Lawsuits provide an additional incentive for companies to produce and distribute foods that are safe and not misleading. Lawsuits may be civil or criminal. Civil lawsuits are legal proceedings seeking compensation for injuries incurred. For example, getting a foodborne illness and seeking redress to cover cost incurred for medical expenses and lost income during illness. A civil lawsuit may be private or a class action. A private lawsuit involves one person seeking damages for himself only, while in a class action, the person represents a group of individuals who have been affected in the same way. In law, this is referred to as “commonality”. Pursuing a class action is beneficial because it holds the offending party to greater accountability than if one person sought damages. Hence the offender will have more incentive to produce quality in the future.

Consider that it would not mean much to a company if one person sues for $100 in damages. However, if a class of 10,000 sues for  $1,000,000 in damages then this is a different matter. Private actions are more appropriate when damages are unique, that is, there is no commonality with a class. For example, if your reaction to consuming an allergen causes skin damage and no one else was affected in that way, you cannot be a member of the class. Depending on the extent of the injury it may be more lucrative to sue on your own. Class actions sometimes don’t work out very well monetarily since depending on the size of the class, you may only get a few bucks in compensation or a coupon for a new product. Interestingly, the private lawyers walk away as the big winners, bagging between 25-33% of the compensation package as part of the contingency arrangement. By contingency, I mean that the attorney agreed to work without charging any upfront cost but receive payment at the end upon getting a favorable outcome.

In a civil case, the person bringing the complaint is called the plaintiff, while the person on who is defending himself against the complaint is called the defendant. A party wins the case only upon a “preponderance of evidence”. That is, the person providing the greatest evidence to “tip the scale” wins. Therefore the weight of your evidence need only be 51% for you to win. If the defendant loses the case, we say that he is found to be liable for damages. Note that in civil actions, there is no jail time. The liable party simply needs only to pay for the damages.

A civil case requires that the plaintiff brings a “cause of action”. There are three types of causes: strict product liability, breach of warranty, and negligence.

  1. Strict Product Liability: A claim that the product was defective and unreasonably dangerous when it was in the manufacturer’s control and therefore resulted in injury. The amount of precaution that the company may claim that it took is inconsequential. What matters is if the plaintiff is injured and that the injury can be traced directly to the manufacturer.
  2. Breach of Warranty: A claim that the product was inconsistent with an expressed or implied warranty that it was safe. An example of an expressed warranty would be a statement on the label saying “lactose free”. A breach of implied warranty arises when there was a reasonable expectation that the food was free from the injury-causing substance, such as the expectation that the chicken breast you were eating was free from piece of glass that broke your teeth.
  3. Negligence: A claim that the defendant, through neglect did not take “reasonable care” to prevent injury to the user. In negligence cases, causation of injuries is sometimes difficult to prove. In those cases the plaintiff can use the theory of res Ipsa Loquitur (latin for “the thing speaks for itself”) to make his case. Res Ipsa Loquitur follows three principles: (a) The plaintiff did not contribute to the damage; (b) The incident would not have happened if someone was not in negligent; (c) The incident was under the control of the defendant.

Reference: Sanchez, M. C. (2015). Food law and regulation for non-lawyers – A US perspective. New York, NY: Springer International.

Courtney Simons
Courtney Simons is a food science professor. He holds a BS degree in food science and a Ph.D. in cereal science from North Dakota State University.
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