When you've suffered what appears to be food poisoning, you might think—perhaps with good reason—that a certain restaurant, manufacturer, or grocery store is to blame. It's one thing to think that, but actually filing and winning a food poisoning lawsuit can be an uphill battle.
Among other things, you must show that the food you ate was contaminated and that the contamination made you sick. Let's review some of the important steps you'll need to take to prove your food poisoning case.
In order to make a successful food poisoning or foodborne illness claim, the first thing you must do is pinpoint the particular food (or drink) that made you sick. Could it have been the shrimp cocktail appetizer, the romaine in the main-dish salad, or the raw eggs that were whipped into your dessert?
Was it something you ate at home, or a meal you had at a restaurant? If there was a delay in the onset of your symptoms, how many hours passed? Did you eat or drink anything else before your symptoms first appeared?
Be sure to take careful notes as soon as you begin to suspect a case of food poisoning. The more details you can record—including time of day and symptoms—the more opportunity you'll give a medical expert to help bolster your case.
What's more, careful preparation of evidence looks much more convincing to an insurance adjuster or in court than broad statements such as, "It was gross, I felt sick for hours. I'll spare you the details, which I don't really remember now anyway." If you take notes as your illness and recovery are happening, you can use those notes to help refresh your recollection when you testify later in the case.
Identifying the food culprit will be easier, of course, if many other people were also made ill after eating the same thing. If you had dinner with friends, check with them to see who ate the same dishes as you did and whether they also experienced symptoms. Make a record of your conversations with them. Better yet, ask them to email you as many details as they're comfortable sharing.
If you have leftovers of the food you suspect made you ill, speak to your local health department about having it tested for illness-causing pathogens. If your health department can't assist, see if your doctor knows of any commercial testing lab in your area that can do the testing.
What if you don't have leftovers you can get tested? It isn't necessarily fatal to your food poisoning claim, but it will make your case much harder to prove. Without that "smoking gun" evidence, it's easier for the restaurant, grocery store, or whoever you accuse of supplying tainted food to argue that they weren't the cause of your illness.
It isn't enough to show that some food you ate was tainted with an illness-causing pathogen. You'll also need to prove that your illness was, in fact, caused by the contaminated food. Small amounts of contamination found in food might not make you sick. And of course, you could have picked up the bacteria or toxin from some other source.
One way to establish this critical link is to visit your doctor and have urine, stool, or blood samples scientifically tested for food poisoning. If you can show that your test sample contained the same disease-causing microbes that were found in the contaminated food you ate, you'll significantly strengthen your claim.
If your doctor diagnoses food poisoning, be sure you get a copy of your medical records to back up your claim. Asking your doctor for a letter diagnosing food poisoning will also help.
You aren't necessarily alone in this process. For starters, proving the source of your illness will be much easier if a government health agency (like a state or county health department) steps in and traces an outbreak of food poisoning to a particular source.
Contact your local health department to check on recent outbreaks, or any food-safety issues associated with the restaurant or other food supplier in question. In addition, be sure to check the federal food safety website for information about food recalls and foodborne illness outbreaks.
Also, once you hire an attorney and file a personal injury lawsuit, your lawyer can start the process called "discovery." During discovery, the lawyer can get documents and information to help prove your claim. Your lawyer can also take the depositions of witnesses who might have knowledge of, or be responsible for, the food you were served or sold.
Who could be legally responsible for your foodborne illness claim? In other words, against whom should you bring your food poisoning claim? As a general rule in product liability cases like these, you'll want to consider all parties involved in the "chain of distribution" of the food that made you sick.
The chain of distribution is the path that the food takes from the manufacturer to distributors to retailers who sell the food to their customers. The chain of distribution in a food poisoning case is typically made up of:
In a food poisoning case, you'll need to trace the contamination back to its source. Anyone involved in the chain of distribution of a food product at or after the point of contamination might also be found legally liable.
(Learn more about who to sue in a product liability case.)
You can fully expect that whoever you bring your claim against will be working hard to argue that the cause of your illness was something else. The last thing a restaurant, grocery chain, or other food supplier wants is the negative publicity that can accompany a foodborne illness outbreak.
Perhaps it was a case of stomach flu, a bacterial infection you picked up from your children, pets, or public transportation, or some other cause. The lawyers who defend food poisoning cases have a ready arsenal of potential arguments to point the finger of blame in lots of different directions.
If it looks like you have a viable food poisoning claim, an attorney will have the expertise (and most likely, a talented investigator or two) to properly analyze the chain of distribution, identify appropriate defendants, and gather the facts needed to give you the best chance of success.
Here's how to find an experienced personal injury lawyer in your area who's right for you and your case.
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