Food Poisoning

Food poisoning and foodborne illness outbreaks are not all that uncommon as evidenced by the outbreaks investigated by the Centers for Disease Control that make headlines at least once or twice a year.  For example, in the fall of 2015, Chipotle was in the spotlight for multiple E. coli and norovirus incidents that were linked to many of its restaurants.  While no deaths were related to the outbreak, which can happen with people who have E. coli infections that develop complications, many people were hospitalized as a result of their illnesses.

 It  always seems that eggs, chicken, or produce like alfalfa sprouts are under investigation for infecting people with Salmonella.  As recently as the spring of 2016, the CDC was investigating a multistate outbreak of Salmonella infections that were linked to alfalfa sprouts.  Again, while no deaths have yet been reported, people were still being hospitalized with the infection.

 Salmonella infections can cause severe stomach pains, diarrhea, and nausea, and can possibly cause sensitive populations like the elderly and children to develop more severe symptoms. 

More recently, since May of 2016, the CDC, along with the United States Food and Drug Administration has been investigating several states that have had Listeria outbreaks that appear to stem from a specific brand of frozen vegetables.  Listeria can cause a serious, life-threatening illness, and in fact, two deaths have already been linked to this outbreak.  As these outbreaks reveal, foodborne illnesses and infections can be serious and devastating and should not be taken lightly as in some cases a foodborne illness can require hospitalization, long recoveries and therapy, and in extreme cases, the consequences can be fatal. 

If you believe that you are sick because of food poisoning or a foodborne illness, it is possible that you will have a legal claim for damages.  Oftentimes foodborne illnesses can result in expensive hospital bills, pain and suffering, ongoing treatment or therapy, and missed work or school, so in the event you become extremely sick from a foodborne pathogen, it is important to quickly determine the food that made you sick as it is possible that anyone responsible for your illness will have to compensate you for any resulting expenses or missed work.  However, whether you have a claim for damages will ultimately depend on the facts and circumstances of your case, and whether your illness can be linked to an actual outbreak of food poisoning. 

Food Poisoning Litigation in California

If you have been injured by food poisoning in California, there are several theories of liability that you may be able to pursue in order to obtain the compensation you need or deserve.  One such theory is that of strict liability.  Strict liability generally means that in certain situations a defendant, such as a restaurant or food distributor or supplier, as may be the case in a food poisoning claim, is held responsible or liable for your damages without having to prove that the defendant was actually negligent.

 In California, there are three elements that must be met in order to be successful in a strict liability claim in a food poisoning case. 

First, you must be able to show that the food at issue was contaminated with a pathogen such as Salmonella, Listeria, or E. coli at the time it was consumed.  This can be done by actually testing a sample of the food in a laboratory, or by determining whether other people may have contracted an illness or infection from the same food around the same time. 

Second, you must be able to prove that the contaminated food was the actual cause of your illness or infection.

 Finally, you must show that you were actually damaged as a result of the food poisoning, whether those damages were physical, mental, and/or financial.  In other words, in a strict liability food poisoning case, you would just have to prove that the food you consumed was contaminated, and the contamination caused your illness and other damages.

While strict liability may be the easiest way to win a food poisoning case, other theories of liability that can be pursued are (1) asserting that the defendant acted negligently, or failed to exercise reasonable care when making, supplying or manufacturing the food that made you sick; and (2) asserting that the food involved violated some implied or express warranty or guarantee.  Other theories of liability may also be available, but the theory or theories that have the best chances for success will depend on the facts and circumstances of your case. 

Proving Your Food Poisoning Or Foodborne Illness Claim

As mentioned above, to win a food poisoning claim, you generally have to prove that the food you consumed was contaminated and that the contaminated food made you sick.  Accordingly, if you believe a food product made you sick, it is important to remember what and where you ate.  However, it is not always easy to exactly pinpoint what food product caused your illness, though some cases are easier to prove if a government health agency has stepped in to investigate multiple reports of foodborne illness.

In addition to proving that the food you ate was contaminated, you also need to establish that your illness was caused by the contaminated food.  Usually, this is accomplished by going to your doctor or other health care provider as soon as you show signs and symptoms of food poisoning or other foodborne illness.  A health care professional will be able to observe your symptoms and conduct tests that can determine whether your illness is linked to a certain foodborne pathogen. 

But Who is Responsible for My Food Poisoning or Foodborne Illness?

Like general products liability cases, in a food poisoning case, you will want to include in your claim any and all parties that might be responsible for the food product that ultimately made you ill.  This usually means that you will have to find the source of the food contamination by investigating who might be involved in the chain of distribution of the contaminated food product.  Those involved in a food poisoning case can thus include food processors, food retailers like grocery stores or restaurants, food suppliers, distributors, wholesalers, and anyone else who may have come in contact with the food and possibly caused the contamination. 

What About Class Action Lawsuits Related To Food Poisoning?

Usually, if there is a food poisoning outbreak of some sort that is being investigated by a government health agency, it means that there are a number of people that have suffered the same foodborne illness, and it originated from the same source.  In these instances, it is possible that some of those injured have banded together to file a lawsuit related to that particular food poisoning outbreak.  Accordingly, you may have the option of joining an already existing class action lawsuit.  But even if you do have the option to join a pending class action lawsuit, you do not have to join and can instead bring your own lawsuit for damages. 

But Are Food Poisoning Cases Actually Winnable?  What Does A Successful Food Poisoning Case Look Like?

