Less than a third of the jury verdicts tracked by ERS from 1988-97 awarded compensation to plaintiffs in foodborne illness cases. Plaintiffs who alleged illness from a specific pathogen were more likely to receive compensation (42 percent) than plaintiffs who did not, and the expected award was far higher when a specific pathogen or illness was alleged ($82,333 vs. $4,554). Salmonella was the most frequently cited pathogen, followed by hepatitis (any type).

A major difficulty in proving allegations of foodborne disease is the sometimes long incubation period before symptoms develop. Symptoms due to invasive Listeria monocytogenes, for example, may not develop for 2-6 weeks (see chart). This time lag makes it difficult to trace problems back to the specific cause of illness. Several meals may have been eaten before the foodborne disease symptoms appeared. In general, the difficulty of tracing a foodborne illness back to a specific food source increases as the incubation period lengthens.

Both food firms and consumers make food-handling errors that lead to foodborne illness, but the proportion of illnesses due to each is unknown due to data limitations.

The Legal System Provides Limited Incentives for Firms to Produce Safer Food

Legal observers suspect that most foodborne illness claims, perhaps as many as 95 percent, are settled confidentially out of court. Analogies with other types of product liability cases suggest that those settled out of court may have the strongest claims, while those that go to trial may have serious disputes about the causation of the illness or the amount of damages to be awarded. With confidential settlements, direct economic signals from the legal system about the costs of producing pathogen-contaminated food are usually restricted to the responsible firm and its insurer.

Because jury verdicts find firms responsible for microbial contamination in relatively few cases, the legal system provides only limited feedback to firms about the need for greater food safety. Nonetheless, such firms cannot ignore the potential legal consequences and catastrophic losses of making or distributing contaminated food products that might cause illness or death.

The small percentage of foodborne illness lawsuits that are resolved in the public view may indirectly influence the behavior of other firms. This is particularly true for lawsuits that attract adverse media attention. Other firms may decide to increase investments in food safety after observing the economic costs to defendant firms accused of producing contaminated food products that caused illness.

For example, an effective, industry-generated, food safety reform occurred after the large 1993 outbreak from hamburgers contaminated with E. coli O157 and subsequent litigation. The restaurant chain revamped its food safety program and significantly altered the practices of the fast food industry with respect to meat products. As we are increasingly able to identify the source of a foodborne illness, the power of litigation to shape industry behavior about food safety will increase.

Legal Incentives Probably Work Better in Outbreak Situations, Less Well for Sporadic Cases

Incentives for firms to avoid large outbreaks of foodborne illness are probably stronger than the incentives to avoid isolated, sporadic cases of illness because outbreaks have greater potential to damage firms. Public health authorities are also more likely to become involved in outbreaks, and technological advances have improved the chances that widely scattered cases will be traced back to a source and linked to each other. For example, CDC traced the 1998 listeriosis outbreak (80 illnesses, 21 deaths) to hot dogs and luncheon meats produced and sold by specific companies.

According to one attorney experienced in foodborne illness litigation, it is primarily the business disruption and negative publicity of the catastrophic foodborne illness or outbreaks that cost firms money, so it is these extraordinary, nonrecurrent illnesses or outbreaks that have the potential to substantively shape corporate behavior. In the rare instances where foodborne disease outbreaks are linked to particular firms, the impact on those firms can be large. For example, the restaurant chain involved in the 1993 E. coli O157 outbreak lost an estimated $160 million in the first 18 months after the outbreak occurred.

Class Action Lawsuits May Become More Common for Outbreaks Where Many Persons Have Similar, Mild Illnesses

Foodborne illness—and the reasons for litigation—may decrease if firms continue to improve quality control practices to ensure safer food. In contrast, improvements in pathogen detection and identification techniques (including DNA fingerprinting and more rapid microbial tests) may increase the chances that foodborne illnesses (particularly outbreaks) will be detected and linked to specific food products and firms.

Several law and consulting firms now specialize in foodborne illness lawsuits. Class action or “mass” lawsuits may be more frequently used in the case of outbreaks resulting in many similar, mild illnesses, particularly as identification and documentation of outbreaks improves, as legal expertise in this area grows, and as media coverage of successful class action suits involving consumer products accumulates.