The Food Detectives

“You’re not going to find a fingerprint somewhere or the equivalent of an eyewitness like you might in some other kind of case,” says Gary Hansen of Oppenheimer Wolff & Donnelly, who represented American Foods Group during an E. coli outbreak.

Food contamination is an expanding legal practice area, full of quirks and complications—and no end of litigation. Stricken consumers sue stores and sometimes wholesalers and manufacturers. Stores sue suppliers, suppliers sue each other up and down the chain, and everyone’s insurer has its own piece to say. Once an outbreak has died down, once the bad food has been recalled and removed from the shelves, and health officials have done their best to avert a crisis, it’s time for the lawyers to take over.

“It involves a great deal of investigation and leg work,” says Brent Reichert, a partner at Robins, Kaplan, Miller & Ciresi, who represented Schwan’s during a salmonella outbreak in 1994.

“This whole area of the law is very exciting,” Reichert says. “You have to have knowledge of the foodborne pathogens, you have to have an understanding of the food industry that you’re involved in, and you have to have a scientific understanding of the subject matter.”

Law firms do their own investigations, but they also rely on reports and data from various local and federal health agencies, which are often the first on the scene. When a hospital sees a cluster of food-related cases, doctors alert the local health department, which then sends investigators to interview the sick and try to find a common denominator. What products did they eat? What stores did they shop at? The investigators use charts and maps to try to sort out what’s causing the illness, according to the Centers for Disease Control and Prevention Web site.

But even if they track it down to a specific product—say, ground beef at store X—they still need to find the original source—where that food came from and how it got contaminated. And it’s not easy. Food from different suppliers is transported together and perhaps even gets packaged in the same bag. Beef from different companies gets reground at the store in the same machine.

“You have to look at all the various records involved in terms of grinding and processing, as well as confirmation of the dates of purchase of the consumer,” Reichert says. “It can be a complicated process.”

In the Schwan’s case, the company issued a massive recall in late 1994 after more than 200,000 cases of salmonella were traced back to its ice cream. But it wasn’t until two years later that government investigators pinpointed the “most likely” source of the contamination—three outside companies had transported Schwan’s ice cream premix in trucks that previously contained unpasteurized liquid eggs. The companies eventually settled with Schwan’s in May 1997.

Hansen represented a company, American Foods, confronted with a different legal challenge: to show that it had not been the source of E. coli found in its ground beef in one chain of stores. “On those same days, American Foods supplied beef to all sorts of companies,” Hansen says. “If we had been the source, we thought one would expect to see problems with our other customers, and we didn’t.” The case was settled favorably, he says.

E. coli is one of the most common food contaminants, and outbreaks have grabbed plenty of headlines through the years. But Reichert says he’s not sure the number of outbreaks is actually going up, or if we just have better systems in place to detect them.

“Local, state and federal agencies are doing a much better job of cooperating and sharing information,” he says. “In addition, you have a better understanding from the medical profession as to what to look out for and what tests to run in order to detect a potential food source for the illness.”

He says his job hasn’t made him more nervous about the food he buys; most food-related illnesses can be prevented with proper washing and cooking. “I just try to abide by the recommendations,” Reichert says.

And if that doesn’t pan out, do some detective work.