October 2011

Co-authored by Brian Gross

Foodborne IllnessThe recently enacted Food Safety Modernization Act (FSMA), which was signed into law by President Obama on January 4, 2011, provides the U.S. Food and Drug Administration (FDA) with increased power.  The FSMA, which represents the culmination of more than a decade long effort to reform this country’s food safety oversight system, aims at limiting future occasions of foodborne illness by changing the FDA’s focus from reacting and responding when outbreaks occur to outright prevention.  While the FSMA certainly gives the FDA additional authority to regulate the production of food throughout the farm to table chain, the question remains whether it will have the necessary resources to do so.

The FDA is an agency of the United States Department of Health and Human Services which is responsible for overseeing an incredibly broad range of goods, including food, tobacco products, dietary supplements, prescription and over-the-counter pharmaceutical drugs, veterinary products, and cosmetics, amongst other things.   The FDA’s food-related responsibilities include regulation and oversight of roughly 80% of our country’s food supply, namely, all food products with the exception of meat and poultry.   The FSMA has given the FDA numerous new tools to perform its duties, a few of which will be discussed herein, including, mandatory recall, increased oversight and regulation of American facilities and those of foreign suppliers, and the implementation of a few small measures aimed at creating a more informed consumer.

Continue Reading Food Safety Modernization Act: Did Congress Bite Off More Than It Can Chew?

Co-authored by Brian Gross

Navy fighter ship Choice of law analyses can, at times, be complicated affairs.  That is particularly true in asbestos cases in which a plaintiff alleges exposure to numerous asbestos-containing products in multiple states over a prolonged period of years.  An additional layer of complexity is added when some or all of the plaintiff’s allegations relate to asbestos exposure on United States Navy ships.  The question of whether maritime law should apply in such instances has perplexed both state and federal courts for years – sometimes resulting in inconsistent decisions.

Recognizing the history of conflicting case law, Judge Eduardo Robreno – who currently presides over the federal asbestos MDL docket – recently brought some clarity to the maritime law question in a lengthy, 30-page opinion.  See Conner v. Alfa Laval, Inc., 2011 WL 3101810 (E.D. Pa.).  In Conner, Judge Robreno concluded that maritime law will apply to the claims of sea-based Navy servicemen where the allegedly defective product was produced for use on a vessel, but that maritime law will not apply to the claims of predominantly land-based Navy work, even if the allegedly defective product was produced for use on a vessel.  A detailed summary of the decision follows.

Continue Reading Judge’s Decision Brings Much Needed Clarity On The Issue of Maritime Jurisdiction in Asbestos Exposure Cases.

Co-authored by Brian Gross

On September 28, 2011, the Sixth Circuit Court of Appeals awarded Garlock a decisive victory in the matter of Olwen Moeller v. Garlock Sealing Technologies, LLC (C.A. No. 09-5670).  In overturning a jury verdict against Garlock, the Moeller Court, pursuant to the substantive laws of the State of Kentucky, held that plaintiff failed to prove that any alleged asbestos exposure from Garlock products was a substantial factor in the development of Robert Moeller’s mesothelioma.

The facts of the case were not in dispute.  The decedent, Robert Moeller (“Decedent”), was a pipefitter from approximately 1962-1970.  During the course of this employment, Decedent allegedly worked with Garlock asbestos-containing gaskets. Additionally, from 1962 to 1975, Decedent had significant exposure to asbestos-containing thermal insulation.  Both the Decedent’s estate and Garlock agreed that the Decedent’s mesothelioma was caused by asbestos, and that the thermal insulation exposed him to asbestos.

At trial, plaintiff presented the testimony of Richard Hatfield, Dr. Arthur Frank and Decedent’s treating physician, Dr. Charles Webb.  Hatfield testified that Decedent was exposed to asbestos through the removal of Garlock gaskets.  Dr. Frank testified that all of Decedent’s exposures to asbestos, including  the exposure to Garlock gaskets, contributed to cause Decedent’s mesothelioma.  And lastly, Dr. Webb testified that if Decedent scraped and grinded asbestos gaskets, and then in turn inhaled the fibers, that exposure could have caused his mesothelioma.

