Food Safety Counsel : Food Safety Defense Lawyer & Attorney : National Food Industry Counsel : National Food Regulatory Lawyer and Attorney, FDA Lawyer and Attorney. USDA Lawyer and Attorney : Gass Weber Mullins Law Firm

Our food safety lawyers work with food companies nationwide, helping them comply with complex food safety regulations, decrease their food safety risk, prevent unwanted litigation, manage recalls exceptionally quickly and defend high profile foodborne illness claims -- when they do occur. 

Over the last decade, the firm has assisted food companies throughout the country on a wide-range of food safety matters involving regulatory compliance, crisis planning and management, and outbreak litigation.

During this period, the firm has defended food industry clients against high-profile foodborne illness outbreak claims in more than 2o states throughout the country (including Arizona, Arkansas, Alabama, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Wisconsin). These have included outbreaks and claims involving a wide-range of foodborne pathogens, including E. coli O157:H7, Campylobacter, Clostridium Perfringens, Norovirus, Salmonella and Staphylococcus.  The firm's food safety team also assists clients with crisis management and other issues in advance of and following major food product recalls.

Shawn K. Stevens, a member of the firm's food safety team, is one of the only lawyers in America who dedicates his practice entirely to representing the food industry. 

Mr. Stevens counsels food industry clients throughout the country (including some of the nation’s largest food producers, national restaurant chains, and several food distributors and grocers) on a wide-range of food safety regulatory and liability issues.  Mr. Stevens works closely with clients to identify and appropriately manage risk, plan and prepare for possible crises, and also respond to governmental enforcement actions and recalls.  Mr. Stevens also defends industry clients against high-profile foodborne illness outbreaks and claims. Mr. Stevens has additional, wide ranging experience counseling clients in commercial, insurance and medical malpractice disputes.

In addition to his legal practice, Mr. Stevens also speaks regularly to national and international audiences on issues relating to food safety, regulatory compliance, crisis management, and foodborne illness outbreaks, recalls and lawsuits.  Mr. Stevens also serves as a weekly contributor to Meatingplace (as the author of its newest “Legally Speaking” Blog), writes a dedicated monthly food safety column for the National Provisioner, and is a regular contributor to Food Quality Magazine.

Mr. Stevens has also been recognized by his peers as a Wisconsin Super Lawyer Rising Star, and was recently selected as one of Milwaukee's 2011 "Forty Under 40." 

Ralph A. Weber, Ralph A. Weber has represented clients in several of Wisconsin’s highest profile lawsuits over the past several decades, and currently litigates for one of the world’s largest companies in food safety cases throughout the United States. His trial experience includes many lengthy jury and court trials. His appellate experience includes multiple oral arguments before the Wisconsin Supreme Court and intermediate appellate courts.

The prestigious international lawyer reference, Chambers Guide-USA, identifies Mr. Weber as a top commercial litigator. He also has been recognized by his peers through selection to Best Lawyers in America, Wisconsin Super Lawyers, and has been selected one of the Best of The U. S.’s list of “Best of Class” service providers in the United States.

An Adjunct Professor at Marquette University Law School, he taught Trial Advocacy for 15 years, and created a jury research and courtroom facility, the Trial Science Institute. In addition to speaking about litigation subjects, Mr. Weber co-edited a best selling book, Dear Americans: Letters from the Desk of Ronald Reagan (Doubleday, 2003).

Mr. Weber served on the Law Review at Columbia University Law School, graduating in 1982, and then served as a Law Clerk for the Hon. Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit. He graduated summa cum laude from Marquette University in 1978.
 

Amelia L. McCarthy, a member of the firm, specializes in general commercial, health care, food and product liability litigation.

She also currently serves as a Municipal Prosecutor for a Wisconsin community and has served as a Public Service Special Prosecutor for the Dane County and Milwaukee County District Attorney's offices. 

Throughout the course of her career, Ms. McCarthy has tried over 50 court and jury trials. She also successfully defended four class action lawsuits, obtaining three dismissals with prejudice and one nuisance value settlement without having to proceed through class certification.

Ms. McCarthy has been recognized by her peers through selection to Wisconsin Super Lawyers and was recently named one of Milwaukee's Top "40 under 40" business leaders.

