Health Law Daily Identification of actual pathogen not required in food poisoning cases
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Friday, November 22, 2019

Identification of actual pathogen not required in food poisoning cases

By Rebecca Mayo, J.D.

A court concluded that a plaintiff in a food poisoning case need not determine the actual foodborne pathogen that caused the illness to show a triable issue exists on causation.

In an unpublished opinion, a California appeals court found that a plaintiff’s inability to identify the exact pathogen that caused their illness is not fatal to a causation finding. Rather, a plaintiff need only produce substantial evidence from which a reasonable jury could infer causation. The court reversed a trial court ruling that no triable issue existed on the issue of causation because a plaintiff’s medical expert acknowledged he could not determine the specific pathogen that caused the plaintiff’s illness (Spellman v. Chipotle Mexican Grill, Inc., November 20, 2019, Aronson, R.).

Complaint. A consumer went to Chipotle with two friends where they all purchased chicken bowls. Within hours of eating the meal, the consumer complained that her stomach hurt. The two friends complained that the suffered a single episode of diarrhea. The consumer went to the emergency room three days later complaining of vomiting, diarrhea, vaginal bleeding, and chills and believed she had a C. diff infection. Testing ruled out the three most common causes of foodborne illness Salmonella, Campylobacter, and Shigella so the doctor diagnosed her with gastroenteritis (stomach flu) and discharged her. Two weeks later the consumer returned to the emergency room where she was diagnosed with abdominal colic, nausea, irritable bowel syndrome, and hypertension. The consumer then tested positive for C. diff less than a week later.

The consumer filed a complaint against Chipotle alleging causes of action for negligence, strict product liability, negligent product liability, and breach of implied warranty. According to the complaint, the consumer suffered food poisoning and the ill-effects thereof as a result of ingesting the unclean, tainted, dirty, adulterated, contaminated, and diseased food stuffs at Chipotle. Both sides presented expert testimony relating to the timing of the onset of foodborne illnesses, the symptoms, and the causes. The trial court granted a summary judgement motion in favor of Chipotle after finding that the consumer failed to show a causal link between a particular kind of food poisoning involved and a particular unsanitary condition found at the restaurant. The consumer appealed.

Causation. The court noted that the basic elements of proof in a food poisoning case are essentially those of any personal injury action and that the causation must be proven within a reasonable medical probability based upon competent expert testimony. The ideal factual situation to prove food poisoning would involve the simultaneous illness of a group of people who eat the same food at the same time and all patients manifest classic food poisoning symptoms and a prompt and microscopic investigation of the suspect food. However, previous decisions and legal treatises have recognized that the ideal situation will not always present itself because often the plaintiff will have recovered to the point where the pathogenic bacteria cannot be identified and the food is not available for examination. Therefore, food poisoning cases are governed by the same basic rules of causation that govern other tort cases and a plaintiff need only produce substantial evidence from which a reasonable jury can infer causation.

Decision. The consumer resented evidence of the restaurant’s history of food safety violations and evidence that the chain’s standardized food preparation methods present a higher risk for illness than some other fast food restaurants. The violations resulted in an ideal growing environment for the pathogens the consumer’s expert identified that could have caused the consumer’s gastroenteritis. Further, the consumer’s expert opined that the situation met the CDC’s definition of a foodborne illness outbreak. According to the court, a jury could infer that Chipotle’s failure to maintain proper food holding temperatures for cooked chicken or other food resulted in the growth of a pathogen on the food used to make the consumer’s chicken bowl resulted in her gastroenteritis. Although the consumer could not identify the pathogen that caused her illness, the consumer needed only to provide enough evidence that a jury could infer causation based on any number of reasonable hypotheses. Because a jury could reasonably find causation, the court found that the consumer showed a triable issue existed as to causation and therefore the trial court erred in granting summary judgment.

The case is No. 30-2015-00775878.

Attorneys: Gary A. Dordick (Dordick Law Corporation) for Christina Spellman. Kendra N. Beckwith (Messner Reeves LLP) for Chipotle Mexican Grill, Inc.

Companies: Chipotle Mexican Grill, Inc.

MainStory: TopStory FoodNews FoodSafetyNews CaliforniaNews

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