Alternative Liability OK’d for Use in Suits
By Shannon P Duffy
US Courthouse Correspondent
In litigation over a deadly food-poisoning outbreak traced to two turkey processing
companies, a federal judge is breaking new legal ground by holding that the victims may use the
alternative liability doctrine to pursue claims against both companies without having to prove
which one of the two caused their injuries.
U.S. District Judge Timothy J. Savage issued the ruling in four consolidated cases against
Pilgrim’s Pride Corp. And jack Lambersky Poultry Co., whose ready-to-eat turkey products were
deemed to be the only possible causes of the 2002 listeriosis out-break concentrated in the
northeast United States.
The ruling in Drayton v. Pilgrim’s Pride Corp., et al., is a victory for plaintiffs lawyers
who argued that victims were finding it impossible to pinpoint the exact product they had
ingested because the incubation period for listeriosis “is typically in the range of weeks or even
months, rather than hours or days.”
The four suits all stem from a multi-state outbreak of listeriosis between July and October
2002 that affected 54 people and caused eight deaths and three fetal deaths in pregnant women.
Listeriosis has been shown to affect primarily pregnant women, newborns and adults with
weakened immune systems.
Attorney Shanon K. Carson of Berger & Montague took the lead in arguing the
alternative liability theory for all four plaintiffs. The other three plaintiffs are represented by
attorneys Brandon Swartz of David F. Itkoff & Associates, Ruben Honik and Stephan Matanovic
of Golomb & Honik, and Agostino Cammisa of Kogan, Trichon & Wertheimer.
According to court papers, officials from the Center for Disease Control conducted an
epidemiological investigation and concluded that JLP’s Camden plant was the “likely” source of
the outbreak. The report also said it was “possible” that PPC’s plant in Franconia, PA., was
“also involved” because the specific strain of listeriosis seen in all of the victims was present in
both plants.
Now Savage has ruled that a jury must decide if both defendants may be held liable under
the alternative liability doctrine because “molecular subtyping” has shown that both companies
may have sold turkey products infected with the specific strain seen in all victims.
“There is ample evidence, if accepted by the jury, that would establish that each plaintiff
had the [specific] strain of listeriosis, the defendants produced products containing the same
strain that were consumed by the plaintiffs, the plaintiffs injuries were caused by the strain of
listeriosis, and no other manufacturer’s turkey products available to the plaintiffs were tainted,”
Savage wrote.
“Because the defendants acted in substantially the same manner at about the same time
and are the only potential sources of the strain which caused the plaintiffs’ injuries, the
alternative liability theory will apply, relieving the plaintiffs of the requirement to show which of
the two defendants’ products caused their injuries,” Savage wrote.
The result, Savage said, is that the burden now shifts to the defendants “to prove that the
other’s product caused the injuries.”
Lawyers for both manufacturer’s had moved for summary judgment dismissal of the
suits, arguing that none of the plaintiffs can pinpoint which of the two manufacturers had caused
his or her illness.
But Savage concluded that no such requirement exists because the alternative liability
theory creates “an exception to the general causation rule.”
The evidence, Savage said, shows that the listeriosis found in both plants “had the same
bacteriological and molecular characteristics as the strain implicated in the 2002 outbreak.”
As a result, Savage said, “the plaintiffs have created a jury issue that each victim had
consumed … turkey products manufactured by both defendants during the outbreak period.”
The Pennsylvania courts, Savage said have “rejected an absolute rule that precludes a
plaintiff from presenting evidence tending to prove the identity of the manufacturer of the injury-
causing product when the product is unavailable.”
In such a case, Savage said, Pennsylvania law allows the plaintiff to prove product
identification by circumstantial evidence.
“Where the identification can be proven without the specific product, a plaintiff can
pursue her claim despite the blameless loss or destruction of the product prior to suit,” Savage
wrote.
Juries must decide all four cases, Savage found, because the plaintiffs have sufficient
circumstantial evidence that they or their decedents purchased both companies’ products within
the outbreak period.
“The issue is not whether the plaintiff in each case can identify the specific defendant’s
product that caused her injury. The issue, in each of these cases, is whether the plaintiff can
identify having ingested tainted product, leaving open the question of which defendant’s product,
if not both, caused the injury.” Savage wrote.
Savage conceded that none of the plaintiffs can prove – and medical science may never be
able to show to a reasonable certainty – which of the two companies’ product actually caused
each plaintiff’s infection.
“However, this inability is not fatal to the plaintiffs’ claims and does not absolve the
defendants from liability for their tortious conduct,” Savage wrote.
Under the alternative liability theory, Savage said, the burden shifts to the defendants to
show which one actually caused the injury – effectively requiring the defendants to prove their
lack of responsibility.
“If they are unable to identify the one causing the harm, both can be found liable as joint
tortfeasors,” Savage wrote.
The Pennsylvania Supreme Court has adopted the alternative liability theory, as defined
in Section 433B(3) of the Restatement of Torts.
Under the Restatement, alternative liability requires not only that each defendant’s
tortious conduct be simultaneous and identical, but that all potential tortfeasors be joined as
defendants.
Savage found that, because the doctrine departs from standard negligence principles, it
applies “only when each defendant’s conduct was substantially simultaneous and identical, and
all potential defendants have been joined.”
Defense lawyers argued that, even though Pennsylvania recognizes the alternative
liability doctrine, the courts have been reluctant to apply it outside the context of cases involving
“hurled projectiles” and have not extended its application to products liability cases.
Savage agreed that no Pennsylvania appellate court has ever addressed the precise issues
of whether the alternative liability theory is inapplicable to products liability cases.
But Savage predicted that the Pennsylvania courts wouldn’t hesitate to extend the
doctrine.
“The rationale for the doctrine is equally applicable to such cases,” Savage wrote.
And the doctrine applied in all four cases, Savage said, because each of the plaintiffs has
evidence that both manufacturers “engaged in tortious conduct by negligently permitting their
products or plants to become infected with [listeriosis] during the same period of time. Tainted
products of both were on the market at the same time.”
Savage rejected the argument that the theory fails because the two defendants operated
independent production facilities.
“Each did not have to know that the other was simultaneously selling negligently
produced product to render their conduct substantially similar,” Savage wrote.
The only requirements, Savage said, are that the conduct be “simultaneous” and “of
substantially the same character,” or creating the same risk.
“Both actors’ conduct need not be shown to have actually caused the harm. To impose
such a requirement would subvert the purpose of the rule shifting the burden to the defendants,”
Savage wrote.
In a statement released on Friday, PPC spokesman Ray Atkinson said Savage’s ruling “is
essentially moot from our standpoint” because the company has already reach out-of-court
settlements with all the plaintiffs.
“We did this in order to bring the cases to a close without incurring the costs and time
associated with a trial and possible appeal,” Atkinson said.
But Atkinson stressed that Savage “did not find Pilgrim’s Pride to be negligent in any
way, nor did he find that {PPC’s} Wampler [brand] products caused the plaintiffs’ injuries.
Moreover, the court did not find that the plaintiffs even consumed a Wampler turkey deli
product.”
Atkinson also stressed that the CEC never found any Wampler product to be
contaminated with the outbreak strain.
“As we have said from the outset of litigation, our turkey deli products were safe to eat
and did not cause injuries to any of the individuals involved,” Atkinson said.
JLP’s lawyers could not be reached for comment on the ruling.
