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The Legal Implications of Secondary Infections

By Dan Flynn and Suzanna Schreck

When contaminated food is placed into the stream of commerce, it is not only those who consume the food who will become injured.   For every serving of lettuce or ground beef contaminated with E. coli O157:H7 and each serving of sprouts or peanut butter contaminated with Salmonella, there is a significant chance that someone beyond the consumer of the product will fall ill.   Along with the diarrhea and vomiting that accompany food poisoning comes the spread of the bacterial or viral pathogen that caused the original illness.  This, in turn, leads to additional infections in those with contact with the sick person or their surroundings, including family members, co-workers, school, and daycare mates.  

This phenomenon is referred to as "secondary infection" and is very common.  Person-to-person transmission of foodborne pathogens is both common and exceedingly well-documented.[1,2] Secondary transmission cases are well understood in the scientific community to be an inevitable part of any foodborne illness outbreak.[3] Epidemiologists who have worked with us at Marler Clark have estimated to me that at least one in ten cases in an outbreak is likely to be a secondary infection.

What then are the legal consequences that flow from secondary infection?  The short answer is that the producers and sellers of contaminated food are no less liable to victims of secondary infection than they are to those who actually purchased and ate the food.

The first legal hurdle for a secondary infection victim was cleared nearly one hundred years ago, when the requirement of "privity" was removed from claims of injury from products.   Under the old privity requirements, only those who had a direct contractual relationship to the seller (i.e. the buyer) had the legal right to make claims.  Under such a requirement, even a consumer of contaminated food who was not the direct purchaser would have been without remedy.  Famed New York judge Benjamin Cardozo did away with this requirement in the case of MacPherson v. Buick Motor Co. (1916), involving a car's defective wheel.  Judge Cardozo's ruling only directly impacted New York law, but other states followed.   In Washington, the lack of a privity requirement is spelled out directly by statute.   "A claim may be asserted under this chapter even though the claimant did not buy the product from, or enter into any contractual relationship with, the product seller." RCW 7.72.010(5).

More recently, manufacturers and sellers of contaminated food have attempted to argue that they cannot be held liable where the victim had no direct contact with the product.   In a case tried by the attorneys at Marler Clark, this argument was rejected on appeal by the Washington Courts.  The victim in the case was a four-year-old girl who suffered an E. coli O157:H7 infection (and developed hemolytic uremic syndrome).   The source of the E. coli O157:H7 outbreak was ground beef in a taco-meal, but the victim did not eat the meal.  Rather she had repeated contacts with two children who ate the meal, one of whom became infected.  The defendant argued to the appeals court that it could not be held liable where the injured party had no actual contact with the defective product (i.e. the taco meal).   The court disagreed.  The court likened the girl's claim to a victim in a previous case that had been injured while assisting the victim of someone injured in an accident caused by a defective motorcycle.  The court explained the reasoning in allowing both claims under product liability law:

"There, as here, [the claimant] had no direct contact with the [product] . He was neither a driver nor a passenger. He was not struck by the [motorcycle]. The court nonetheless held there were no policy reasons demonstrating [the defendant's] 'liability should be cut off as a matter of law.' Nor do we find any policy reasons to end the [defendant's] liability here.  The [Product Liability] Act does not limit "claimants" to those who have direct contact with the product. Indeed, the Act broadly defines the class of persons who may bring a product liability claim."   Almquist v. Finley Sch. Dist. No. 53, 114 Wn. App. 395 (Wash. Ct. App. 2002)

Defendants are likewise very unlikely to be successful with arguments based on the legal concept of "foreseeability."   It is unlikely that the foreseeability of particular harm and injury can be a defense in a product liability claim.   Even if the defense is generally available, however, it would not be successful in the secondary infection context; as such outcomes are entirely predictable.  

Secondary infections are a predictable outcome of the sale of contaminated food.   A person sickened as the result of a secondary infection that can demonstrate the product source of the original illness has a claim that is well founded in both law and science.

References

1.  See e.g. K. Ludwig, "Outbreak of Escherichia coli O157:H7 Infection in a Large Family," Eur. J. Clin. Microb. Infect. Dis. Vol. 16, at 238-41 (1997)

2.  P. Rowe, "Diarrhea in Close Contacts As a Risk Factor for Childhood Hemolytic Uremic Syndrome," Epidem. Infect. 110:9-16 (1993).

3. See E. Belongia, et al., "Transmission of Escherichia coli O157:H7 Infection in Minnesota Child-Care Facilities," JAMA, at 887 (Feb. 17, 1993) (describing the inevitable spread of illness from primary to secondary cases).

Full post as published by Food Safety News on July 12, 2010 (boomark / email).