No matter how many times I hear people blame victims for their ground beef-related E. coli O157:H7 infections, I continue to be surprised. The comments usually follow a set structure. Step one: the consumer should have known better. “We all know that ground beef is dangerous!” Step two: everyone knows that you have to cook ground beef until (insert pseudo-science here). “You have to cook a burger until the juices run clear!” Step three: self-affirmation. “I’ve cooked burgers all my life and I have never been sick!” There’s only one problem with these arguments: they are completely unfounded. The federal government and courts recognized this fact many years ago; it’s now time for the general public to catch up.
In 2006, eighteen members of the Salem Lutheran Church in Longville, Minnesota became desperately ill after eating E. coli O157:H7-contaminated meatballs at a church potluck. Due to their infections, one member died and another experienced acute kidney failure. The victims of the outbreak subsequently filed a law suit against the makers and the sellers of the ground beef. A year later, one of the defendants in the case, Nebraska Beef, filed a third-party complaint against the church in an attempt to place the blame for the illnesses on the victims. The complaint specifically alleged that “the damages sustained by the Plaintiff[s], if any, [were] the direct and proximate result of the negligence and/or other fault for tortuous conduct of Third-Party Defendant Salem Lutheran Church.”
From a public relations standpoint, Nebraska Beef’s lawsuit against the church-goers was a complete disaster. On June 8, 2008, the New York Times ran an article about Nebraska Beef’s legal maneuver entitled “Out of a Church Kitchen and Into the Courts.” (http://www.nytimes.com/2008/06/08/business/08feed.html). The article pointed out that the members of the Salem Lutheran Church were being blamed for their illnesses, despite the fact that the Minnesota Department of Health had stated that, in all likelihood, the ground beef used to make the meatballs was contaminated well before it was purchased by the church members.
The “volunteer church ladies,” as they were referred to in the article, took the same precautions while cooking the raw meat that most people would take. To determine whether the meat was properly cooked, the church members had cut a few meatballs open to visually inspect the color of the inside. They had not, however, used a meat thermometer to ensure that the internal temperature had reached 160 degrees.
So, aside from the obviously bad PR that results from suing a church, what was wrong with Nebraska Beef’s decision to sue the victims? Isn’t the victim of an E. coli O157:H7 infection always to blame if she gets sick because she didn’t use a meat thermometer? This can be a touchy issue, especially in situations like the Salem Lutheran Church case where the injuries suffered proved to be fatal. It’s also an issue that comes up fairly often in cases of foodborne illness.
This issue begs one fundamental question: What constitutes “proper” cooking of ground beef? After all, even if meat is contaminated, heat of a certain temperature will kill the harmful bacteria. Should it matter that the beef was contaminated before it reached the consumer? On the other hand, aren’t there people who prefer their ground beef rare or medium-rare? Is a “rare” burger properly cooked, even though the internal temperature may not have reached 160 degrees? Therein lies the quandary: “proper” cooking of meat is, and always was, a reference to visual appearance and texture, not to temperature.
The issue of proper cooking of ground beef became so fundamental in foodborne illness litigation that, in 1994, a federal court squarely addressed it in the case of Texas Food Industry Ass’n, et al. v. Espy. In Espy, several supermarket and meat industry organizations sought an injunction against the USDA, attempting to prevent the agency from declaring E. coli O157:H7 an adulterant, and barring it from implementing an E. coli sampling program. In denying the injunction, the court cited several reasons for allowing the USDA to declare E. coli O157:H7 an adulterant, one of which was the public’s perception of “proper” cooking of ground beef. In its holding, the court stated:
[U]nlike other pathogens, it is not “proper” cooking but “thorough” cooking that is necessary to protect consumers from E. coli. The evidence submitted by Defendants indicates that many Americans consider ground beef to be properly cooked rare, medium rare, or medium. The evidence also indicated that E. coli contaminated ground beef cooked in such a manner may cause serious physical problems, including death. Therefore, E. coli is a substance that renders “injurious to health” what many Americans believe to be properly cooked ground beef.
In allowing the USDA to declare E. coli O157:H7 an adulterant, the Espy court recognized the danger of the deadly bacteria and allowed the USDA to institute a zero-tolerance policy regarding the pathogen. The nuanced discussion of proper cooking admitted a fact that the court knew just as well as everyone else: very few people regard cooking a hamburger as an exact science. A consumer can walk into nearly any restaurant in this country and order a hamburger that is cooked rare. In such a case, chances are slim to none that the restaurant kitchen staff carefully checked the internal temperature of the patty with a meat thermometer prior to serving the burger to their customers.
Despite the fact that a federal court has recognized the difficultly in saying that consumers should be able to mitigate the danger of tainted meat through “proper” cooking, I understand that some “blame the consumer” advocates may still disagree with the title of this article. To those persons, perhaps it’s better to approach this dilemma not by looking at the consumer’s actions, but by looking at a manufacturer’s legal duties.
