Attorney Les Zador: When Have You Been (Legally) Poisoned By That Dinner Out

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January 1, 2014 · Posted in Miscellany 

Today, I want to talk to you about the liability of food suppliers, particularly restaurants, for food poisoning.  Food poisoning?

It happens to most of us at least once or twice in our lifetimes.  We go to a restaurant or a fast food outlet.  We order the fish or whatever; and we may or may not notice that the taste is a little off as we unsuspectingly consume the adulterated food.   After finishing, we don’t give it a second thought until it hits us; and then we spend the better part of the next 24 hours hunched over the toilet praying to God for it to be over and, in many cases, heading over or getting someone to drive us to the emergency room.

Whoever has been through the process will know in his or her gut (pun intended) that it was the lousy food consumed at the local fast food eatery that did him or her in; but how do you prove this? In the typical case, someone will check in at the hospital, have a battery of tests run resulting in a formidable hospital bill, all the while missing several days of work.  It only stands to reason that the person who has suffered and been inconvenienced thus should want to be compensated.  But then the fun starts when the eatery claims that it wasn’t its product that made the victim ill, that nobody else got sick from eating the food on the day in question, and that the illness was obviously caused by something else.  I’ve been through this with restaurants, etc., a few times.

Or else the eatery just ignores the claimant in the hope that he or she will not hire counsel, but will just drop the matter rather than go through the trouble that necessarily follows when one pursues a claim against what’s usually a large corporation.  (My experience has been that it’s usually the chains–the restaurants and the fast food places–where you get the sickest.)  I’ve also had situations where the eatery ignores me in the hope that I won’t make good on my threat not to file a lawsuit.  In a way you can’t blame them.  Often times stonewalling works just great.

The bad news is that proving food poisoning in a court of law will not only require hiring an attorney, but also hiring expert testimony.  And that can run into several thousand dollars, which seems like serious overkill in a case where the food poisoning victim is more or less OK after a few days and where the hospital bill is not formidable (as where a person has good insurance or is on Medicare or Medi-Cal, and most of the bill is written off).

To make matters worse, there are some published appellate court cases on food poisoning that might as well have been written by the attorneys for the food service establishment.  In other words, the cases are SIMPLY AWFUL for the standpoint of the victim.  Take, for example, the 1977 case of Pat Minder v. Cielitl Lindfo Restaurant, published as 67 Cal.App.3d 1003.  In that case,  a husband and wife sued a restaurant for food poisoning they claim happened as a result of their having eaten a meal at that restaurant.  The food poisoning claim had been proved to the satisfaction of the jury, which awarded damages, after which the restaurant filed an appeal.

In the Minder case, the facts that were developed at trial showed that BOTH the husband and wife had developed a stomach disorder four to eight hours after eating at the defendant’s restaurant and that in each case the illness became progressively worse until BOTH were hospitalized nine days later.  In the hospital, it was determined that they both had an intestinal bacterial infection for which they were treated.  Specifically, laboratory tests were made (from stool samples) from which it was was determined that the bacteria were Shigella flexneri, Group B, a bacteria associated with food poisoning.  The doctor discussed with the claimants the possibility that they had received this bacteria from ingesting some contaminated food.  The doctor treated them for Shigella bacteria; and they recovered sufficiently to be discharged from the hospital after seven days.  At the trial, the doctor for both plaintiffs testified that it was his opinion that the illness occurred as a result of contaminated food, which his patients had eaten at the restaurant.

On cross-examination, however, the doctor also testified that the bacteria could have been transmitted from toilets or from any other object that might be touched by hand and which, in turn, touches the mouth.  Also, there was no evidence that the food, drinks, dishes, or silverware used in the restaurant appeared to have been contaminated in any way.  Further, the evidence also indicated that a friend who ate with the claimants was unaffected.

On the other hand, the friend’s wife, who also ate with them, had diarrhea a few days later (but that her doctor could not diagnose the cause).  Also, a food inspector had discovered a plethora of unsanitary conditions at the restaurant.  Among them: that the ice machine was open to flies and dust, dirt and grease, and food stored directly on the ice machine floor.   

Despite what the jury correctly perceived as fairly good evidence in favor food poisoning having happened at the restaurant, the court of appeal then overruled the trial court (and overruled the jury) in the Minder case and in so doing made clear that it didn’t trust the jury’s ability to figure out the cause of the food poisoning.  The court of appeal’s holding was that the Mr. and Mrs. Minder, as a matter of law, had failed to meet  their burden of showing that the probable cause of their illness was contaminated food eaten at the restaurant.

There are not many published cases on food poisoning, which is important because published cases are the only cases that can be cited as law that is binding on the trial courts.  Suffice to say that I’ve not been able to find any California Supreme Court dealing with the issue; and it wasn’t until the 2008 case of Sarti v. Salt Creek Ltd., 167 Cal.App.4th 1187, more than thirty years later, that another appellate court took up the analysis in theMinder case, opining, in essence, that the court inMinder had lost its bearings (if not its wits).

