Key Documents:

• • CDC Outbreak Investigation Notice – details epidemiological evidence implicating Boar’s Head meats.
  • Boar’s Head Recall Notice – identifies specific products, production dates and plant subject to recall.
  • Plaintiffs’ Complaint – outlines all legal claims and allegations against Boar’s Head and Schnucks.
  • Sue Fleming’s Medical Records – document her confirmed listeriosis diagnosis and treatment.
  • MDH Listeria Detection Report – shows positive test matching outbreak strain in Boar’s Head liverwurst.

FAQs:

• • What exactly is listeriosis? A serious, life-threatening infection caused via consumption of food contaminated with Listeria monocytogenes bacteria. High-risk groups include pregnant women, elderly and the immunocompromised.
  • How did CDC link the outbreak to Boar’s Head? Epidemiological evidence showed case patients disproportionately ate Boar’s Head deli meats before falling ill, and the outbreak strain was isolated from the company’s liverwurst.
  • Why are deli meats risky for Listeria? Listeria thrives in cold, wet conditions like deli counters and can easily cross-contaminate sliced meats. No final “kill step” before consumption allows bacteria to persist and multiply.
  • What listeriosis symptoms are common? Fever, chills, severe headache, diarrhea, nausea, abdominal pain. Can progress to meningitis, sepsis, and death if untreated. Median hospitalization is 2 weeks.
  • Are there any defenses to strict liability? Very few – the consumer expectations test asks if an ordinary consumer would find the food unreasonably dangerous. Even if most of a batch was safe, strict liability applies to the defective units that cause injury.

Elements Breakdown:

• • Strict Liability: (1) Defendant sold a product; (2) Product contained a manufacturing defect; (3) Defect existed when product left defendant’s control; (4) Defect made product unreasonably dangerous; (5) Defect caused plaintiff’s injury.
  • Negligence: (1) Defendant (person/company being sued) owed plaintiff a duty of care; (2) Defendant breached the duty; (3) Breach proximately caused plaintiff’s injury; (4) Plaintiff suffered actual damages.
  • Negligence Per Se: (1) Defendant violated a statute, regulation or ordinance; (2) Violation proximately caused injury; (3) Statute was intended to protect against type of harm; (4) Plaintiff was a member of the class of persons the statute aimed to protect.
  • Breach of Warranty: (1) Defendant was a “merchant” of the product; (2) Defendant made an implied warranty the food was merchantable; (3) Product was not merchantable at time of sale; (4) Lack of merchantability proximately caused plaintiff’s injury; (5) Plaintiff suffered damages.
  • Loss of Consortium: (1) Plaintiff and injured party are/were married; (2) Injured spouse suffered a debilitating injury; (3) Injury deprived plaintiff of spouse’s consortium; (4) Plaintiff suffered damages as a result.

Damages Sought:

• • Past and future medical expenses to treat Sue’s listeriosis and lasting complications.
  • Past and future physical and emotional distress
  • Diminished life satisfaction and reduced overall quality of living
  • Loss of consortium – companionship, affection, household services, etc.
  • Shortened life expectancy due to ravages of severe infection.

FAQs:

• • What makes a food “unreasonably dangerous”? If it contains a manufacturing flaw that rendered it more hazardous than what an average consumer would anticipate. Listeria contamination is a clear defect.
  • How is negligence proven? By showing the defendant failed to take reasonable precautions to control a foreseeable risk of harm, like maintaining sanitary facilities to prevent Listeria growth.
  • What laws did defendants allegedly violate? Federal Food Drug & Cosmetic Act (banning adulterated food) and Missouri Food Code (requiring sanitary food production and handling).
  • How are food warranties implied? By law, when a retailer or manufacturer sells food, they imply a warranty that it’s suitable for consumption, not contaminated or spoiled.
  • Why is loss of consortium claimed? Missouri recognizes spouses’ right to recover for losses in the marital relationship caused by the other’s injury, including affection, companionship, sexual relations, and household services.

