My office has represented many victims of food poisoning, or foodborne illness, including victims of some high profile Rhode Island food poisoning cases. I have helped victims of the DeFusco’s Bakery salmonella outbreak as well as six (6) victims of the norovirus outbreak that led to the Rhode Island Department of Health temporarily closing Uncle Sushi restaurant. Outside of high profile cases like this, food poisoning occurs much more often than people may think and it can range in seriousness from a relatively minor 24 hour stomach bug all the way to death. The Center for Disease Control suggests there are as many as 76 million cases of food poisoning each year of which 300,000 people seek medical treatment and 5,000 people die. Some of the most common pathogens that result in food poisoning are bacterias such as : Salmonella, E. Coli, Clostridium Perfringens, Shigella, Listeria, and more.
There are several theories of liability available in a foodborne illness case. Essentially, food poisoning lawsuits are product liability cases. The argument is that the product released from the manufacturer was in a dangerous and defective condition when it left the hands of the producer and remained in that dangerous condition when it was received by the consumer. We then have to show that the consumer used the product in the manner it was anticipated (this obviously refers to eating the product in food poisoning cases) and that the product caused the food poisoning and associated injuries.
You can also proceed with a food poisoning case under the more common theory of negligence. As in any other case of negligence, with a food poisoning case, the plaintiff looks to prove that the defendant owed the consumer a duty of care and that through its negligent actions breached that duty of care resulting in ultimate harm to the consumer. For example, a restaurant buys eggs that are not tainted with bacteria and are safe to consume. They leave the eggs outside of a refrigerator, however, for several days and then use the eggs in the preparation of a dish. Because of their negligence in not properly handling the eggs, they have grown salmonella which was transferred to the consumer while eating the prepared dish. By ignoring all state law and well known food safety handling guidelines, the restaurant committed an act of negligence and would be liable.
There are a number of serious complications in winning a food poisoning case. The primary difficulty comes in determining what food led to the illness. Humans eat 3-4 times a day and foodborne illness can sometimes take 24 hours to show symptoms. Looking back on your day it may be difficult to identify what food was the direct cause of the poisoning. Furthermore, even if you know what food caused the illness, it remains the plaintiff’s burden to show that the specific food was contaminated and led to the illness.
In some cases, the Rhode Island Department of Health will receive several complaints about a particular food or food source and will begin an investigation which can aid in proving that the food was contaminated. In more difficult cases, your food poisoning attorney may order independent laboratory testing of the suspect food. Of course, this requires that you still possess an uneaten sample of the food. Finally, if there is no direct evidence to link the food with the sickness, your food poisoning attorney may file a lawsuit against the food producer or manufacturer to try and obtain its history of similar complaints. If the defendant has a poor record of food handling and safety, it will help build your case against the defendant.
Based on the above problems, you can see that it is imperative that you call a foodborne illness attorney right away if you sense that you were the victim of food poisoning. Time is absolutely critical in these types of cases. If you feel that you are the victim of food poisoning, try to retain or preserve some of the suspect food (if possible), keep any and all receipts showing that you purchased the suspect food and contact your doctor and/or the Rhode Island Department of Health right away.