First of all, the burden of proof in a CIVIL CASE (where one is suing for money damages) is far less than it is in a CRIMINAL CASE (where someone’s life or freedom is being decided).  “In criminal trials, the prosecution must prove that the defendant is guilty beyond a reasonable doubt.  But in civil trials . . . , the party who is required to prove something need prove only that it is more likely to be true than not true” (CACI 200).  The standard in civil trials is also sometimes preferred to as the “preponderance of evidence” standard.  The preponderance-of-the-evidence standard “simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence.'” (In re Angelia P.(1981) 28 Cal.3d 908).

In the Sarti case, the Court of Appeal, writing 31 years later (different justices; different district), correctly observed that the Minder “court’s analysis [strayed[ from established rules of Causation in the State of California.”    For example, the fact that BOTH the husband and the wife got sick from the same food at or around the same time was important and could be relied upon by the jury when deciding whether the restaurant served adulterated food.  The Minder court, however, had said, in essence, that this didn’t matter, instead choosing to focus on the fact that there were other people who didn’t get sick from eating the food.  Also, theMinder decision made hay out of the fact that although plaintiffs’ stool was tested and found positive for food poisoning bacteria, the food itselfwas never tested?  Really?  The food wasn’t tested?  But how as a practical matter could it have been tested when all of it had been expelled from the plaintiffs’ stomachs in their vomit by the time they had gotten to the hospital?

The highly reasonable point the Court of Appeal made in the Sarti case was that the “more probable than not” burden of proof was easily met when the jury, confronted with the evidence that the claimants had both suffered food poisoning, could have and did come to the eminently reasonable conclusion that the food poisoning resulted from the meal that the husband and wife took together at the restaurant, which was the last place they went before spending a week in the hospital.

But the worst thing that the Minder court did, as noted in the Sarti case, was to require the claimants to prove a negative; specifically, that their food poisoning did not result from “other causes” such as the failure to wash their hands.  According to theMinder case, the rule should be that plaintiffs in food poisoning cases must rule out all other possible causes to prevail.  As a practical matter, this is enormously difficult, if not impossible, to do.

“The Minder court never expressly said it thought that defendants in food poisoning cases deserved a break from ordinary rules of . . . causation, but that thought permeated the court’s analysis . . . .

“We cannot agree, however, with the strong implication in the Minder analysis that food poisoning cases are somehow unique in tort law. . . .  Food poisoning cases follow the same rules as other [personal injury] cases: ‘The basic elements of proof in a food poisoning case are essentially those of any personal injury action.’

“‘The ideal factual situation in a food poisoning case’ would have all of these four elements: simultaneous illness of a group of people who eat the same food at the same time, all ‘patients’ manifesting classic food poisoning symptoms, prompt investigation of suspect food (like potato salad left out too long), and ‘microscopic examination’ of that food, which might show, for example, a staff infection . . . .

“The IDEAL situation, however, will not always present itself to a court . . . [T]he plaintiff [may, for example,] have ‘recovered to the point where recovery of the pathogenic bacteria is no longer possible’ and, also the food may not be ‘available for bacteriological study,’ besides which, often doctors may decide that the illness is not serious enough to ‘warrant[ ] the expense of such an investigation.'”

Recently, I resolved a claim for a client, who had spent a night in the emergency room and had lost a couple of days of work after eating a plate of vegetables at a fast food eatery.  The attorney for the fast food establishment–a major chain restaurant–maintained that we had a serious proof problem because, while the treating physician’s notes indicated food poisoning resulting from from the staphylococcus aureus bacteria (“staphylococcal food poisoning”), his opinion was not supported by any of the tests that had been run at the hospital.  (The testing performed at the emergency hospital included several common types of bacteria known to cause food poisoning; but staphylococcus aureus bacteria was not among them.)

I should interject here that ALL of the cases that I’ve looked at having to do with food poisoning include the results of certain testing that had proved positive for food poisoning.  Here, we relied upon a doctor’s opinion unsupported by any testing for the type of bacteria, which, the emergency room doctor, claimed was the culprit.

So . . . why did the food service provider pay us anything other than to get rid of a claim and move on?   For the simple reason, I think, that both the doctor and my client would have been credible had push came to shove.  The client had eaten nothing else that day and began to feel nauseous a half hour after eating what in all likelihood was adulterated food.  The incubation period for staphylococcal food poisoning is, not coincidentally, also a half an hour.  Further, the bacteria is typically found in vegetables, which is what she had eaten prior to the onset of her symptoms.

Would we have been able to have convinced a jury or an arbitrator that it is more probable than not that food poisoning rather than the stomach flu was responsible for her night of vomiting?  Maybe yes.  Maybe no.  A lot of it would have depended on how well the doctor whose opinion included “food poisoning” did under direct and cross-examination.  And some of it would have depended on whether the jury would have liked her.  (Juries have funny ways of giving money to claimants they like and withholding money from claimants who are complainers, dishonest seeming, or otherwise unlikeable.)

I think the jury would have liked her, but then there’s always the unknown and the unexpected.  Which is why cases settle.


Attorney Les Zador can be reached at (818) 995-9448.


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