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Most food manufacturers, of course, hope that their persistent commitment to food safety will be enough to guarantee a safe product and completely eliminate any potential need for a future recall.

Despite such optimism, however, the possibility always exists (whether because of supplier issues or an internal problem completely unanticipated) that any company may someday be faced with an unexpected recall. For this reason, any food company that embraces a strong commitment to consumer safety, should also prepare in advance for the possibility of a product recall – no matter how remote.

We, of course, have worked with mutiple industry clients preparing for recalls, designing effective recall procedures, providing recall training, and managing crisis. We have also, in turn, worked closely with many clients through the late nights which follow the rare, but disappointing, realization that a voluntary and precautionary product recall may actually be warranted.

And, last month, I shared some additional perspective on crisis management and recall planning with Meatingplace (“Food Safety Attorney Advice For Companies Caught In A Recall”).  Moving forward, we plan to continue to offer our advice on these and other issues with contributions to additional print and electronic magazines such as the National Provisioner.  Watch for our monthly column begining in July 2010.

In addition to these existing and continuing contributions, a new industry report should further enhance our understanding of best practices for recalls. The report, “Recall Execution Effectiveness: Collaborative Approaches to Improving Consumer Safety and Confidence,” was conducted by Deloitte on behalf of the Food Marketing Institute (“FMI”), the Grocery Manufacturers Association (“GMA”), and GS1 U.S.

The FMI and GMA spearheaded the research because, for the reasons noted below, effectively managing recalls has become a “top priority for the entire industry:”

• Rising Number and Complexity of Product Recalls. The number of product recalls has more than doubled since 1999 (with the greatest increase in recalls linked to Salmonella contamination and undeclared allergens). The average cost of a recall to companies is $10 million, in addition to brand damage and lost sales.

• Growing Consumer Risk and Awareness. The consumption of raw products is increasing rapidly while the percentage of the U.S. population most at risk for foodborne illness is also increasing. A recent study found that 57 percent of consumers have stopped eating a particular food because of a food recall.

• Significant Impact on Share Price and Market Value. The study found that companies with poor recall execution processes could see stock price declines of up to 22 percent within two weeks after a recall announcement.

• Increasing Pressure From Trading Partners. Retailers are demanding a better recall execution process and given the number of recalls, are playing a more proactive role in quality assurance. As we reported earlier, Walmart set new standards for its beef suppliers.

In turn, the recommendations of the report cover three general areas: (1) communication and collaboration; (2) processes, organization and metrics; and (3) technology. Some of the communication initiatives include working with suppliers to conduct analysis on root causes of recalls, using multiple vehicles for notification of recalls (press releases, consumer loyalty cards, sales teams, etc…) and running mock recall exercises.

The report also urges companies to continuously refine their recall procedures, to strictly adhere to HACCP methodologies, and to invest early in employee training and planning for product replacement after a withdrawal. Finally, the report suggests that companies should also learn to understand and, to the extent possible, embrace new technology. In many instances today, recall processes are automated (and integrated) with systems such as the Rapid Recall Exchange and the Reportable Food Registry.

Ultimately, effective recall planning will remain a top priority for any company that manufactures and distributes food. In turn, we will continue to integrate many of these and other recommendations into our own planning guidelines. We will also be available to assist with your own recall planning and, whenever necessary, effective execution.

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It is no small secret that our collective survival depends, quite literally, on the food we eat.

The availability and affordability of food has a direct impact on our individual health, along with (if we work in the food industry) the success and longevity of our careers. Indeed, if we produce food for others, the quality of the food we market and sell also affects our individual ability to provide for and feed our families. In this regard, every one of us (no matter how large or small our role may be) has an interest in making sure that the food we produce (and, ultimately, consume) is the safest it can possibly be.

To date, we’ve done an excellent job. Nevertheless, despite our best efforts, the existence of naturally occurring pathogens in our environment – and by extension in many foods – remains a real part of our business and lives. Given the limitations of science and, in no small part, consumer behavior, no one is immune. Every month, for instance, approximately 6,000,000 Americans will develop some type of food-borne illness. This also means that – each year– nearly one in every four Americans will be affected. Of these, approximately 325,000 individuals will be hospitalized, and nearly 5,000 could die.

