Personal Injury Law

What Is the Utility of Microbiological Testing Data in Litigation?

By Kenneth Odza

As microbiological testing of products in the field or in processing plants becomes more frequent (even ubiquitous), there are questions about its usefulness.  Microbiologists say that the utility of microbiological sampling as it is currently done is marginal at best.  Current testing looks at only a small sample of a product for a small range of bacteria, meaning a contaminated product easily can test negative.

Testing is done largely because it can be, and because some testing is better than none.  For meat and poultry plants, FSIS has announced that testing data will be posted on its Web site.  In the event of a positive test result, food can be recalled or prevented from entering the marketplace.

Because a negative test result proves nothing, it is usually irrelevant in litigation (especially at trial).  The negative result, therefore, is nothing more than a red herring.

Recent breakthroughs in technology may dramatically increase the utility of testing.  These breakthrough technologies can be combined with methods that do not rely on actual culturing of the organisms, allowing microbiologists to examine the entire population of microorganisms present in an ecosystem. This “community profiling” concept entirely changes how microbiologists would interpret testing data. Microbiology promises us the ability to conduct “community profiling” of bacteria on food products.  Dr. Andrew Benson of the University of Nebraska offered fascinating insight into this emerging technology at the April 11-12 food law conference at Seattle University Law School.  While the approach cannot yet get around the limited sample size, the ability to examine the content of the entire community of microorganisms in a sample may offer industry more reliable information and the chance to use microbiological testing to reduce risk in a meaningful way. Stay tuned as technologies develop. . .

Full post as published by Food Liability Law Blog on May 07, 2008 (boomark / email).