On Feb. 14, 2007, ConAgra Foods, Inc. issued a voluntary recall of Peter Pan and Great Value peanut butters after the spreads were linked to a salmonella outbreak that has sickened almost 300 people in 39 states. According to the U.S. Centers for Disease Control and Prevention (the “CDC”), product testing confirmed the presence of the outbreak strain of Salmonella Tennessee in opened jars of peanut butter that were obtained from consumers who had become ill.1 By Feb. 23, 2007, plaintiffs had already filed class action lawsuits against ConAgra in Pennsylvania, Florida, and Washington related to the outbreak.
The peanut butter recall follows a number of other high-profile outbreaks of foodborne illnesses involving salmonella and other pathogens such as E. coli and Listeria in the past few years. For example, on Dec. 13, 2006, the CDC reported that 71 people had become ill after eating at Taco Bell restaurants in five states. The CDC confirmed that at least 48 of the 71 patients tested positive for a single strain of E. coli that was traced to the restaurants. Just two months earlier, the CDC announced that 199 people had been infected with another strain of E. coli bacteria that was traced to the consumption of tainted spinach. In another notable case, three people died and 555 contracted Hepatitis A after consuming green onions at a single restaurant in Pennsylvania in 2003.
Despite the often large numbers of people impacted in similar ways by these and other outbreaks, courts have generally been reluctant to certify personal injury claims arising from food contamination as class actions. This article will examine the rationale behind these decisions and whether the development of new technology may lead courts to reexamine their reluctance to certify class actions following future outbreaks.
Food Contamination in the United States is a Significant Issue
The CDC estimates that foodborne diseases cause approximately 76 million illnesses, 325,000 hospitalizations, and 5,000 deaths in the United States each year.5 Thus, contaminated food products cause more deaths each year than the combined total of all 15,000 products regulated by the U.S. Consumer Products Safety Commission. Foodborne illnesses now account for approximately 1 percent of all hospitalizations and 1 out of every 500 deaths in the United States.
In 2001, the U.S. Department of Agriculture, Economic Research Service, issued a report that sought to identify and analyze every jury verdict, in both state and federal courts, that involved a foodborne illness from 1988 to 1997. The report identified 178 such cases and demonstrated the challenges that plaintiffs in these cases faced. For example, more than two-thirds (68.6 percent) of the plaintiffs in these foodborne illness cases failed to recover any damages whatsoever. In the 55 cases in which plaintiffs did prevail, the median award was just $25,560. Moreover, the average time between the incidents that resulted in the plaintiffs’ illnesses and the jury verdicts for the cases examined in the report was 3.1 years.
The Department of Agriculture report noted that none of the cases that resulted in a jury verdict was a class action. Nonetheless, the report noted that the authors had observed an increase in class actions involving foodborne illnesses, perhaps because of the widespread media coverage surrounding the class action brought against Jack in the Box. Following an outbreak of E. coli O157:H7 in 1993 that was blamed on undercooked hamburgers and that sickened more than 600 people, the class action against Jack in the Box was settled for $12 million.
Causation Issues Are a Significant Hurdle to Class Certification
Plaintiffs in federal court must satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure before a class action may be certified. The Advisory Committee’s comments to Rule 23, however, suggest that class actions are not ordinarily appropriate to resolve claims arising from mass accidents such as outbreaks of foodborne illness:
A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.
One of the first cases to consider the certification of a class action under Rule 23 to an outbreak of foodborne illness was Hernandez v. Motor Vessel Skywards. Hernandez involved a class action complaint brought on behalf of 655 passengers, most of whom allegedly became ill after consuming contaminated food or water on their cruise ship. Among other things, the complaint raised claims for negligence in exposing the plaintiffs to contaminated food and water and for breach of the implied warranty of fitness of the food and water.
In its consideration of the plaintiffs’ motion for class certification, the Hernandez court distinguished between those issues that were “subject to a uniform determination” and those that the court believed to be more individual in nature. As a result, the court granted certification of the class only on the question of whether the defendants were negligent in preparing either the drinking water or food that was made available to the passengers. Conversely, the court found the remaining issues—most notably the proximate cause of each passenger’s illness—to be individual in nature, and therefore, not subject to class treatment. For example, the court noted that the symptoms exhibited by some of the passengers may have been caused by seasickness or some other issue unrelated to the alleged contamination.
Similarly, a Pennsylvania trial court recently declined to certify a class of individuals who were sickened after eating at a local swim club, in part because of the court’s conclusion that causation could not be proved on a class-wide basis. Kennedy v. Cannuli Bros., Inc. The Kennedy court reasoned that there may have been intervening and possibly superseding causes of the plaintiffs’ illnesses because their symptoms did not become apparent for several days after the meal at issue.
Nonetheless, a few courts have found that causation issues may be resolved in a foodborne illness case on a class-wide basis. In Farrenholz v. Mad Crab, Inc. the Ohio Court of Appeals affirmed the trial court’s decision to certify a class action arising from food contamination at a Strongsville, Ohio, restaurant. The plaintiff’s motion for class certification incorporated an affidavit from a supervisor of the local board of health who reported that the board had concluded the likely source of the contaminated food was the restaurant.
The three judges in Farrenholz disagreed as to whether the issue of proximate causation could be proved on a class-wide basis so as to warrant class certification. The majority opinion concluded that class certification was proper because the “common question here is causation, which has to be proven on a class-wide basis. Whether damages may differ among the claimants is not a reason to deny class certification.” The dissent, however, argued that because the trial court would need to resolve several fact questions regarding causation for each plaintiff, including the presence or absence of any pre-existing conditions, the case was not appropriate for class treatment.
Scientific Advances May Alleviate Concerns About Causation
New advances in technology may now enable plaintiffs to more fully prove causation issues in class action cases involving foodborne illnesses. For example, “DNA fingerprinting” has been used to trace the sources of contamination in more recent outbreaks. In its Oct. 6, 2006 update on the outbreak of E. coli from fresh spinach, the CDC reported that that stool samples from a 2-year-old child who died Sept. 20 contained E. coli O157 with a “DNA fingerprint” pattern that matched the outbreak strain. The same update also reported E. coli O157 was isolated from 13 packages of spinach that was supplied by patients living in 10 states. The “DNA fingerprints” of all 13 of these E. coli matched that of the outbreak strain. The CDC reports that DNA fingerprinting is now routinely done at public health laboratories in all states as part of the network of public health laboratories that sub-type bacteria.
To the extent that it is available following a given outbreak, companies involved in food preparation, processing, and packaging should anticipate that class action plaintiffs will attempt to rely on DNA fingerprinting to prove causation on a class-wide basis following outbreaks of foodborne illness. Consequently, defendants in such cases will need to become familiar with the capabilities and limitations of DNA fingerprinting and other techniques, depending on the circumstances of each case.