Articles: RecallLitigation

Erroneous Public Warnings: Being Prepared For FDA Mistakes

By Brad Sullivan

Recently there were reports in the news of Costco rotisserie chicken salad being contaminated with E. coli and the resulting recall by a local company of its celery. Subsequent tests have not been able to identify the celery as the cause, and one is reminded of the 2008 outbreak allegedly involving Roma Tomatoes from the Southeast. Similarly, in the various...

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Categories: Recall, Litigation

Can a Warranty Against Adulteration be Enforced?

By Paul Rovella

I am not making some earth-shattering revelation when I say that the 2006 spinach outbreak and subsequent investigations and litigation (“2006 Events”) have forever changed the way the agricultural industry does business. The changes in business practices that have resulted from the 2006 Events are apparent on the face of every new contract for the growing, harvesting, packaging, marketing, and/or...

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Categories: Litigation

Waiver of Subrogation

By Soren Diaz

With the growing number of food contamination outbreaks and the ensuing multi-million dollar personal injury lawsuits being filed by sick consumers, as well as recent scientific research and technological advances that have made it easier to rapidly and accurately trace back the source of pathogen contamination to a particular crop and field, it is crucial for farmers and growers to...

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Categories: Litigation

E-Discovery in Your Recall Binder: How to Respond to a Litigation Hold

By Brad Sullivan

I was reviewing a client’s recall plan recently, trying to anticipate “worse cases” scenarios and a couple came to mind. One was using a company’s in-house attorney or “usual” outside counsel in the initial stages of a recall or outbreak investigation thinking “these conversations/e-mails are confidential” and finding later if the matter was to go into litigation that they...

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Categories: Litigation

The Self-Critical Analysis Privilege: Check in With an Attorney Prior to Turning Over Post-Incident Documentation

By Camille N. Johnson and Judith D. Wolferts

After a catastrophic incident, food producers often conduct independent post-incident investigations. While these independent investigations help prevent future incidents and lay the stage for defenses at trial, they could potentially uncover sensitive information about the company’s fault. It is no surprise that opposing counsel will often attempt to obtain the post- incident investigation materials through discovery requests. How should your...

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Categories: Litigation

Handling Outbreak Investigations With Outside Counsel

By Joshua Swiger

An outbreak can be a terrifying event. A public announcement linking an outbreak to a particular company often ignites a fury of news media, investigation efforts by public agencies (which generally started long before the announcement), and the need to interface appropriately with the public at large. It also is a defining moment: although a company may have...

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Categories: Litigation