Under our system of law, a person injured by food poisoning has to prove three things in order to make a successful claim:

• Fault - that the food seller or processor did something wrong with regard to food  processing, preparation, storage or handling.
• Causation - the fault of the seller or processor caused the food to become contaminated and that the contaminated food actually caused the illness.
• Damages – the harms and losses suffered by the victim as a result of consuming the contaminated food

This involves a number of disciplines including medicine, microbiology, epidemiology, sanitation, food safety and agriculture among others. See my article on the subject entitled How Lawyers Evaluate and Prove Foodborne Illness Cases.

But ultimately, all of the facts deduced from these disciplines have to be judged according to the law in the state in which the injury occurred. Simply put, what is that law and what does it require (and, equally important, not require)?

A recent California case answers these questions.

In Sarti v. Salt Creek Ltd. a young woman became very ill as a result of an infection involving a type of bacteria, campylobacter, that’s often found on raw chicken. She claimed it came from food she ate at the Salt Creek Grille.

She did not eat chicken at the restaurant. Rather, she ate an appetizer consisting of raw ahi tuna, avocado, cucumber and soy sauce. None of those ingredients are thought to typically harbor campylobacter. Those ingredients can, however, carry the bacteria if they come in contact with (cross contamination) raw chicken or the utensils used to prepare it.

After the woman became ill and a report was made to the health department, the restaurant was inspected and a number of improper sanitation issues were identified that could lead to campylobacter cross- contamination. However, as is often the case in such investigations, there was no “smoking gun” conclusively establishing that the improper food practices actually caused the food she ate to be contaminated.

The doctor who treated the young woman testified that it was more likely than not that the restaurant’s improper practices caused her campylobacter infection. The jury agreed and awarded her substantial money damages. An appeal followed in which the issue was whether there was enough evidence to support the verdict.

On appeal, the restaurant contended that unless the young woman could rule out every other possible cause of her illness, she could not win. In other words, she would have the burden of proving that absolutely no other food, surface or person caused her illness. The appeals court called this position “untenable” and concluded:

At this point, we should confront the semantic danger in the word “possibility.” The word must necessarily connote something more than bare conceivability or plausibility, otherwise it would swallow up the universe. For example, in a food poisoning case, how could the plaintiff disprove that she didn’t pick up some nasty bacteria (here, campylobacter) because she touched a doorknob that had been previously touched by someone who had been handling raw chicken or who had changed a diaper, and hadn’t washed his or her hands? Well, yes, one might reason, it is conceivable that that might have happened. It is ludicrous, though to suggest that such bare conceivability must, as a matter of law, defeat a food poisoning claim.

Instead, the court determined that the woman had met her burden of proof by offering expert testimony that linked the campylobacter and the particular unsanitary conditions found at the restaurant. In other words, it was alright for the jury to infer that linkage without requiring the woman to disprove every other potential source, no matter how remote.

This decision makes good common sense. If the restaurant’s position was accepted, it would be virtually impossible to win a foodborne illness case. Victims would have to exclude every other cause or source, a physical and intellectual impossibility. Fortunately, the California court didn’t see it that way.

Fred Pritzker has over three decades of experience representing survivors of foodborne illness and other unlawful conduct. He has collected millions of dollars on behalf of food safety victims and is recognized by his peers as one of the Top Super Lawyers and Best Lawyers in America. He is also a civil trial specialist certified by the National Board of Trial Advocacy and is a member of the prestigious American Board of Trial Advocates. Please contact Mr. Pritzker for a free case consultation by email (fhp@pritzkerlaw.com) or telephone (toll-free 1-888-377-8900).