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Estimated 400 People Sick from McDonalds Salad Parasite Outbreak

Eating healthy at McDonalds could get you sick. The Food and Drug Administration (FDA) reported that about 395 individuals had gotten sick after eating McDonald’s salad. About 16 people were hospitalized. About 15 states were affected, with most of the contaminated salad coming from Connecticut, Illinois, Iowa, Tennessee, and Virginia.

The FDA linked the illnesses to the Cyclospora parasite, a foodborne parasite associated with fecal matter. The fecal matter most likely came from manure used to grow the salad lettuce, but it is also possible that underpaid employees were prohibited from using the restroom.

Cyclospora infection may cause diarrhea, frequent and volatile bowel movements, loss of appetite, fatigue, stomach cramps, bloating, increased gas, and nausea. Symptoms can last anywhere from several days to several months.

McDonalds is blaming Fresh Express, a lettuce contractor based in Salinas, CA. The fast food chain released a public statement promising to switch contractors as quickly as possible. Meanwhile, the FDA and CDC are conducting an investigation into the infection.

Is McDonalds Liable for the Infection?

Food safety is a type of product liability and thus every person or organization in the chain of distribution could be liable. Both Fresh Express and McDonalds could be legally responsible for the Cyclospora infecting the customers. McDonalds would be held responsible if customers could prove:

  • The salad they ate was contaminated;
  • The salad came from McDonalds; and
  • The contamination made them sick.

The hardest part would be proving that it was the McDonalds salad that caused their illness. The FDA’s finding and McDonald’s admission that their food was infected would greatly help in any case against McDonalds.

Victims would not have to prove that the salad was contaminated or that the salad came from McDonalds, since the restaurant chain has already admitted that their food was carrying the parasite. In each individual case, the victim would only have to prove that they ate the salad and that it was the salad that made them sick.

McDonalds still has a defense they could use, though it wouldn’t be a very strong one. It is possible that the victim could eat bad lettuce from McDonalds, but then get become sick from a different type of bad food.

Of course, given the attention in the press, McDonalds would probably settle anyway. Many juries would it unlikely that a person could be poisoned by two kinds of bad foods in a row.  Even if it were possible, McDonalds would still be liable as a potential contributing factor.

McDonaldsIs Food Express Liable for the Infection?

If there are any lawsuits, McDonalds is content to throw Food Express under the bus to save its business. Food Express was only an independent contractor, so the type of vicarious liability that would care over from employee to employer would not be an issue. For McDonalds, their former supplier would be the perfect scapegoat in this whole mess.

As the producers of the lettuce, Food Express would bear the most examination. There would be questions as to whether the contractor properly washed the food before packaging it, especially if “fecal matter” was the cause of the outbreak.

The mere presence of fecal matter would not be alarming as long as the fecal came from fertilizer. However, if the fecal was human waste, Food Express would potentially face heavy fines for the conduct of their employees.

Food Express might be tempted to turn the tables on McDonalds. If the fast food company can blame the contractor for being too careless to wash the food, the contractor can try blaming the restaurant for being too careless to inspect the food.

This would be a dangerous game though, as many states recognize joint and several liability. Blaming McDonalds for failing to inspect the salad before selling them would mean admitting that Food Express left something behind for them to inspect. Since McDonalds has already come clean, in a manner of speaking, Food Express would be better off trying to settle as well.

 

Jason Cheung

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