1991 (‘LDPA’) provides that strict liability will attach to any producer who places unsafe food on the market. An especially relevant aspect of the LDPA’s scope in the context of an outbreak like the Jensen Farms one is that it applies to all food products, including primary agricultural products which have not undergone initial processing.
When it was first enacted in 1991 the LDPA expressly excluded such produce but an amendment made in 2000 removed this exclusion. As a result, unprocessed fruits and vegetables of any kind, such as cantaloupes, which cause illness or death due to the presence of pathogens are within the scope of the LDPA, meaning that anyone affected would be entitled to be compensated without the need to prove that the contamination resulted from negligence or breach of duty on the part of the producer.
The inclusion of primary agricultural products in the LDPA’s strict liability code was intended to contribute to ensuring a higher level of consumer protection by encouraging strict adherence to standards and safeguards and a responsible attitude on the part of producers to the safety of their produce.
In this context, bearing in mind that a strict liability regime also pertains in the US, it will be interesting to learn in the fullness of time whether the investigation into the present Jensen Farms outbreak reveals that contamination resulted notwithstanding the producer’s observance of exacting safety standards or whether it will be shown that this terrible episode arose as a consequence of unacceptable production practices.
