Personal Injury Law

Supreme Court Denies Certiorari on Salmon Labeling Case

Posted on January 13, 2009
UPDATE to previous blog entries about the California salmon labeling case (Albertsons v. Kanter) - Just yesterday, the U.S. Supreme Court denied certiorari.  The Supreme Court's ruling followed briefing submitted by the Solicitor General (aka Bush Administration)...

What to Do When the Investigators Knock . . .

Posted on January 08, 2009
This week brought news of yet another nationwide Salmonella outbreak from a source not yet identified by government regulators. The last time we had a nationwide Salmonella outbreak for an extended period of time without identification of a definitive source the federal government initially singled out tomatoes imported from Mexico (a huge array of products)...

When Is Labeling Misleading and Actionable Under State Law? Is There Any Clearly Understood Standard?

Posted on January 06, 2009
A recent Ninth Circuit case again raises serious questions as to whether there are any clearly defined legal standards as to when a food label is misleading and when it’s not. Manufacturers who are in compliance with federal standards for labeling may still be liable under state law...

Happy New Year and Thank You

Posted on January 01, 2009
Happy New Year. Thank you for your support, readership and feedback for this site. Since we launched the blog in late February of 2008, the growth in readership has been extraordinary. I'm overwhelmed at the response. My hope is that the blog has provided some measure of assistance to those in the food industry...

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Five New Year's Resolutions

Posted on December 31, 2008
Unfortunately, 2009 does not promise to be any easier than 2008 in protecting your business against food liability claims. Many argue that threats will only increase in the new year. Here are five things you can do to reduce exposure in the coming year: 1...

The Latest On The Battle Over Federal Preemption of State Salmon Labeling Claims. . .

Posted on December 26, 2008
  The Supreme Court signaled last fall it may review a California Supreme Court decision finding that federal law does not preempt claims for violations of state consumer protection laws concerning “selling artificially colored farmed salmon without disclosing to ...

Practical Advice for Litigating the Food Case

Posted on December 17, 2008
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Practical Advice for Litigating the Food Case

Posted on December 17, 2008
Click here for the slides from a presentation I gave recently with Shawn Stevens entitled "Practical Advice for Litigating the Case: Retaining Experts, Assessing Damages and Planing Trial Strategy." Two threads of my part of the presentation were organization and relationships (I believe that these were also central to Obama's campaign hence the campaign log)...

Is It A Really Food-Borne Illness?

Posted on December 16, 2008
At a recent presentation, Dr. Alan Melnick, a public health officer in both Oregon and Washington, provided a useful list of alternative causes of symptoms to consider when someone claims a food-borne illness. Other causes of symptoms that might be confused for food-borne illness include (but may not be limited to): Irritable bowel syndrome (IBS) Inflammatory bowel disease Malignancies Antibiotic use Gastro-intestinal surgery or radiation Malabsorption syndromes Immune deficiency Another practical piece of advice offered by Dr...

Crisis Management So Simple Even A Pre-Schooler Could Do It. . .

Posted on December 12, 2008
Last week’s ACI conference included a great session on crisis management. David Hermann from the GMA gave a presentation on “Effective Crisis Leadership: 5 Basic Rules You Learned as a Kid.” His presentation reflected a proactive approach and showed ways to build an effective crisis-management plan...

2009 Priorities for USDA in Food Safety

Posted on December 11, 2008
I just returned from ACI’s Second National Forum on Food-Borne Illness, which included several interesting presentations and discussions. One was by Dan Engeljohn, Deputy Assistant Administrator of the Office of Policy and Program Development at the Food Safety and Inspection Service (“FSIS”)...

Dramatic Shift in Plaintiffs' Burden of Proof for Food-Borne Illness Claims?

Posted on December 04, 2008
A California Court of Appeal panel recently issued a lengthy decision in Sarti v. Salt Creek Ltd. (2008 WL 5006537)  reversing a trial court’s grant of judgment notwithstanding the verdict  (JNOV) in a food-borne illness case involving campylobacter...

The Billable Hour - Reflections on the CLE

Posted on November 26, 2008
I had the privilege of participating as a speaker at the Billable Hour CLE held recently at Seattle University School of Law. As an “outside” counsel, here were some of the most significant things I learned: 1. Clients may find the billable-hour system “frustrating...

More on Melamine . . .

Posted on November 21, 2008
I was interviewed recently by Food Innovation Weekly on “Melamine, Recalls and Crisis Management.” This question-and-answer article discusses how the waves of melamine issues circling the globe affect the way a company should think about crisis management...

Registration Still Open For The ACI Food-Borne Illness Litigation Conference in Scottsdale

Posted on November 20, 2008
December 4-5 is the American Conference Institute’s 2nd National Forum on Food-Borne Illness Litigation. The first forum turned out to be a very engaging and diverse forum (e.g. plaintiffs lawyers, industry lawyers, top state and federal officials) on emerging issues in food-borne illness...

Nitty-Gritty on Menu Labeling Regulations and What Can Be Done to Stem Consumer Litigation

Posted on November 13, 2008
As restaurant chains operating in King County, Washington are readying to comply with the new menu labeling law, serious questions arise. Does each menu item have to be sent to an expensive lab for testing? How accurate does the nutritional information need to be? How does a restaurant account for the inevitable variables of made-to-order meal preparation (an extra tablespoon of cooking oil can add 120 calories to a dish)?  Does a restaurant that complies with the King County law open itself to consumer labeling claims because its nutritional information cannot be 100 percent accurate? According to the Seattle Post Intelligencer (“PI”), the question concerning the tools that can be used by a restuarant  chain to determine nutritional information may have been resolved in King County...