Key Proof Points:

• • PFGE (Pulsed-field gel electrophoresis) and WGS (whole genome sequencing) tests confirm a common bacterial DNA fingerprint among the listeriosis cases.
  • Shopper card data, receipts and patient food histories show a statistically significant association between outbreak cases and Boar’s Head deli meat consumption.
  • Shipping manifests, inventory logs and retail stock records track the Production and sale of the recalled lots of meat implicated in the outbreak.
  • Plaintiffs’ purchase date, product labels and photos confirm they bought the specific contaminated products within the recall scope.
  • Medical and epidemiological experts explain how the laboratory, statistical and trace-back evidence conclusively links Sue Fleming’s illness to the defective meat.

The Evidence Trail:

• • Obtain the CDC outbreak report detailing the epidemiological investigation and laboratory findings tying the listeriosis cases to Boar’s Head.
  • Subpoena the defendants’ manufacturing, QA, inventory and distribution records for the recalled products to establish the defect timeline.
  • Gather Sue Fleming’s Listeria test results, medical records and physician testimony confirming her infection matched the outbreak strain.
  • Collect Pat Fleming’s receipts, shopper card records and photos proving their purchase of the specific contaminated liverwurst within the recall window.
  • Engage food safety, medical and damages experts to explain the complex causation evidence and opine on the extent of Sue’s injuries and losses.

FAQs:

• • What is a “DNA fingerprint” in foodborne illness cases? The unique genetic pattern of a pathogen strain as determined by PFGE or WGS tests. It allows matching patient specimens to each other and to contaminated food.
  • How does epidemiology prove food causation? By comparing foods eaten by sick people to those eaten by well people to identify a statistically significant common source, like Boar’s Head deli meat here.
  • Why is product tracing important? It establishes a contaminated product’s path from production to consumption, confirming it could have caused the plaintiff’s illness based on location and timing.
  • What if I consumed the tainted meat but didn’t get sick? Not everyone exposed will fall ill, but consumption of a recalled contaminated product is still strong evidence of exposure to a defective food.
  • How do I find a qualified expert to analyze my case? Consult an experienced food safety attorney who regularly works with top epidemiologists, microbiologists, food scientists and other specialists needed to build a winning case.

Key Liability Facts:

• • Documented Listeria contamination in the plant environment and finished ready-to-eat deli meat products.
  • No “kill step” between production and consumption, allowing any contamination to persist and spread.
  • FDA inspection records and expert analysis of the plant’s food safety measures and Listeria controls.
  • Federal law deems any food containing Listeria monocytogenes to be adulterated and prohibits its sale.
  • All food makers imply their products are safe and suitable for consumption or else they are legally unmerchantable.

Foreseeability of Harm:

• • Listeria has been a well-known risk in ready-to-eat deli meats for decades.
  • Major Listeria outbreaks in hot dogs and turkey deli meat in the 1990s and 2000s heightened industry awareness.
  • USDA and FDA implemented more stringent Listeria control regulations to combat the threat.
  • Food safety experts have long warned manufacturers about Listeria’s ubiquity and urged aggressive prevention programs.
  • Past outbreaks and government enforcement actions demonstrate the foreseeable dangers.

FAQs:

• • How does strict liability differ from negligence? In strict liability, the manufacturer is automatically liable if its defective product causes harm, regardless of fault, whereas negligence requires proof that unreasonable conduct led to the defect.
  • What food safety laws apply to Listeria? Listeria’s presence in food violates the federal Food Drug and Cosmetic Act, USDA and FDA regulations, and state adulterated food statutes.
  • How is an implied warranty breached? By law, all food sold for human consumption comes with an implied warranty that it is wholesome, not contaminated, spoiled or unfit to eat. Selling adulterated food breaches this.
  • Why does foreseeability matter? If a risk of harm is foreseeable based on industry knowledge, past incidents, or government warnings, the manufacturer has a heightened duty to take precautions against it.
  • Can Boar’s Head blame suppliers or retailers? Likely not, as manufacturers are responsible for ingredients and processing in their own plants, and Listeria grows at cold deli counter temps so later contamination is improbable.

Key Evidence:

• • Plaintiff’s purchase records confirming the sale of a recalled contaminated Boar’s Head product at Schnuck’s.
  • Health department inspection reports of the store’s deli counter practices and Listeria control procedures.
  • Documentation that Schnuck’s received and may have sold products that were later recalled for Listeria.
  • Evidence that Schnuck’s held itself out as a reputable merchant of wholesome deli products.
  • Expert evaluation of the likelihood of retail-level temperature abuse or cross-contamination from unclean slicers.

