Personal Injury Law

Dramatic Shift in Plaintiffs' Burden of Proof for Food-Borne Illness Claims?

By Kenneth Odza

A California Court of Appeal panel recently issued a lengthy decision in Sarti v. Salt Creek Ltd. (2008 WL 5006537)  reversing a trial court’s grant of judgment notwithstanding the verdict  (JNOV) in a food-borne illness case involving campylobacter. Sarti is alarming. The California court substantially lightened the plaintiff’s burden of proof by requiring her to come forth with only enough evidence to “infer” a causational nexus between her illness and the defendant’s food. Close examination of the facts in Sarti reveals that the plaintiff in that case may not have proven anything to establish a causational nexus.

Sarti involves a woman who allegedly became ill with campylobacter the morning after she consumed a raw ahi tuna appetizer at the defendant’s restaurant. According to the Cleveland Clinic, campylobacter has a two- to five-day incubation period. The court does not explain in its decision what, if any, expert testimony was introduced to explain how the incubation period was compatible with the plaintiff’s allegations. Without expert testimony explaining away the apparent insurmountable problem of the incubation period, plaintiff's case should fail as a matter of law. In other words, the plaintiff’s case should never have survived summary judgment.

Not only does the incubation period make the plaintiff’s claim problematic, but other sources of contamination were identified. For example, the court explained that “Sarti herself worked as a supermarket checker the day she became ill, and could, at least in theory, have picked up campylobacter from a leaking bag of raw chicken she might have scanned.”

The plaintiff’s expert offered some theories about how the tuna dish could have become cross-contaminated. According to the health department, “Wipe down rags were not being sanitized between in wiping down surfaces. There was also an insufficient amount of sanitizer in the dishwasher. Chicken tongs were sometimes uses for other food. Raw vegetables were stored under ‘raw meat.’”

The Sarti decision does not indicate whether the plaintiff’s expert could identify any of these theories as more or less likely than sources having nothing to do with the defendant’s restaurant (and, in fact, given the incompatibility of the incubation period, one would think that the defendant’s restaurant should be discounted as the cause). The court does not explain how a reasonable jury could conclude that the plaintiff’s cross-contamination theories were any more likely than the alternative theories for the plaintiff’s illness.

Instead of citing evidence or expert testimony, the Sarti court relies upon a series of food-borne illness cases in California going back nearly a century that address issues of causation. All of the cases relied upon predate DNA serotyping of bacteria, pulsed-field gel electrophoresis, modern techniques of epidemiology, microbiology and medicine. Sarti is seemingly a reversion to the dark ages of food science when it was reasonable to believe that the last thing a person ate is what made the person sick. The Sarti court ignores the science and believes that a jury should be able to do the same.

Full post as published by Food Liability Law Blog on December 04, 2008 (boomark / email).