Jury Decisions and Awards in Personal Injury Lawsuits Involving Foodborne Pathogens

A study of food poisoning jury verdicts in 32 states (1988-1997) revealed that plaintiffs won awards in food poisoning jury trials 31% of the time, and received a median award of $25,560. Multivariate analyses were performed to examine the effects of various factors on food poisoning jury verdicts and on the size of the award. The odds of a plaintiff victory increased if a foodborne pathogen or illness was specified, and decreased if defendants had "deep pockets" or used medical expert testimony. Illnesses involving hospitalization, death, or chronic complications received higher awards than other illnesses. ********** Consumption of food contaminated with microbial pathogens (bacteria, parasites, viruses, fungi, and their toxins) causes an estimated 76 million illnesses, 325,000 hospitalizations, and 5,000 deaths each year in the United States (Mead et al. 1999). Two to three percent of consumers with foodborne illness develop chronic complications such as reactive arthritis or kidney failure. Pathogen-contaminated foods consequently represent an important cause of unintentional injury and death. The annual medical costs, productivity losses, and costs of premature deaths due to five major foodborne pathogens in the United States are estimated to be $6.9 billion (Economic Research Service 2001). Most foodborne illnesses are relatively mild and self-limiting. As a result, the average cost to ill consumers and their families is likely to be small. However, the more severe illnesses impose high monetary costs, including medical costs and lost income, as well as nonmonetary costs such as pain and suffering. The out-of-pocket costs for ill consumers are reduced when some of these costs are borne by other parties such as employers, private health insurers, or public health insurance programs. Individuals affected by foodborne illness who believe they can identify the injurer (i.e., the party responsible for the foodborne illness) and wish to pursue a claim can seek compensation for their losses by directly contacting the injurer, contacting the injurer's insurer, consulting an attorney about pursuing litigation, or some combination of these actions (Hensler et al. 1991). A claim is a generic term that encompasses any effort by a consumer to obtain compensation, directly or through an attorney, for injuries suffered, and also includes lawsuits. Some legal experts believe that the vast majority of food poisoning claims are genuine and therefore are resolved without a lawsuit. Claims that become lawsuits are typically those where there is a serious causation question or where the amount of damages is disputed (Clark 2000). (1) Product liability law governs most legal actions arising from food poisoning. This branch of tort law describes the circumstances under which one can recover damages for a defective food item. The laws of individual states govern the nature and extent of compensation that may be awarded for injuries or deaths due to contaminated food products. Buzby and Frenzen (1999) outline the causes of action against firms and other defendants for food poisoning cases. Here, for simplicity we generically use the term "firm" to refer to all defendants, whether they are companies or operations that produce, process, distribute, or sell food products (e.g., farmers, retailers, restauranteurs, etc.), or the occasional individuals named in a food poisoning lawsuit such as proprietors, employees such as food servers, or hosts of informal meals or other events where food was served. Recent examples of errors by firms that have resulted in foodborne illness outbreaks and associated lawsuits include using contaminated fruit to produce unpasteurized juice, falling to protect food from contamination after processing, and serving undercooked hamburgers to restaurant customers. Consumers themselves may be fully responsible for some foodborne illnesses, or may share this responsibility with firms. …