Last week, lunch came back to bite dozens of unsuspecting diners throughout Washington and Oregon. Something in Chipotle’s fresh, healthy, and responsibly-sourced fast food caused uncharacteristic sickness for those partaking. The likely culprit, E. coli bacteria, left Chipotle patrons seriously ill and angry. Ironically, the fresh food that Chipotle bases its reputation on may also swiftly produce its demise.  In this year alone, Chipotle and its fans have suffered several outbreaks. Nearly 100 Californian customers became ill with norovirus after dining at Chipotle in August of this year. Soon after, several dozen people were infected with salmonella from tomatoes at Chipotle restaurants in Minnesota.

The contamination could haunt Chipotle for years to come. Chipotle may need to expend an enormous effort repairing its reputation, but could also face significant litigation resulting from these food contamination incidents.  Indeed, the recent E. coli outbreak in the Pacific Northwest has already led to the filing of two lawsuits. 

Although the recent Chipotle food contamination incidents have received widespread publicity, they are not isolated.  In 1998 a U.S. Consumer Product Safety Commission study revealed that contaminated food products caused more deaths each year than the combined totals for all 15,000 products regulated by the CPSC.  The study reported that in 1996, for example, there were 3,700 accidental deaths related to contaminated food products.

Food contamination impacts growers, packaging plants and food suppliers, restaurants, and stores. When a restaurant or other food supplier is alleged to be responsible for a food contamination issue, affected customers may sue the entire chain of distribution under either a strict liability product theory or under common law negligence. These food illness lawsuits against restaurants or other food suppliers provide fertile defense grounds, even if just on causation.  First, people affected by contaminated food often don’t become ill for several days after eating the affected food.  This can make identifying the source of the contaminated food exceedingly difficult. Second, a plaintiff will have difficulty proving causation without offering physical evidence of the contaminated (and most often consumed) food.

Nevertheless, each year a number of lawsuits are filed against restaurants, grocery stores or other food providers for food borne illnesses.  Knowing causation will be a key issue, it is very important that potential food contamination defendants aggressively and quickly identify the source of contamination.  This will involve the retention of outside experts with expertise in food handling requirements, industry practices, as well as state and federal regulations.  Potential defendants should also retain an epidemiologist or other medical experts to examine medical records to connect an illness to a particular food source.

In addition to engaging with industry and scientific/medical experts, potential defendants should immediately gather and review all relevant supplier agreements to comply with any legal obligations or, alternately, to enforce any available indemnification and duty to defend provisions.  Further, potential defendants should quickly engage supply chain personnel in the organization in an effort to narrow down the source of the outbreak by evaluating shipping information and identification of downstream suppliers as well as upstream entities in the chain of custody.

Finally, when engaged in food contamination litigation a restaurant or food supplier will likely be fighting a comparable battle in the courts of public opinion. Media coverage of food-related illnesses tends to be abundant and largely negative.  Potential defendants should consider utilizing public relations experts to work in concert with the litigation team to deliver accurate and consistent messaging to the public in an effort to protect the reputation and future business for the company.

Obviously, the best litigation defense for restaurants and other food suppliers is to avoid litigation altogether by maintaining and enforcing strict food handling requirements to reduce any potential food safety hazards as part of their daily operations.  In parallel, however, a prepared company should anticipate litigation and have a well-developed response plan in place and ready for immediate implementation should an unfortunate food contamination issue arise.