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September 2, 2016

ANNUAL MEETING SEMINAR Civil & Criminal Product Liability To Be Explored at Hawaii Convention

A trio of experts will discuss the issues surrounding liability when a foodborne illness surfaces at the Western Growers 91st Annual Meeting in November.

The meeting will take place at the beautiful Grand Hyatt in Kauai in Koloa on the island of Kauai, November 6-9.  The “Foodborne Illness: Criminal & Civil Liability” workshop will be held on the afternoon of Nov. 7, beginning at 2:30 p.m.  WG Board Member Stuart Woolf of Woolf Farming & Processing, Fresno, CA, will be the moderator for the all-important session.

“We’ve put together a very impressive panel to discuss both the civil and criminal ramifications of a foodborne illness,” said Jason Resnick, vice president & general counsel for Western Growers.

Well-known plaintiff attorney Bill Marler will look at civil penalties from the victim’s viewpoint, while defense attorney Sarah Brew will discuss the issue from the company’s perspective.  The criminal liability expert on this panel is Dan Jarcho, an attorney whose practice has focused on litigation involving the Food and Drug Administration and industries that FDA regulates.

Resnick said that in the vast majority of cases involving foodborne illnesses caused by fruits and vegetables, civil liability, rather than criminal liability, is at the forefront of the case.  But he noted there have been a few cases where criminal liability has been prosecuted…most notably the Colorado melon case.  In that case, the owners did spend some time in jail for their actions or lack thereof.  Resnick said it behooves all produce industry companies to understand the issues surrounding foodborne illnesses very well.  For the most part, prevention is one’s only defense.  Strict liability is assumed when the public falls ill because of contamination.  A company can mitigate the damages, he said, but in almost all cases a financial settlement is the result.  Preventive actions taken before the contamination are key to avoiding criminal liability.  The WG general counsel said there is much prosecutorial discretion involved in criminal cases with negligence or intentional wrongdoing before the event which determine the type of remedies pursued.

Following is a brief biography of the three panelists.

Sarah Brew leads Faegre Baker Daniels’ food litigation and regulatory practice.  She has a national reputation for effectively representing food processors, distributors and retailers in foodborne illness and contamination cases, commercial litigation and supply chain disputes, and consumer fraud labeling class actions.  She also counsels and provides practical risk management advice to food and dietary supplement clients on labeling and regulatory compliance matters, including the Food Safety Modernization Act, product recalls and reportable food registry events, FDA and USDA inspections and enforcement actions, and supply chain management and related contracts.

Dan Jarcho has represented companies in many legal actions involving the FDA and its regulations.  He regularly counsels clients about resolving regulatory compliance disputes with FDA that could lead to litigation, including disputes over inspections, Form 483 observations, warning letters, recalls, and import alerts.  He has represented clients in both FDA-related civil actions for seizures, injunctions and in a wide variety of criminal investigations initiated by FDA.  He also has significant experience representing plaintiffs in lawsuits challenging FDA regulatory actions under the Administrative Procedure Act.  Jarcho also has litigated the federal preemption defense in a large number of product liability lawsuits involving products regulated by FDA.

Bill Marler of Marler Clark LLP is a well-known personal injury lawyer and national expert in food borne illness litigation.  He has been a major force in food safety policy in the United States and abroad.  He has represented thousands of individuals in claims against food companies whose contaminated products have caused serious injury and death.  Marler Clark is considered the nation’s foremost law firm representing victims of foodborne illness.  He began litigating foodborne illness cases in 1993 when the infamous Jack in the Box E.coli contamination surfaced.