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EXPERT TESTIMONY IN YOUR FOOD LIABILITY CASE. Ken Odza, Esq. Stoel Rives, LLP ACI Conference. TRIVIA. A jury will be surprised to see DNA type evidence in a food case?. True False. "CSI" effect. What is PFGE?. A. Pro Football Game Emcee
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EXPERT TESTIMONY IN YOUR FOOD LIABILITY CASE Ken Odza, Esq. Stoel Rives, LLP ACI Conference
A jury will be surprised to see DNA type evidence in a food case? • True • False "CSI" effect
What is PFGE? • A. Pro Football Game Emcee • B. Pulse Field Gel Electrophoresis • C. Something Bill Marler Made up?
PFGE match is a "fingerprint" and cannot be disputed? • True • False
Virtually every state recognizes some form of strict liability foradulterated food? • True • False
HUS and TTP are the same thing? • True • False HUS - Hemolytic-uremic syndrome TTP - Thrombotic thrombocytopenic purpura
Epidemiology addresses whether a food-borne pathogen caused the plaintiff’s illness? • Epidemiology Develops an “Association” – relationship between two events that occur more frequently than chance • True • False
People believe they got sick from the last thing they ate? • True • False
Usually, the last thing eaten is the source • True • False
People can recall food histories weeks or months after an outbreak? • True • False
Public health officials usually have unlimited resources for investigation of food borne illness? • True • False
Jury will tend to believe your nobel prized expert over the public health official? • True • False
Experts should be retained at moment of alleged outbreak • Assist with Health Department Investigation • Help Identify Early Where Liability Can Be Challenged • True • False
Lawyers receive an array of scientific and medical training in law school • True • False
National outbreak • Multiple confirmed Cases • Confirmed STEC in stool sample • Confirmed STEC in the spinach • PFGE match between spinach and stool • Ate spinach Within Incubation Period
Single illness • No positive stool sample • No positive food sample • No PFGE Match • Not clear whether illness is HUS or TTP
Issues • Strict Liability? • Illness Caused By Food? • Food Sold By Defendants? • What else?
Safe Food Handling • Experienced In Food Production • Background in Microbiology or Public Health • Knowledgeable of Safe Food Handling Practices • HACCP, etc.
Safe Food Handling • Probably Not • Plaintiff will have to rule your source in and others out • Want to prove food handling practices
Epidemiology/Infectious Disease • Defined As Study of Factors Affecting Health and Illness of Populations • Usually an MD or PhD with MPH - Backgrounds Vary • Attempts to Identify Risk Factors For Disease
Epidemiology/Infectious Disease • Challenge existence of outbreak or infection – Probably Not • Limit scope of Plaintiff’s damages • All symptoms consistent of E.Coli? • How long was illness result of E.Coli versus something else? • Critical • Assist in ruling other sources in • Assist in ruling your client’s source out
I AM A BAD BUG Genetic Microbiology • Study of Bugs’ Genome • PhD in Genetic Microbiology • Research Background With Food
Genetic Microbiology • Challenge PFGE match? • Is There An Alleged PFGE link? • Are There Positive Stool and Food samples?
Hematology • Study of Blood Diseases • Want Somebody Experienced in Diagnosis of HUS and TTP • FUTURE PRACTICE TIP: Possible Test To Determine The Difference May Be In The Works
Hematology • HUS or TTP?
Issues • Source Of The Pathogen? • Negligence? • Who is at fault? • Was your client capable of eliminating pathogen? • What Else?
Expert Selection I AM EXPERT! PICK ME! WE ARE BETTER! PICK US! I AM CHEAPER! PICK ME!
Critical Factors • Recognized Expertise • Teacher • Likable • Good Motives • What Else?
Finding Experts • Talking to other experts • Literature searches • Cold-calls
Challenging Admissibility Chance To Win Without Going to Trial?
Daubert Standard • Three major requirements: • (1) the witness must be an expert; • (2) the procedures and methods used in forming the witness' opinion must be reliable; and • (3) the testimony must “fit” the factual dispute at issue so as to assist the trier of fact. • Daubert, 509 U.S. at 591
Expert Qualification • Standard – Discretion of court. • Factors: • Education • Practical experience • Study • Research • General background
Selected Daubert Food Cases • Qualifications – • Etienne v. United Corp., 2001 WL 1568598 (Terr.VI. 2001) – “Sous”
Selected Daubert Food Cases • Reliability • National Bank, C., El Dorado v. Assoc. Milk P. 191 F.3d 858 (8th Cir. 1999) – Aflatoxin M-1 (carcinogen) in Milk
Selected Daubert Food Cases • Unqualified Expert Employing Unreliable Methodology • Passes Daubert!! • Meet Winnicki v. Bennigans, 206 WL 319298 (D.N.J. 2006) • Healthy 21 yo Eats Caesar Salad And Dies