In 2013, a California appeals court made a precedent-setting decision when it upheld a jury verdict that awarded millions of dollars to a woman who became severely ill after eating tainted raw tuna at a restaurant.  After becoming ill with a campylobacter infection from the food, the woman went into a coma for ten days, suffered permanent nerve damage, and had to drop out of college at the time in order to seek medical treatment and therapy for a year and a half. 

While the campylobacter bacteria with which the woman was infected is typically found on raw chicken and not raw tuna, it is possible for other food products to become contaminated by the bacteria if they come in contact with raw chicken or any of the utensils used to prepare the chicken.  In a lawsuit filed against the restaurant, the evidence revealed that the restaurant had a pattern of improper food handling and other sanitation issues that were investigated and reported by the Orange County Health Care Agency.  In addition, the woman’s treating doctor testified that the woman likely contracted the bacteria from the restaurant’s unsanitary practices.  Ultimately, the jury inferred from the evidence that the restaurant’s practices resulted in the cross-contamination of foodborne pathogens that made the woman ill, and awarded her with substantial monetary damages. 

After the verdict, the restaurant appealed arguing that the woman should not have won her case because she did not and could not rule out other causes that may have made her ill.  The restaurant believed she should have to prove that no one else or nothing else make her sick.  However, the appeals court did not agree with the restaurant and instead held that the expert testimony offered by the woman sufficiently proved that the bacteria was linked to the unsanitary practices in the restaurant’s kitchen.  The court agreed with the jury that they could properly infer that there was a link between the bacteria and the restaurant’s kitchen without requiring the woman to prove that there was no other cause of her illness. 

The outcome of this case is a victory for those in California who have been damaged by food poisoning or foodborne illnesses.  If the court had agreed with the restaurant, winning a food poisoning litigation case would be much more difficult as claimants would have to prove that there was no other cause of their foodborne illness. 

Steps To Take If You Believe That You Have Been Poisoned By Food Or Contracted A Foodborne Illness

If you believe that you have a foodborne illness or infection, it is important that you take action right away.  Prompt action can mean the difference between a successful and unsuccessful claim against those who are responsible for your illness.  In the event that you do become ill after consuming a tainted food product, be sure to:

  • Seek treatment from a doctor or other healthcare provider as soon as possible so they can reach a diagnosis;
  • Write down where and what you might have eaten the week before you became ill so you can try to pinpoint where you may have contracted the illness.  Oftentimes with food poisoning or foodborne illnesses, the onset of the symptoms may be delayed. Thus, it is important to remember as best you can what you might have eaten that full week before you became ill; and,
  • If you have been seriously injured, or if the illness resulted in death, you will likely want to contact an attorney who deals exclusively with personal injury cases.  In California, you have only two years from the date of injury, or from the date you reasonably discovered the injury, in which to file a lawsuit.  

Foodborne illnesses can be serious with lasting and devastating consequences, and in some cases, can even result in death.  Accordingly, if you have become ill due to a foodborne pathogen, take care of yourself first and see a healthcare provider.  You can always worry about filing a lawsuit later.  However, an attorney who deals exclusively with personal injury cases and who has experience litigating food poisoning cases will likely increase your chances for a successful outcome in your case.  

Sacramento Food Poisoning Litigation Lawyer

I’m Ed Smith, a Sacramento Food Poisoning Litigation Lawyer. If you or a family member has been seriously injured as the result of food poisoning or a foodborne illness, please call me today at (916) 921-6400 or (800) 404-5400 for free, friendly advice.

Read my reviews on: Yelp, Avvo, and Google Plus.

Meet my friendly staff.

I’m a California Million Dollar Advocate Forum Member. Trial lawyers in this forum have won numerous case verdicts and settlements over a million dollars.

View my long history of successful Past Verdicts and Settlements.

I’ve been practicing in personal injury law exclusively since 1982.

Client Reviews
  • Me and my wife; had a car accident. We were amazed how easy, professional, friendly attorney Ed Smith is along with his staff. Everybody is amazing. Thank you so much, we are very impressed!
    Sincerely, Alex & Dinah M. ★★★★★
  • Ed Smith and his office team took on a difficult personal injury case on my behalf and for the passenger in my car. Ed is a top- notch attorney. His staff couldn't have been more helpful and kind. No need to look elsewhere. I give Ed Smith my highest recommendation. Beverly ★★★★★
  • Ed and Robert have been taking great care of my husband and I for the past 5+ years. They are always there when you have a problem and a quick resolution! Even when the issues have nothing to do with them. They are willing to help ease the pain off your shoulders. They are as good as it gets! Thank you again for everything. Annie T. ★★★★★
  • Very professional. Great team, staff and service all around. Mr Smith was very honest, straight forward with his advice. He gives the word "attorney" an honest reputation. I will seek his council anytime, and would recommend him at the drop of a dime. Jeremy M. ★★★★★
  • I would highly recommend Ed Smith to any friends or family in need of a personal injury attorney. Ed, and his staff, are very caring on top of being very experienced in this field. The staff always keeps you informed of the status of your case and they are always easy to reach by phone. Shannon D. ★★★★★
  • Edward Smith law offices provide competent, thorough, and personable help for victims of personal injury. When you first meet the staff you know you contacted the right office. This law office treats clients like people. I recommend this office to anyone seeking representation regarding personal injury. David M. ★★★★★