And, no matter how much we care about food safety, this trend is not only likely to continue, but will likely accelerate. Given recent and substantial improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported. By extension, these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

This resulting increase in reported outbreaks, along with a corresponding increase in media coverage, has also affected public and governmental interest in food safety. The politics of food safety, of course, translates exponentially into more regulation and a significant increase in food litigation. Thus, if your company has not yet faced a food-borne illness claim, chances are in the short term it will. Additionally, for this reason, businesses should begin contemplating how to best position themselves (from both a food safety and liability standpoint) to anticipate future problems, reduce company exposure, and react appropriately when an alleged food-borne illness or outbreak does indeed occur.

Not all food-borne illnesses claims, however, have merit. As noted, as a direct result of the growing public and political awareness in food safety, we have also witnessed an explosion in food-borne illness and outbreak litigation. In turn, we also know that, because of limited resources and other reasons, some outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. In these and other cases, many claimants (and their attorneys) continue to sue the wrong party.

Thus, here too, it is critical that food companies understand how food-borne illnesses are tracked, identified and confirmed, what to expect in a food-borne illness investigation, how to respond during an outbreak or recall, how to react when confronted with a potential claim, and how to properly defend their business and reputation when lawsuits are ultimately filed.

In any event, this is why we are proud to offer our Advance Series on Managing Food-borne Illness Outbreaks and Claims. For nearly a decade, our food safety team has helped food companies across the nation prevent litigation, manage crisis and defend claims (both meritorious and non-meritorious allegations). In the coming weeks and months, this series will provide additional and timely insight on what food companies can do to anticipate risk and reduce potential exposure, to effectively respond to and manage food-borne illness outbreaks and claims, and to effectively defend food-borne illness litigation and lawsuits when they do, indeed, occur.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of the incredible efforts hard working Americans to provide safe and affordable food to our families, we feel inclined, when lawsuits overreach, to protect and defend yours.

Again, thanks for a job well done. And, welcome to www.foodsafetycounsel.com.

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So, here we go again. Thinking about food rather than eating it. But, that's okay.

Because helping food companies decrease the risk of potential litigation, finding the real source of an outbreak (when it does occur), helping a faultless company avert a crisis, working to extract an innocent food producer from a stray investigation, or simply proving decisively before trial that a food-borne illness claim lacks all merit, is well worth the small sacrifice of delaying a meal.

For nearly a decade, we have worked nationally with food companies and food safety professionals preventing litigation, managing outbreaks and defending claims.

During this period, we have observed (first hand) what really happens inside our processing plants, grocery stores and restaurants, and are here to proclaim, without hesitation, that we are proud to eat the food you make. Additionally, while our food safety system may never be perfect, it is extremely well suited to identify problems when they arise, to encourage quick and effective solutions, and to help ensure that our food supply remains one of the most plentiful, affordable and safest in the entire world.

Thank you for a job well done!

Welcome to www.foodsafetycounsel.com.

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In many food-borne illness cases, a winning defense begins long before a claim is actually filed.

Whether you are a food manufacturer, processor, distributor, grocer, restaurant or franchisor, there is a strong possibility you will become aware of illnesses potentially linked to your business or product soon after they are reported to state and federal investigators.

Thus, when faced with an alleged food-borne illness or outbreak, it is essential that you immediately understand the full nature of the investigation. Once an illness or outbreak is identified, you should immediately retain competent counsel who can work closely with state, local and federal agencies to, at the very least, accomplish the following goals:

• To directly assist investigators, where appropriate, during the course of the investigation;

• To determine, while assisting in any ongoing investigation, whether your product is (or is not) likely involved with the alleged illnesses or developing outbreak;

• To help quickly define (if your product will likely be implicated) the particular product involved along with the parameters of any potential voluntary recall;

• To prepare and refine appropriate responses (with an eye toward future litigation) to any formal requests from governmental agencies for production information, distribution records and/or proposed corrective actions;

• To track, in real time, the identification of existing and potential future illnesses and claims (this will likely pay significant dividends when such claims are later threatened or filed); and

• Based upon the information developed during the course of the ongoing investigation, to articulate appropriate responses to media inquiries.

