Class Action Foodborne-Illness Claims

Article excerpt

Editor's note: The Journal recognizes the importance of providing readers with practical and relevant legal information through Legal Briefs columns. In every other issue of the Journal, this information is presented by one or more of several insightful and dedicated columnists: Bill Marler, Denis Stearns, Drew Falkenstein, Patti Waller, and David W. Babcock, all of the law firm Marler Clark.

The attorneys at Seattle-based Marler Clark, LLP, PS ( have developed a nationally known practice in the field of food safety. Marler Clark represents people who have been seriously injured, or the families of those who have died, after becoming ill with foodborne illness during outbreaks traced to restaurants, grocery chains, and other food suppliers. The attorneys have litigated thousands of food contamination cases throughout the United States, many of them high-profile, including the Jack in the Box and Odwalla E. coli outbreaks; the Malt-O-Meal, Sun Orchard, and Chili's Salmonella outbreaks; the Senor Felix Shigella outbreak; and the Subway and Chi-Chi's hepatitis A outbreaks.

Andrew Weisbecker, author of this month's Legal Briefs, is a partner in Marler Clark. Throughout his career, Mr. Weisbecker has been especially concerned with the representation of minor children in serious personal-injury and wrongful-death claims. Since 1998, his practice has focused on food product liability cases and foodborne-illness outbreaks.

A class action lawsuit is a civil lawsuit brought by one person or a few people as representatives of a larger group--the proposed "class"--whose members have suffered similar harm or have similar claims. Bringing a class action lawsuit serves three main purposes: 1) administrative efficiency, 2) conservation of judicial resources, and 3) quick achievement of a group remedy.

Class action lawsuits offer a number of advantages:

1. They provide for the cost-effective adjudication of small claims when the costs of litigation would far outweigh any potential recovery if the claims were brought individually. (1)

2. In cases with common questions of law and fact, the aggregation of claims into a class action may avert the need to repeat "days of the same witnesses, exhibits and issues from trial to trial." (2)

3. A class treatment of claims provides the means to effectively impose the costs of wrongdoing on a defendant, thereby deterring future wrongful activities.

4. A class action provides for uniform treatment of the defendant in a single venue, as opposed to the varying outcomes and standards that may be applied to a single defendant facing individual lawsuits in several different courts and jurisdictions.

5. In cases in which the defendant has limited funds to pay multiple claims, a class action centralizes all claims into one venue, where a court can equitably divide the assets among all the plaintiffs if they win the case.

In order to start a class action, one or more plaintiffs must first file a lawsuit claiming some type of common harm. The original plaintiff(s) must define the membership of the proposed class and must then ask the court to certify the case as a class action. According to both federal and state law, the original plaintiffs seeking class certification must generally provide evidence to convince the court that the proposed class meets the following criteria:

* numerosity -- the class is so large as to make individual suits impractical,

* commonality -- proposed class members have legal or factual claims in common,

* typicality -- claims or defenses are typical of the plaintiffs or defendants, and

* adequacy of representation -- the representative parties will adequately protect the interests of the class.

In most cases, the party seeking certification must also show:

* predominance -- the issues between the class and the defendants that will predominate in the proceedings are ones that class members have in common, as opposed to individual fact-specific conflicts between class members and the defendants; and

* superiority -- the class action is superior to individual litigation as a vehicle for resolution of the disputes at hand. …