Based on the testimony of plaintiff’s experts, Garlock argued that plaintiff failed to prove that any exposure to asbestos as a result of working with Garlock products was a substantial contributing factor to the development of Decedent’s mesothelioma, and moved for directed verdict and for judgment on the pleadings.  Both were denied, and Garlock appealed to the Sixth Circuit Court of Appeals.

In overturning the verdict against Garlock, the Court found that while Garlock gaskets may have contributed to cause Decedent’s mesothelioma, plaintiff failed to produce evidence which would “support an inference that it was a substantial cause of his mesothelioma.”  In so finding, the Court held that “Plaintiff failed to quantify [Decedent’s] exposure to asbestos from Garlock gaskets.”   Moreover, because “plaintiff concedes that [Decedent] sustained massive exposure to asbestos from non-Garlock sources, there is simply insufficient evidence to infer that Garlock gaskets probably, as opposed to possibly, were a substantial cause of [Decedent’s] mesothelioma.”

The Moeller decision is part of a growing trend in which courts have begun to look upon with disfavor the plaintiff’s “every exposure” theory of substantial causation.  As a result of this trend, it has become even more important than ever to obtain as much information as possible concerning all of a plaintiff’s alleged exposures.  Moreover, it is increasingly important to drill down on plaintiffs’ experts in order to reveal their inability to quantify a plaintiff’s alleged exposure to a particular defendant’s product.


Co-authored by Brian Gross

When people consider the potential sources of food borne illness, they commonly think of raw meat and contaminated produce.  Food, however, is not the only source of food borne illness.  In fact, one of the most common and dangerous sources of food borne illness is raw milk.  Recently, a group of sixteen fourth graders and two adults at a Wisconsin elementary school became ill after they consumed raw milk at a school function.  The individuals who consumed the raw milk had various symptoms, including diarrhea, abdominal cramping, nausea and vomiting.  Reportedly, a parent of one of the students brought raw milk to the event which was obtained from a bulk tank on the dairy farm of a relative.  Laboratory tests performed by the Wisconsin Department of Health Services linked the Campylobacter bacteria in the stool of the individuals who became ill with Campylobacter bacteria found in milk samples taken from the dairy farm from which the raw milk originated.

Raw milk is capable of causing serious illness or even death, as it commonly carries bacteria, salmonella, E. coli, parasites and/or viruses.  Unlike pasteurized milk, raw milk has not been heated in order to eliminate any potential illness causing germs.   Nevertheless, there exists a growing market for raw milk amongst consumers who believe that pasteurization eliminates valuable enzymes and nutrients.   In fact, dairy farms like the Organic Valley, an organic milk cooperative which includes approximately 1,600 dairy farms, now operate on a “dual system,” in which they supply raw milk both for pasteurization and for consumption.  Moreover, it is believed that in the United States nearly three million people regularly consume raw milk.

The danger of raw milk is that unlike meat, poultry and fish, it is a “ready to consume” product, which means that it is not expected to be cooked or prepared before consumption.   Thus, despite being produced in an environment which lends itself to fecal contamination, raw milk does not undergo any treatment to prevent illness associated with such contamination.   Moreover, milk is a main ingredient in many foods whose preparation does not involve cooking or other processes which would rid them of any contaminants, including unpasteurized cheese and yogurt.

The Centers for Disease Control and Prevention (CDC) reports that from 1998 to 2008 there were 86 outbreaks caused by consumption of raw milk or raw milk products, resulting in 1,676 illnesses, 191 hospitalizations and 2 deaths.   Furthermore, 82% of the dairy product related illnesses reported to the CDC between 1973 and 2008 involved the consumption of unpasteurized milk or cheese.   Clearly, raw milk is a common and dangerous source of food borne illness.

Raw milk is no different from any other source of food borne illness in that the best form of prevention, aside from pasteurization, is good hygienic practice during milking, packaging and transportation.   Unlike other foods, however, even the best practices cannot entirely eliminate illness causing contaminants from the product.   Accordingly, if you are going to sell, serve, or use raw milk as an ingredient in your products, know your source and understand that the inherent risks of food borne illness can be minimized through good hygienic practices, but not entirely eliminated.