Food Poisoning and the Peanut Butter Claims

          Peanut butter is one of the most popular foods in my house and has been for as long as I can remember. That fact makes it personally all the more disheartening to see the huge number of victims and the extensive recall of peanut butter products underway, a situation that has involved both the FDA and the CDC. With the number of health victims having reached double digits in New Hampshire and many hundreds nationally, including two suspected deaths, this is a most appropriate time to remind readers of the validity of food poisoning claims.

          When you suffer the effects of food poisoning, whether it is E.coli, salmonella or hepatitis-A, you are virtually certain to be dealing with a situation where there was a manufacturing defect due to the care and handling at the manufacturer’s facility. When looked at in this fashion you can more easily understand how such claims can be brought under the same theory as other product liability cases such as defective cars. In 1963 California first established strict liability in tort for products; the 1978 case of Thibault v. Sears brought the approach here to New Hampshire. Under the strict liability approach, the plaintiff has to show a defective product was used as intended and that the defect caused injury. Negligence does not have a role in this legal theory of liability.

          There are many issues in how to best approach a food poisoning claim, including whether to bring alternate theories of liability against the defendant such as a negligence claim, in addition to the strict liability claim. In addition, there are decisions to be made about whether to bring suit or pursue a pre-lawsuit settlement, whether to bring in others with potential liability into the claim such as those in the distribution chain that brought the unsafe food to you. In this peanut butter situation, a claim for enhanced compensatory damages may also make sense, given the conditions the federal inspectors found at the plant.

          In short, while the internet and involvement of the federal bureaucracy may make it seem like a consumer friendly situation where representing yourself makes sense, it harkens back to the old saying: “Anyone who represents himself in a court of law has a fool for a client.” The first thing you should do if you have a potential food poisoning issue is contact a lawyer familiar with the law in this area. In closing, I do note that we are presently representing a client who used to like peanut butter as much as me.  

Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com.

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