Assuming that your company is well positioned at the outset of an investigation, you may be able (through your own internal efforts) to help establish that your product or business is not associated with the outbreak being investigated. Alternatively, if your product is likely implicated, aggressively tracking real time information will allow you to maintain a complete picture of the developing investigation, play an active role in the investigation itself, take immediate and productive corrective actions, if necessary, respond appropriately to media, and begin to develop a response to claims (whether meritorious or not) which will likely later result.

In this regard, focusing early on potential future claims will also pay huge dividends when litigation is later threatened. The information learned in the early stages of an investigation will in many cases allow you to understand, at the outset of an event, the true scope and nature of potential illnesses. In turn, once emerging cases can be pinpointed geographically, additional research can be performed to learn more about the circumstances surrounding each potential claimant. Using contacts established early on with governmental investigators, internet databases and other resources (such as media reports and hospital-facilitated patient websites), it may also be possible to track closely the progress and recovery of potential claimants as well.  Here too, if these potential claimants have already been identified and nature of their illness fully understood, false allegations when claims are later threatened or filed (i.e, the exaggeration of an injury or the understatement of an excellent recovery) can be quickly distinguished and separated from potentially meritorious or more serious claims.

Additionally, as noted, your company must also immediately consider how you wish to present yourself in the media.  A company spokesman should be selected, keeping in mind that this person will likely be deposed and/or his remarks used at trial. It may also be appropriate to have your lawyers respond to press inquiries, especially if you are responding to a statement by a plaintiff’s attorney. A press release that includes quotes on behalf of the company can also work, and may be the most prudent course in rapidly evolving circumstances where much remains unknown. In all events, it is necessary to have in mind what the company’s themes will be at trial, so that early statements will be consistent with arguments that may be made months and years later. Additionally, assuming your company has cooperated fully with governmental investigators throughout the course of an investigation, any statements issued by the government will likely be favorable to your company, and may also (at least implicitly) adopt some of these themes as well.

Once press releases are issued, expect to see significant press coverage and blog entries on the leading plaintiffs’ lawyers’ sites, including www.marlerblog.com. Because the FSIS provides email alerts about recalls, very little time passes between the press release itself and its appearance in the press and on the web. Claims and lawsuits, legitimate and not, of course follow promptly.

Alleged illnesses, outbreaks and recalls can be managed effectively, assuming that you and your company aggressively look for ways at the outset of an investigation to help governmental investigators solve the problem.  In the future, we will continue to offer advice from past experiences on how to best manage potential outbreaks and recalls.

While no two cases are the same, it is essential to remember that an effective defense begins the moment any potential illnesses and outbreaks are identified. 

Copyright 2009 by Shawn K. Stevens

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After federal and state health officers have done their jobs (1) finding common patterns in bacterial infections, (2) using the tools of epidemiology to find statistically significant connections between patients and common exposures, and (3) requiring companies to recall the suspect product (and often, a great deal more), the media and lawyers go to work.

In the meat industry, for example, the first step after a likely source is confirmed is a Press Release sent out by the USDA’s Food Safety Inspection Service (FSIS) announcing the meat producer, the approximate number of pounds recalled, the production dates at issue and the names under which the product was distributed. The following is an excerpt from a recent press release:

Once these Press Releases are issued, expect to see significant press coverage and blog entries on the leading plaintiffs’ lawyers’ sites, including www.marlerblog.com. Because the FSIS provides email alerts about recalls, very little time passes between the Press Release itself and its appearance in the press and on the web.

Companies, therefore, must immediately consider how they wish to present themselves in the media. A company spokesman should be selected, keeping in mind that this person will likely be deposed and/or his remarks used at trial. It may also be appropriate to have your lawyer respond to press inquiries, especially if you are responding to a statement by a plaintiff’s attorney. A press release that includes quotes on behalf of the company can also work, and may be the most prudent course in rapidly evolving circumstances where much remains unknown. In all events, it is necessary to have in mind what the company’s themes will be at trial, so that early statements will be consistent with arguments that may be made months and years later.

Claims and lawsuits, legitimate and not, of course follow promptly. 

Copyright 2009 by Shawn K. Stevens

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