Breakthrough in Detection of BSE (a.k.a. "Mad Cow Disease")

Posted on November 12, 2008
No food-borne illness induces consumer fear like Bovine Spongiform Encephalopathy (BSE a.k.a. "Mad Cow Disease"). The beef industry in particular has gone to great lengths to take preventative steps against the introduction of BSE into U.S. herds...

Preparation for Melamine Issues- Updating Crisis Management Plans and Insurance Coverage

Posted on November 07, 2008
While largely under the radar in the American press due to the compelling election cycle and historical meltdown in the financial markets, the news out of China concerning melamine has gone from bad to worse. Concern about Chinese dairies has morphed into a global crisis affecting what seems like an infinite number of products tainted with melamine...

Change You Can Expect: What President Obama May Do About Food-Borne Illness Surveillance

Posted on November 06, 2008
The Obama administration has promised sweeping changes in all corners of the federal government. We can expect the new President to push an ambitious legislative and administrative law agenda in 2009. What does this mean for food regulation? A partial answer may be gleaned by looking at the Improving Food-borne Illness Surveillance and Response Act of 2008, a bill Obama introduced last summer after he become the presumptive Democratic nominee...

Another Reminder Why Indemnification and Insurance Requirements Are Important

Posted on October 31, 2008
Last month, a state judge in Minnesota awarded summary judgment to a lettuce supplier of restaurants associated with an E. coli outbreak in 2006. The restaurant supplier brought suit against its suppliers. The suit appears to have been based at least in part on an indemnification agreement between Vistar (which delivered lettuce to restaurants) and Bix (which supplied lettuce to Vistar)...

More on Supply Chain Verification and Crisis Management

Posted on October 17, 2008
Food Safety Magazine’s latest issue focuses on “Industry in Crisis Mode.” The issue includes an article by Shaun Kennedy, director of the National Center for Food Protection and Defense (NCFPD). Mr. Kennedy provides a good overview of the elements of a supply chain verification program that any food seller should consider...

Court to Rule on Consumers' Expectations For Organic Cosmetics

Posted on October 16, 2008
Dr. Bronner’s Magic Soaps (“Dr. Bronner’s”) received a favorable ruling recently in its suit against competitors that it believes are misleading consumers by labeling cosmetic products as “Organic”. Part of Dr. Bronner’s claim appears to be that “Organic” standards established by the U...

Salmon Labeling Probably Headed to Supreme Court

Posted on October 13, 2008
The U.S. Supreme Court  signaled last week that it may review a California Supreme Court decision finding that federal law does not preempt claims for violations of state consumer protection laws concerning “selling artificially colored farmed salmon without disclosing to ...

The Billable Hour

Posted on October 07, 2008
A little off topic - I've been asked to speak at an upcoming CLE program at Seattle University Law School entitled "The Billable Hour: An Examination of Compensation."  For those responsible for legal budgets (whether an in-house lawyer managing a budget or an outside lawyer like myself who is working within a budget), this promises to be a provocative conversation...

Some In The Plaintiffs' Bar Favor Irradiation

Posted on October 06, 2008
As previously discussed on this blog, the FDA recently approved irradiation for iceberg lettuce and spinach. We pointed out  that "irradiation may provide an added level of protection from food-borne illnesses such as salmonella and E. coli...

Forest Through the Trees: Lessons from a Crisis Management Case Study

Posted on October 02, 2008
There was a nice article in the Canadian legal publication Law Times about the aftermath of the Maple Leaf Foods recall. The article praises Maple Leaf Foods for taking quick steps to salvage consumer confidence in the face of a Listeria outbreak across Canada...

California Menu Labeling Laws--Restaurants Beware of Asking What Your Customer Wants!

Posted on October 01, 2008
Yesterday, California became the first state in the Union to write into law menu labeling requirements. Like municipal ordinances recently enacted in New York City and Seattle, the California law requires certain “chain” restaurants to disclose nutritional information and calorie content information for certain items...

Lessons from Toxic Rice and Chinese Dairies - Threats From Bioterrorism and Supplier Fraud

Posted on September 26, 2008
Manufacturer fraud and bioterrorism should be on the radar screen for any food producer. Apart from the meltdown in the U.S. financial markets and presidential politics, the big news this week is toxic rice from Southeast Asia and melamine-tainted dairy products from China...

Anatomy of a Food-Borne Illness Claim - Part I

Posted on September 19, 2008
Recently, I’ve received several requests for resources explaining the anatomy of a food-borne illness claim. In other words, what events can be expected, and when? What can or should a company (in particular the legal department) do in response to a claim? Part I – Notice of an Outbreak (and Possible Claims)   First off, don’t panic...

New York Times on Nutraceuticals

Posted on September 17, 2008
The New York Times has a piece on nutraceuticals that caught my eye as an example of the news media’s skepticism about fortified food. The article begins: “O[ff] the coast of Peru swim billions of sardines and anchovies: oily, smelly little fish, rich in nutritious omega-3 fatty acids...

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