The Tenth Circuit Court of Appeals has determined that a 2008 E. coli outbreak involving food prepared and served at a restaurant and a catered event constituted a single occurrence under the relevant insurance policies, thus reversing a magistrate judge’s conclusion that there were two occurrences and application of the policies’ aggregate limits rather than their “per occurrence” limits. Republic Underwriters Ins. Co. v. Moore, No. 11-5075 (10th Cir., decided July 20, 2012). The outbreak apparently infected 341 individuals, and one person died. When it appeared that the policy limits would be exceeded, the insurers brought this interpleader action, requesting that the court declare that the “per occurrence” limits applied, providing $3 million in coverage. Agreeing with the insurance companies, the Tenth Circuit stated, “[h]ere, all the injuries were proximately caused by the restaurant’s ongoing preparation of contaminated food. Hence, there was but one occurrence. It does not matter that…
Tag Archives E. coli
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has proposed new traceback measures to better control and prevent pathogens from triggering foodborne illnesses and outbreaks. Particularly concerned with meat contaminated with Escherichia coli (E. coli), FSIS plans to “move quickly to identify the supplier of the product and any processors who received contaminated product from the supplier, once confirmation is received.” FSIS, which has provided industry guidelines on the matter, requests comments by July 6, 2012. See FSIS Press Release, May 2, 2012; Federal Register, May 7, 2012. FSIS has also issued a proposed rule that would remove the food preservatives sodium benzoate, sodium propionate and benzoic acid from a list of substances prohibited for use in meat or poultry products. Under the proposal, the Food and Drug Administration would continue to approve new safety uses of these substances in meat or poultry products while FSIS would approve them for…
“The new wave of American cuisine has a regressive side, wrapped up in nostalgia for an imagined past… To chefs like [Daniel Patterson], unprocessed milk does not just taste better; it is sentimental and, more important, it is pure,” claims New Yorker staff writer Dana Goodyear in this article chronicling the raw milk movement and its ongoing confrontation with government regulators. Focusing on a California-based group known as “the Rawesome Three” who in 2011 were arrested for—among other charges—running an unlicensed milk plant and processing milk without pasteurization, Goodyear likens the covert world of raw milk to that of marijuana and other illicit substances. Despite the insistence of food safety officials that unpasteurized milk “can carry salmonella, campylobacter, and E. coli O157:H7,” the raw milk acolytes quoted in Goodyear’s report apparently believe in the product’s natural healing properties and will go to great lengths to obtain it, frequenting undercover specialty stores…
A federal grand jury in Illinois has brought criminal indictments against four individuals who allegedly distributed more than 110,000 pounds of Mexican cheese in the United States in 2007 despite Food and Drug Administration (FDA) “hold” orders and also allegedly “washed” cheese returned by dissatisfied customers by scraping off mold and fungus so it could be resold. United States v. Zurita, No. __ (N.D. Ill., indictment returned April 18, 2012). No illnesses or other public health issues were attributed to the adulterated cheese distribution in the six-count indictment. The charges involve three separate shipments of cheese from Mexico that FDA ordered to be held and then later ordered either “detained” or “refused” after testing revealed the presence of Salmonella, E. coli, alkaline phosphate (found in unpasteurized products), and Staphylococcus. The defendants allegedly conspired to distribute the shipments despite FDA orders not to do so. They also allegedly distributed cheese before inspection, failed…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a motion seeking to consolidate and transfer to a multidistrict litigation court three cases filed in federal courts against companies allegedly responsible for a 2009 E. coli outbreak involving contaminated ground beef. In re: Ne. Contaminated Beef Prods. Liab. Litig., MDL No. 2346 (J.P.M.L., D. Conn., decided April 17, 2012). According to the court, the cases do not “contain significant overlapping questions of fact sufficient to warrant centralization of the few involved actions,” and “the likelihood that additional actions will be filed concerning this E. coli outbreak—which occurred nearly two and a half years ago and affected under 30 individuals—seems low. With only three actions pending in two adjacent districts involved in this litigation, movant has failed to convince us that centralization is needed.” The court indicated that it would be “practicable and preferable” for the parties, courts and counsel to informally…
Researchers from Jackson State University in Mississippi have reportedly developed a rapid test for detecting Salmonella on food that uses popcorn-shaped gold nanoparticles. Presented March 27, 2012, at the 243rd National Meeting and Exposition of the American Chemical Society (ACS), the application relies on antibodies attached to gold nanoparticles that then transfer to Salmonella bacteria if present, in the process changing color from pink to blue. “The test for lettuce requires just a tiny sample of lettuce leaf,” explained lead researcher Paresh Ray. “It doesn’t take a trained laboratory technician to perform the test or read the results. If the color changes from pinkish to bluish, that signals the presence of Salmonella. The test is suitable for use in farm fields and in remote areas of the developing world. We believe it may have enormous potential for rapid, on site pathogen detection to avoid the distribution of contaminated foods.” Although they…
The U.S. Government Accountability Office (GAO) has issued a March 2012 report urging the U.S. Department of Agriculture (USDA) to adopt several measures to reduce Shiga toxin-producing Escherichia coli (STEC) in cattle before they are slaughtered. According to GAO, USDA currently recognizes bacteriophages, probiotics, vaccines, and sodium chlorate as preslaughter interventions able to control STEC, but has received few applications for commercial products that use these methods. The report notes that even in the case of STEC vaccines, USDA’s requirements for approval are “unclear” and do not address “some of the unique challenges faced by manufacturers of animal health products.” GAO found that, unlike the Canadian Centre for Veterinary Biologics, USDA fails to specify when it requires laboratory or field demonstrations of vaccine efficacy, resulting in delayed application approval. There is also apparently a lack of available products designed to test for six STEC strains—other than STEC O157:H7—that are now considered…
A recent study has reportedly suggested that some food animals, and chickens in particular, are “likely” reservoirs for the extraintestinal pathogenic E. coli (ExPEC) implicated in community-acquired urinary tract infections (UTIs) among humans. Catherine Racicot Bergeron, et al., “Chicken Reservoirs for Extraintestinal Pathogenic Escherichia coli in Humans, Canada,” Emerging Infectious Diseases, March 2012. According to the study, Canadian researchers compared ExPEC isolates from slaughtered chicken, pork and beef “with the preexisting geographically and temporally matched collection of isolates from humans with UTIs,” in order to determine “whether transmission was human to human through food or whether an animal source was involved.” “In the case of human-to-human transmission through food, E. coli strains from humans would be introduced during the meat preparation process by food handlers. In the case of an animal source, E. coli would derive from the cecal content of the animal itself, and contamination would occur during the slaughtering…
The California Department of Food and Agriculture (CDFA) has issued a statewide recall and quarantine order for raw or unpasteurized milk products implicated in five cases of E. coli O157:H7. According to CDFA, the recall includes raw milk, raw butter, raw cream, raw colostrum, and a raw product called “Qephor” produced by Fresno-based Organic Pastures dairy, which is barred from selling these items “until further notice.” “While laboratory samples of Organic Pastures raw milk have not detected E. coli O157:H7 contamination, epidemiologic data… links [sic] the illnesses with Organic Pastures raw milk,” states a November 15, 2011, CDFA press release explaining that the five known cases apparently involved children whose only common food exposure was unpasteurized milk. The agency has also started “a complete inspection at Organic Pastures dairy—of all facets of operations, from the cows to the bottling plant,” where the quarantine will only be lifted once the facility…
