Transcript EXPERT TESTIMONY IN YOUR LIABILITY CASE

EXPERT TESTIMONY
IN YOUR FOOD
LIABILITY CASE
Ken Odza, Esq.
Stoel Rives, LLP
ACI Conference
A jury will be surprised to see DNA
type evidence in a food case?
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True
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False
"CSI" effect
What is PFGE?
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A. Pro Football Game Emcee
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B. Pulse Field Gel Electrophoresis
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C. Something Bill Marler Made up?
PFGE match is a "fingerprint" and
cannot be disputed?
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True
False
Virtually every state recognizes some
form of strict liability for
adulterated food?
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True
False
HUS and TTP are the same thing?
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True
False
HUS - Hemolytic-uremic syndrome
TTP - Thrombotic thrombocytopenic
purpura
Epidemiology addresses whether a
food-borne pathogen caused the
plaintiff ’s illness?
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True
False
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Epidemiology Develops an
“Association” – relationship
between two events that
occur more frequently than
chance
People believe they got sick from the
last thing they ate?
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True
False
Usually, the last thing eaten is the
source
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True
False
People can recall food histories
weeks or months after an outbreak?
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True
False
Public health officials usually have
unlimited resources for investigation of
food borne illness?
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True
False
Jury will tend to believe your nobel
prized expert over the public health
official?
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True
False
Experts should be retained at
moment of alleged outbreak
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True
False
Assist with Health Department Investigation
 Help Identify Early Where Liability Can Be
Challenged
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Lawyers receive an array of scientific
and medical training in law school
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True
False
Spinach
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National outbreak
Multiple confirmed Cases
Confirmed STEC in stool sample
Confirmed STEC in the spinach
PFGE match between spinach and stool
Ate spinach Within Incubation Period
Hamburger….
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Single illness
No positive stool sample
No positive food sample
No PFGE Match
Not clear whether illness is HUS or TTP
Challenging Liability
To Plaintiffs
Issues
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Strict Liability?
Illness Caused By Food?
Food Sold By Defendants?
What else?
Safe Food Handling
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Experienced In Food Production
Background in Microbiology or Public Health
Knowledgeable of Safe Food Handling Practices
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HACCP, etc.
Safe Food Handling
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Probably Not
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Plaintiff will have to rule your
source in and others out
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Want to prove food handling
practices
Epidemiology/Infectious Disease
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Defined As Study of Factors
Affecting Health and Illness
of Populations
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Usually an MD or PhD with
MPH - Backgrounds Vary
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Attempts to Identify Risk
Factors For Disease
Epidemiology/Infectious Disease
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Challenge existence of outbreak or
infection – Probably Not
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Limit scope of Plaintiff ’s damages
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All symptoms consistent of E.Coli?
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How long was illness result of E.Coli versus
something else?
Critical
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Assist in ruling other sources in
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Assist in ruling your client’s source out
Genetic Microbiology
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Study of Bugs’ Genome
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PhD in Genetic
Microbiology
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Research Background
With Food
Genetic Microbiology
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Challenge PFGE match?
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Is There An Alleged PFGE
link?
Are There Positive Stool
and Food samples?
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Hematology
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Study of Blood Diseases
Want Somebody Experienced in Diagnosis of
HUS and TTP
FUTURE PRACTICE TIP: Possible Test To
Determine The Difference May Be In The
Works
Hematology
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HUS or TTP?
Third Party Liability
Issues
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Source Of The Pathogen?
Negligence?
Who is at fault?
 Was your client capable of eliminating pathogen?
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What Else?
Expert Selection
Critical Factors
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Recognized Expertise
Teacher
Likable
Good Motives
What Else?
Finding Experts
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Talking to other experts
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Literature searches
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Cold-calls
Challenging
Admissibility
Chance To Win Without Going to
Trial?
Daubert Standard
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Three major requirements:
(1) the witness must be an expert;
 (2) the procedures and methods used in forming the witness'
opinion must be reliable; and
 (3) the testimony must “fit” the factual dispute at issue so as
to assist the trier of fact.
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Daubert, 509 U.S. at 591
Expert Qualification
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Standard – Discretion of court.
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Factors:
Education
 Practical experience
 Study
 Research
 General background
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Selected Daubert Food Cases
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Qualifications –
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Etienne v. United Corp., 2001 WL 1568598 (Terr.VI.
2001) – “Sous”
Selected Daubert Food Cases
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Reliability
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National Bank, C., El Dorado v. Assoc. Milk P. 191
F.3d 858 (8th Cir. 1999) – Aflatoxin M-1 (carcinogen)
in Milk
Selected Daubert Food Cases
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Unqualified Expert Employing Unreliable
Methodology
Passes Daubert!!
 Meet Winnicki v. Bennigans,
206 WL 319298 (D.N.J. 2006)
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Healthy 21 yo Eats Caesar Salad And Dies
Questions?