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Food poisoning

This year, approximately 1 in 6 Americans will become sickened as a result of foodborne disease, according to the U.S. Centers for Disease Control and Prevention. That’s 48 million people, or 15 percent of the population. Of those, nearly 130,000 will be hospitalized and 3,000 to 5,000 will die. Young children, older adults and those with compromised immune systems will be the most vulnerable to serious illness.

These are preventable illnesses, and The Law Offices of Jeffrey S. Glassman, Boston personal injury attorneys, are committed to fighting for the rights of those who have suffered as a result of the carelessness of food cultivators, processors and distributors.

Whether it is improper levels of pesticides or contamination during manufacturing or poor preparation or storage, there are many different sources of food poisoning. Not every instance of foodborne illness will warrant litigation, but many do.

Despite its commonality, food poisoning can be incredibly distressing, and in some cases, it may be life-threatening. Illness ranges from mild discomfort of the intestinal tract to severe dehydration and bloody diarrhea.

In order to succeed in a food poisoning lawsuit, one must generally prove:

  • Food plaintiff consumed was contaminated, and
  • Contamination caused illness

This sounds fairly straightforward, but it can in fact be challenging, especially if there is a significant delay in the time during which you ate the food and the onset of the illness. Unless there are a spate of similar cases locally or across the country, it may be difficult to pinpoint the exact source of the contaminated food.

Plaintiffs may have increased leverage where a governmental agency – say the U.S. Food and Drug Administration or local health department – has linked a food plaintiff consumed with an outbreak of related illness.

Although there are more than 250 different diseases that are known to cause food poisoning, some of the most commonly-cited include:

  • Salmonella
  • Shigella
  • E. Coli
  • Campylobacter
  • Listeria
  • norovirus
  • botulism
  • Vibrio
  • Yersinia
  • Cryptosporidium
  • Cyclospora

While a wide range of foods have historically caused illness, the most common are:

  • Produce (46 percent of illness, 23 percent of deaths)
  • Meat and poultry (22 percent of illness, 29 percent of deaths)
  • Dairy and Eggs (20 percent of illness, 15 percent of deaths)
  • Fish and shellfish (6 percent of illness, 6 percent of deaths)

Usually, food-related illness stems from unsafe, unhealthy or unsanitary food handling, preparation and storage.

Simply becoming sick might be enough to technically satisfy the legal requirements necessary to prove liability. However, the severity of one’s illness will determine whether it will be worth it to file a lawsuit. For example, if you suffered relatively mild illness resulting in lost work and the cost of an emergency room trip, your attorney may be able to negotiate a settlement with the supplier to cover your costs without ever having to step foot in a courtroom.

On the other hand, where illness had a more serious impact and the costs are much higher, grocery stores, restaurants and other food manufacturers and suppliers may be less likely to simply pay what is requested. In those cases, we will explore the option of litigation. There could still be a settlement prior to trial, but we always work our cases to prepare for a trial.

Where liability can be established, victims of food poisoning may be entitled to collect compensation for:

  • Medical bills
  • Lost wages (including future income)
  • Out-of-pocket expenses
  • Pain and suffering
  • Emotional distress
  • Loss of consortium
Legal Theories of Liability in Food Poisoning

Most of the time, food illness lawsuits are filed as product liability claims. The underlying principle is defendant owed a duty of care to sell/distribute a safe product, failed in that duty and plaintiff was sickened as a result.

The specific theories upon which we might assert such a claim might include:

  • Negligence. Here, we would assert defendant(s) acted with negligence in manufacturing or supplying food that was contaminated and as a result, plaintiff got sick. We would seek to prove defendant(s) failed to use reasonable care in growing, selling or otherwise distributing the food product.
  • Strict liability. Massachusetts is a state that recognizes strict liability claims. That means if a claim was asserted under this standard, plaintiff would only need to show defendant’s product was contaminated and the contamination caused the illness. It would not be necessary to prove defendant failed to act with reasonable care.
  • Breach of warranties. Massachusetts and the federal government impose minimum standards on products known as implied warranties. These generally mean the consumer has a right to presume the product is safe if used as intended. When that is not the case, it may be a breach of warranty and grounds for a lawsuit. Similarly, there may be “express warranties,” or those explicitly stated by defendant (i.e., “inspected” or “triple-washed”). Failure to abide by those promises could form the basis of litigation.

If you have questions about whether you have a worthwhile case, call us today to learn how we can help.

Contact the Law Offices of Jeffrey S. Glassman today for a free and confidential consultation.

Call (617) 367-2900 – NO FEE UNLESS SUCCESSFUL

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