William Marler, “Serving Up Trouble,” Trial, January 2009

Food litigator William Marler discusses the 2006 spinach E. coli outbreak in this article, which provides an overview of the issues that plaintiffs’ lawyers should consider when they represent clients allegedly sickened by contaminated fresh produce. Among the issues flagged are (i) which entities are liable under a strict products liability scheme; (ii) what effect insurance and indemnity agreements will have on “the all-important questions of who is going to pay”; and (iii) whether the industry’s or individual corporation’s knowledge of the risk gives rise to the availability of punitive damages. The article concludes with a brief consideration of how the industry is regulated and why foodborne pathogens continue to sicken consumers. Marler argues that “the most expedient step in preventing another deadly foodborne illness outbreak like the 2006 Dole spinach outbreak is to push for greater corporate responsibility regarding the oversight of food producers. The lives of American consumers depend on it.”