Establishing Schnucks’ Role:

• • Gather the shopper card data, receipts and bank records to prove exactly what the Flemings bought and when.
  • Subpoena store stocking, inventory and discard records to show the flow of recalled products at retail.
  • Obtain recent health inspection reports to assess deli counter conditions and sanitation compliance.
  • Collect evidence of Schnucks’ food safety representations and high-quality product marketing.
  • Depose store personnel on temperature controls, slicer cleaning, product handling and recall efforts.

FAQs:

• • Isn’t the manufacturer solely responsible for contamination? Not necessarily – strict liability applies to any seller in the distributive chain, and negligent retail practices could introduce or exacerbate contamination.
  • How can Schnucks breach a warranty without making one? An implied warranty of merchantability automatically arises when a product is sold by a merchant specializing in that product’s field.
  • What food safety rules govern retailers? FDA Food Code and state food laws require safe sourcing, temperature controls, sanitation, prevention of adulteration and honoring recalls.
  • Does Schnucks possess a defense against claims of strict liability? Likely not, unless it can prove an upstream party tampered with the product post-sale or Flemings misused it.
  • Can Schnucks seek indemnity from Boar’s Head? Possibly, if it can show the contamination arose solely from Boar’s Head’s actions and not its own retail-level conduct.

Damages Evidence:

• • Past medical bills totaling hospitalizations, surgeries, prescriptions, therapy, rehab, specialists, testing, etc.
  • Expert life-care plan projecting Sue’s future medical needs and costs given her permanent impairments.
  • Vocational expert analysis quantifying her lost earning capacity based on work restrictions.
  • Medico-legal expert opinion on the infection’s probable impact on Sue’s life expectancy.
  • Lay witness testimony on Sue’s pain, decreased quality of life, personality changes and family impact.

Damage Valuation:

• • Request complete billing records from all medical providers and summarize all care costs to date.
  • Work with experts to extrapolate future treatment needs and estimate lifetime costs of care.
  • Thoroughly interview family/friends on all the ways Sue’s life has been diminished by her injuries.
  • Research verdict and settlement data on comparable permanent injury cases to establish a value range.
  • Evaluate similar cases involving severe food poisoning and extensive hospitalization to gauge damages norms.

FAQs:

• • What’s a typical settlement for a severe listeriosis case? While highly variable, verdicts and settlements can easily surpass $1 million for infections causing lasting impairments or death.
  • How are pain and suffering damages determined? Based on severity and permanency of injuries, but often extrapolated as a multiple of the total economic losses.
  • What do I need to prove a shortened life expectancy? Medico-legal expert analysis of CDC mortality data, epidemiological studies on listeriosis aftereffects, and your specific complications.
  • When are punitive damages available? Only when defendants acted with intentional malice, deliberate dishonesty, or wanton and willful disregard for consumer safety.
  • How are loss of consortium damages calculated? By evaluating the quality, stability and services the couple enjoyed before and the infection’s negative impacts on their relationship.

Pressure Points:

• • Boar’s Head has deep pockets as a major national brand and likely carries substantial liability insurance.
  • As a publicly traded company, Boar’s Head is especially protective of its reputation and brand image.
  • Faced with clear evidence of contamination and a badly injured victim, a defense verdict is highly unlikely.
  • The large scope of the outbreak and recall puts Boar’s Head’s food safety competence in serious doubt.
  • Extensive discovery into Boar’s Head’s safety practices may reveal even more damaging information.

Litigation Strategies:

• • Conduct broad discovery into the Boar’s Head plant’s safety history, practices, problems and personnel.
  • Research the plant and company’s regulatory history for any red flags or past violations.
  • Investigate Schnucks’ practices to see if retail-level missteps may have contributed to the risk.
  • Depose senior Boar’s Head executives about food safety policies and the decisions behind this outbreak.
  • Retain top experts to analyze the case records and create compelling demonstratives to prove fault.

