Real Events Happening Daily to Real People

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Real Events Happening Daily to Real People

• 76 million cases of foodborne illness annually1
• 325,000 hospitalizations
• 5,000 deaths
• Medical costs, productivity losses, costs of
  premature death costs 6.9 billion dollars a year2

1Mead PS, et al., Food-related illness and death
in the United States, Emerg Infect Dis.
5607-614. 1999. 2 Buzby, et al. Product
Liability and Microbial Foodborne Illness
(2001)ERS Agricultural Economic Report No. 799.
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Civil Litigation A Tort How it Really Works

• Strict liability
• It is their fault Period!
• Negligence
• Did they act reasonably?
• Punitive damages
• Did they act with conscious disregard of a known
  safety risk?

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Strict Liability for Food a Bit(e) of History
a manufacturer of a food product under modern
conditions impliedly warrants his goods and that
warranty is available to all who may be damaged
by reason of its use in the legitimate channels
of trade Mazetti v. Armour Co.,
75 Wash. 622 (1913)
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Who is a Manufacturer?

• A manufacturer is defined as a product seller
  who designs, produces, makes, fabricates,
  constructs, or remanufactures the relevant
  product or component part of a product before its
  sale to a user or consumer.

RCW 7.72.010(2) see also Washburn v. Beatt
Equipment Co., 120 Wn.2d 246 (1992)
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The Legal Standard Strict Liability

• The focus is on the product not the conduct
• They are liable if
• The product was unsafe
• The product caused the injury

STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO
FAULT.
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Its called STRICT Liability for a Reason

• The only defense is prevention
• Wishful thinking does not help
• If they manufacture a product that causes someone
  to be sick they are going to pay IF they get
  caught

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Why Strict Liability?

• Puts pressure on those (manufacturers) that most
  likely could correct the problem in the first
  place
• Puts the cost of settlements and verdicts
  directly onto those (manufacturers) that profit
  from the product
• Creates incentive not to let it happen again

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The reason for excluding non-manufacturing
retailers from strict liability is to distinguish
between those who have actual control over the
product and those who act as mere conduits in the
chain of distribution.
Negligence Is The Legal Standard Applied To
Non-Manufacturers
See Butello v. S.A. Woods-Yates Am. Mach. Co.,
72 Wn. App. 397, 404 (1993).
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Punitive (or Exemplary) Damages

• Punish the defendant for its conduct
• Deter others from similar conduct.

Historically, such damages were awarded to
discourage intentional wrongdoing, wanton and
reckless misconduct, and outrageous behavior.
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The Legal Arsenal

• Interrogatories
• Requests for production
• Requests for inspection
• Request for admission
• Third-party subpoenas
• Depositions
• Motions to compel

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But, Litigation Can Work A History Lesson

• Jack in the Box - 1993
• Odwalla - 1996

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What Will a Jury Think?
A Jury

12 Consumers
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Can A Chinese Manufacturer be Sued?

• Can the manufacturer be subject directly to the
  jurisdiction of a U.S. Court?
• Does the manufacturer have assets in the U.S.
  that can be attached after a U.S. Court
  judgment?
• Answer is likely not However

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What Is Likely To Happen

• Contracts with Chinese exporters will be amended
  to include specific indemnities in favor of the
  importer on product safety and quality issues.
• Contracts with Chinese exporters will be amended
  to include a specific provision requiring the
  Chinese seller to obtain and maintain sufficient
  product and general liability insurance, with a
  reputable U.S. or international insurance
  carrier, or to have sufficient, attachable,
  assets in the U.S.

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Litigation Lessons Learned

• If you manufacturer a contaminated product and
  ship it to the U.S. and consumers are sickened,
  and if those illness are linked
• You may be sued by the consumer
• You will be sued by the importer
• You will lose both consumers and customers
• You will be subject to intense media coverage
• You may be subject to regulatory action
• You may be subject to criminal sanctions

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William D. MarlerMarler Clark LLP PS6600
Columbia Tower701 Fifth AvenueSeattle,
Washington 98104www.marlerblog.com

• Questions?