The first step towards understanding the duties of a ground beef manufacturer is to establish a baseline that I think that everyone can agree on: ground beef that contains E. coli O157:H7 is a defective product. The USDA established as much when they declared E. coli O157:H7 an adulterant under federal law in 1994. It makes sense from an intuitive standpoint as well. A large meat company, such as Nebraska Beef, does not have a drawing room where they create blueprints detailing how to make ground beef patties that contain E coli O157:H7. To the contrary, such companies spend a great deal of time and money calculating how to ensure that their products do not contain bacteria. In other words, Nebraska Beef does not design their beef products to contain E. coli O157:H7, thus, any ground beef product that does contain the bacteria is deemed defective, both under internal standards and federal standards.
An understanding that ground beef that contains E. coli O157:H7 is defective is a key to realizing why Nebraska Beef’s attempt to shift blame to the Salem Lutheran Church was a moot point. The law does not look kindly upon manufacturers of defective products that cause injuries to consumers. Since the late 1800s, the American legal system has recognized that manufacturers of certain products are strictly liable for injuries resulting from the proper use of the products. Strict liability means that the manufacturer will be held responsible for damage caused by their defective product, regardless of whether they put proper care into making the product. Thus, if a meat company sells ground beef that contains a deadly pathogen, and that pathogen causes injuries to the purchaser of the ground beef, the meat company is
liable, even if they tried
their best to make sure the meat didn’t contain any harmful bacteria.
The concept of strict liability for manufacturers of defective products can perhaps be more easily understood with a quick analogy. Let’s say an automaker sells a brand new, perfectly fine looking car to a loyal customer. Unfortunately for the customer, there is a hairline crack in steering axle that has been there since the car was assembled. When the car was sold, the manufacturer didn’t know the crack was there, nor did the dealer or the customer. The customer drives the car off of the lot and onto the freeway. Ten minutes later, as the car rounds a turn, the axle breaks, sending the car careening out of control and off a cliff. Who’s liable? Well in that case, it seems pretty intuitive. The customer could not have been expected to inspect every inch of the car before he bought it, therefore the law says that the manufacturer is liable for the customer’s injuries, regardless of the fact that it didn’t mean to install a faulty steering axle.
The law treats manufacturers of beef products no differently than it treats the car manufacturer in the above example. So long as a customer has not substantially altered a product and is using the product in the way that it was intended to be used (in the case of ground beef, cooking it and eating it), the manufacturer will be liable for the harm caused by any defects–whether the defect was a faulty axle or deadly bacteria.
With these examples in mind, we can finally tell the whole story of the volunteer church ladies from Salem Lutheran Church and understand why they were not to blame for their own injuries. Nebraska Beef manufactured a product that the Minnesota Department of Health said, in all likelihood, was contaminated with E. coli O157:H7. The federal government has recognized the danger of E. coli O157:H7, and has accordingly instituted a zero-tolerance policy for ground beef that contains the bacteria. Nevertheless, the defective beef eluded inspectors and was sold to the church members. The volunteer church members then formed the beef into meatballs and cooked it, using the meat in the normal manner in which one would use such a product. They even visually checked the “doneness” of the product after cooking it. When the members subsequently fell ill, Nebraska Beef became liable for the full costs of the emotional and physical injuries that resulted because they shipped a poisoned product, plain and simple.
In short, were it not for Nebraska Beef’s sale of defective ground beef, the members of the Salem Lutheran Church would not have suffered the injuries that they did, regardless of the cooking techniques that they employed.
As is the case with any abbreviated summary of the law, there are about a thousand nuances that were left out of the above discussion. The two primary concepts, however, still ring true: (1) the USDA has a zero-tolerance policy for E. coli O157:H7 in ground beef, and (2) companies that manufacture defective products are liable for the injuries caused by the use of their products. To be certain, these concepts should not encourage consumers to abandon all safety precautions. Indeed, many states allow a jury to apportion a percentage of fault to a plaintiff, sometimes even nullifying the plaintiff’s claim if they are found even one percent at fault. More importantly, however, a purchaser of ground beef should always follow cooking procedures that are designed to kill any harmful bacteria. (For more on proper cooking procedures, see http://www.foodsafetynews.com/2009/08/ground-beef-the-importance-of-safe-handling-practices-and-accurate-final-product-temperature/).
Mitigating factors aside, it is crucial that the American public recognizes that the victim is never to blame when he or she is injured by a defect in a product that was used for its normal purpose and that looked perfectly fine. The public must recognize this out of respect to the victims, such as the members of the Salem Lutheran Church in Longville, Minnesota, and in recognition of the over one hundred years of case law that shaped this concept in the American legal system.
Naysayers and cynics will always argue that companies should not be held responsible for the subsequent use of their products. They’ll argue that there is no way a company can possibly make all products completely safe. They’ll also argue that companies shouldn’t be held liable to pay for injuries suffered by only a tiny percentage of their customers. To them I only have this to say: when you are injured because your steering axle has a hairline crack or because your food contains deadly pathogens, the rest of us will remember exactly who to blame. I’m sure you’ll gladly take your injuries in stride. After all, as I know you’ll remind us, if you would have been just a bit more careful, you wouldn’t have been harmed by those defective products, right?© Food Safety News