As a food safety lawyer, I have spent my fair share of time litigating foodborne illness claims.  And, for as long as I can remember, whether debating with a mediator, a judge or a jury, there has been a lasting debate about whether the ultimate responsibility for protecting against pathogens in raw animal products rests with industry or the consumer.

What I have learned over the years is that, in most cases, from a litigation perspective, it doesn’t matter what we personally believe.  What really matters is what a judge or jury will decide.  Let’s assume, for instance, that a consumer who was exposed to raw ground beef became sick from E. coli O157:H7, and succumbed to his or her illness.  Is the existence of safe handling labels on the product sufficient to protect the producer from liability?  Is saying “just cook it,” in fact, enough?

The short answer is that it depends.

Initially, the company will have to confront the challenge that, pursuant to existing standards, ground beef contaminated with E. coli O157:H7 (or non-O157:H7 STECs) is adulterated.  Plaintiffs’ lawyers will be able to argue that FSIS already determined that the ground beef is dangerous and illegal to sell.  Very few courts would ignore FSIS’ pronouncements on the safety of the products and liability would likely, at least initially, attach.

But, on the other hand, FSIS also recognizes that it is nearly impossible to guaranty that raw meat will be sterile and, as a result, requires that these products carry labels warning consumers that, although ‘inspected and passed,” the products may nevertheless carry bacteria that could cause illness if improperly handled or cooked.  Thus, a strong counter-argument exists that, although the products may be adulterated, the plaintiff should be responsible for failing to prevent his or her illness by following the safe handling warnings and instructions.

In some cases, such arguments can diminish the amount of corporate responsibility.  A jury may in fact conclude that, when considering 100% of the total fault, the company should bear only 60% and the consumer should shoulder 40%.  Unfortunately, however, most cases are not that straightforward.

Plaintiffs will nearly always argue that only a dozen or more cells can cause illness.  If a highly-trained lab technician cannot be expected to always prevent cross-contamination a well-equipped laboratory, then neither should a mother rushing after work to prepare dinner for her hungry children.  Additionally, in most cases, the victims who become sick did not prepare the meal.  It was their mother, father, or a family friend.

It is an easy case when an adult makes the personal choice to knowingly prepare his hamburger rare or medium rare.  It is a far more difficult when a mother who has taken the needed precautions unknowingly serves a cross-contaminated product to her son or daughter.  With that said, in the end, a jury will weigh the evidence and then decide.

In the end, I believe that we all shoulder responsibility.  Industry is responsible for the health of its customers, and must do everything possible to reduce food safety risk.  At the same time, consumers are also responsible for their own safety, and should always take added precautions to limit their risk.  And, regardless of what you personally believe, if a food product makes someone sick, the ultimate decision regarding the allocation of ultimately responsibility will likely always be made by a judge or a jury.