FAQs:

• • What signals of poor food safety are common? Inspection violations, positive pathogen tests, employee complaints, customer illness reports, inadequate policies and training, etc.
  • What does broad discovery entail in a case like this? Seeking years of internal records on food safety audits, environmental monitoring, test results, sanitation procedures, regulatory actions and more.
  • How might Schnucks share responsibility? If it failed to maintain sanitary conditions, proper temperatures, clean equipment, or to quickly remove recalled products.
  • Why depose executives instead of just lower-level workers? Executives make decisions about food safety resources, policies and priorities that influence the risk of an outbreak.
  • What types of experts are needed? Epidemiologists, microbiologists, food safety scientists, industrial hygienists, medical specialists and forensic pathologists, as a start.

Questions: Listeria Basics

• • 1. What is listeriosis?
    • A) A mild GI illness
    • B) A serious infection from Listeria bacteria
    • C) An allergy to certain foods
    • D) Animal-spread virus
  • 2. What foods are most commonly associated with Listeria?
    • A) Canned goods
    • B) Raw produce
    • C) Deli meats and soft cheeses
    • D) Cereal grains
  • 3. What are common signs and symptoms of listeriosis?
    • A) Fever, muscle aches, nausea and diarrhea
    • B) Skin rash and joint pain
    • C) Shortness of breath and chest pain
    • D) Blurred vision and slurred speech
  • 4. Who is at highest risk for invasive listeriosis?
    • A) Healthy adults
    • B) Expectant mothers and their newborn infants
    • C) College students
    • D) Teenagers
  • 5. What is the typical mortality rate for listeriosis?
    • A) Less than 1%
    • B) 5%
    • C) 10%
    • D) 20% or more

Answers: Listeria Basics

• • 1. B) Listeriosis is a serious, life-threatening infection induced by consumption of food tainted with Listeria monocytogenes bacteria.
  • 2. C) Ready-to-eat deli meats and soft cheeses are notorious sources of listeriosis outbreaks.
  • 3. A) Listeriosis typically manifests as fever, muscle aches, nausea and diarrhea. It can progress to meningitis and sepsis.
  • 4. B) Pregnant women are 10-20 times more likely to contract listeriosis. The infection can cause miscarriage, stillbirth or neonatal illness and death.
  • 5. D) An estimated 20-30% of listeriosis cases prove fatal, making it one of the deadliest foodborne illnesses.

Questions: Listeriosis Lawsuits

• • 1. What is strict liability and how does it apply to Listeria cases?
    • A) It only applies if the food seller was careless
    • B) The plaintiff has to prove the company meant to sell tainted food
    • C) A seller is liable if its contaminated food causes illness, even without negligence
    • D) It has no relevance to foodborne illness lawsuits
  • 2. How do you prove a food product caused a particular person’s listeriosis?
    • A) Genetic fingerprinting of the Listeria bacteria
    • B) Epidemiological evidence of exposure from the food
    • C) Trace-back evidence showing the victim consumed the product
    • D) All of the above
  • 3. What is an example of a food safety law that applies in Listeria lawsuits?
    • A) The Food, Drug and Cosmetic Act
    • B) The Americans with Disabilities Act
    • C) The Clean Water Act
    • D) The tax code
  • 4. How much can a person typically recover in a listeriosis lawsuit?
    • A) A few thousand dollars
    • B) Around $50,000
    • C) Millions are not uncommon in severe cases
    • D) There are no typical ranges
  • 5. Do you need an expert witness for a listeriosis case?
    • A) No, judges and juries already understand food safety
    • B) Only if tried in court
    • C) Yes, complex scientific and medical issues require expert testimony
    • D) Only for punitive damages

Answers: Listeriosis Lawsuits

• • 1. C) Under strict product liability, a food seller is responsible if its product’s defect causes illness, regardless of fault.
  • 2. D) Genetic matching, epidemiology and trace-back supply chain evidence together link a victim’s Listeria strain to a specific food.
  • 3. A) The federal FDCA bans the sale of adulterated food, with state laws having similar provisions. Violating these statutes is strong evidence of negligence.
  • 4. C) Settlements and verdicts in the millions are common for listeriosis causing serious injury, long-term impairment or death.
  • 5. C) Experts in epidemiology, food safety, Listeria microbiology, medicine and other fields are critical to proving complex issues of fault and damages.

Disclaimer

The legal information in this article discussing the Boar’s Head listeria outbreak litigation is for general educational purposes only. Laws, outbreak details and litigation postures may have changed since publication.

If you suspect food contamination has sickened you or a loved one, please consult an experienced attorney licensed in your state for a personalized case evaluation.