Editor’s note: This is the first in a series of papers written by students in the Food Safety Litigation class taught by Professors Bill Marler and Denis Stearns in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law.

By John Mulcahy

“We have met the enemy and he is us.” -Walt Kelly

It has been over thirty years since the West Coast fast food chain, Jack in the Box, found itself embroiled in litigation over an E. coli outbreak that stemmed from undercooked hamburger patties sold in several of its locations.  Sickening, maiming, and killing children in several Western States, the insidious nature of the outbreak proved to be a watershed moment in food safety.  From lawyers and doctors to government officials and c-suite executives, interested parties vowed to improve food safety.  Jack in the Box, then the sixth largest fast-food chain in the United States, exerted pressure on its suppliers, Congress held hearings, and lawyers brought actions, all in an effort to ensure that the devastation that resulted from the outbreak would not be replicated.    

Since the resolution of the last remnants of the litigation that stemmed from the Jack in the Box outbreak, advances in science and technology have proliferated at an unfathomable rate, all while the public commitment to ensuring a safe food supply has remained steadfast.  Because of this, it would be reasonable to assume that widespread outbreaks of foodborne illness no longer pose a health risk.  Yet, in the intervening three decades, the incidents of food borne illness in America have climbed year over year, with little exception.  And, with each new outbreak, comes a rash of litigation. 

The role that litigation plays in advancing society’s collective goal of ensuring a safe food supply is viewed differently by the various stakeholders.  Certainly, the victims of a foodborne illness outbreak maintain a favorable view of the lawyers who hold producers and purveyors to account through the justice system.  The governmental officials on whose watch the outbreaks occurred and the companies that failed to protect consumers, however, do not hold the lawyers or their tactics in the same regard.  In their eyes, the lawyers are profiteering off of tragedy, advancing their own pecuniary goals under the guise of altruistic service.  The retort from the legal community is simple and direct: if you don’t want further litigation and the criticism that comes with it, deliver a safe product to consumers.  This message, though, is delivered with a wry smile from the litigators filing the lawsuits on behalf of the sick and injured because they know, as we all do, that no degree of care can eliminate the proliferation of foodborne illnesses.  

While goods can be manufactured to the strictest specifications and subjected to multiple, often computerized, quality control regimes, it is impossible to remove the human element from the food chain.  And, whenever safety depends on the vigilance of everyday people, it is not possible to maintain a perfect track record.  This is illustrated by certain aspects of two foodborne illness outbreaks that occurred decades apart, the Jack in the Box E. coli outbreak of 1993 and the Chipotle norovirus outbreaks of 2015.  In both outbreaks, the human factor was dispositive, but not necessarily in the way one would expect.    

On its face, the many failures that caused the Jack in the Box E. coli outbreak seem apparent.  Jack in the Box purchased meat that contained E. coli and then failed to cook the meat to the temperature required by the State of Washington.  If the meat had been cooked to the required temperature, the E. coli would have been killed and the outbreak would not have occurred.  From the management of the meat processing plants, to the State of Washington health officials, to the Jack in the Box corporate officers, the number of people who, if they had done their jobs properly, could have stopped the outbreak are many.  Their failings, though, are outsized and would lead one to believe their ineptitude could be remediated to ensure that an outbreak of that nature would never happen again.  But, remember, perfection is not possible and there was another less apparent aspect of Jack in the Box’s operations that, in essence, caused the outbreak.  

While many of the Jack in the Box restaurants received the tainted meat, only the patrons of some of the restaurants were sickened.  Like most fast-food restaurant chains, the meat was cooked for the same amount of time, at the same temperature and in the same manner at each Jack in the Box restaurant.  It was anomalous that the exact same conditions could result in such wildly different results.  While it is true that the meat was cooked exactly the same way in each restaurant, the age of the grills the meat was cooked on varied from restaurant to restaurant.  The newer grills held their temperature, and the older grills did not.  It was fortuitous that Jack in the Box failed to adopt the State of Washington’s requirement that all meat be cooked to 155 degrees.  The E. coli was killed at Jack in the Box’s standardized cooking temperature of 140 degrees, which was achieved at each restaurant that utilized the newer grills.  Stripping the Jack in the Box outbreak down to its simplest form reveals that had Jack in the Box properly calibrated its grills, the outbreak would not have occurred.  The ineptitude of the meat processors, the health inspectors and the executives at Jack in the Box would have been rendered moot had someone confirmed the grills actually reached their set temperature.  Food safety requires an unbroken chain of perfection.  If any link is broken, ensuring an outbreak does not occur is impossible.

 The Department of Justice’s press release from 2020 was, in part, succinct, “Chipotle failed to ensure that its employees both understood and complied with its food safety protocols, resulting in hundreds of customers across the country getting sick.” One of the sicknesses referred to in the press release was norovirus, a highly contagious pathogen that can cause diarrhea and vomiting.  Unlike Jack in the Box where a bacterium in the food being served caused the outbreak, the food that was being served by Chipotle was safe, it was workers serving the food that were not.  In separate instances in California and Massachusetts, hundreds of Chipotle customers were sickened when a single employee in each of the restaurants came to work ill.  In 2015, the year of the norovirus outbreaks, Chipotle had nearly 60,000 employees, representing 60,000 links in the food safety chain.  It took the actions of two such employees to break the chain and affect the lives of hundreds of people.  

When the food safety record of a multi-national company that employs thousands of workers comes down to the actions of a single employee, the scale of the monumental challenge of ensuring food safety comes into focus.  Today, Chipotle employs nearly 100,000 people and it is self-evident that it would be impossible to ensure that each individual follows all of the company’s food safety protocols.  In fact, the only action that has resulted in a reduction in the incidents of food borne illness in the last several decades, was the wholesale closure of restaurants during coronavirus pandemic.  According to FoodNet, incidents of food borne illness decreased in both 2020 and 2021.  While there is some debate as to whether other factors contributed to these reductions, such as a lack of access to in-person medical care or testing, given the sheer number of outbreaks that originate from restaurants, it is reasonable to assume that at least some of the amelioration of foodborne illness during this time was due to the remedial measures put in place to combat the pandemic.  The multi-year reductions illustrate that the only completely safe restaurant is a closed restaurant.   

According to the U.S. Bureau of Labor Statistics, in 2022, the last reporting year, millions of Americans worked in the food service industry.  Which means, on any given day, there is an infinite number of opportunities for human transgression.  Whether it is a Jack in the Box employee who fails to calibrate a grill or a Chipotle employee who comes to work symptomatic, it is not possible to hedge every apparent or obscure risk.  And, when one error has the potential to result in widespread sickness, it is no surprise that it has proven to be impossible over time to curtail the incidents of food borne illness.  As long as Americans are eating, the outbreaks will continue and, like it or not, so too will the litigation. 

John Mulcahy

About the author: John Mulcahy of Connecticut, is Vice President, Shareholder, & Director, Updike, Kelly & Spellacy, P.C. He is J.D., Quinnipiac University School of Law Merit Scholar. Quinnipiac Law Review M.S., summa cum laude, Political Science, Southern Connecticut State University B.S., Political Science, Southern Connecticut State University.