Litigation Defenders

It happens like clockwork. Another recall notice. Another multistate outbreak traced to leafy greens. Another potential lawsuit.

This time, the culprit is not the bacteria risk managers and defense attorneys are used to seeing. It is a parasite, Cyclospora cayetanensis, the organism behind cyclosporiasis, and it has driven a fast-moving, multistate outbreak linked to shredded iceberg lettuce traversing restaurant and food-service channels across several Midwestern states this summer.

The numbers are already significant. Public health officials have confirmed nearly 2,000 illnesses tied to the outbreak, and the true count is likely higher, since many people who fall sick recover without seeking medical care or testing. Illness onset dates span roughly two months, and it can take officials up to six weeks to confirm whether a given illness belongs to the broader cluster.

A supplier recall of iceberg lettuce followed the initial link. Then came a twist: a product sample that tested positive for the parasite was later reclassified as a false positive on re-review, leaving investigators without a single confirmed positive product sample even as the case count kept climbing. Leafy greens rarely make headlines for a parasite. This outbreak is different, and it previews the kind of contamination event business owners and risk managers should expect to see again.

For litigation defenders, the question is not whether another outbreak will generate claims. It will. The question is who faces exposure, under what theories, and how to position the defense before plaintiffs’ counsel frames the narrative.

Every Link in the Chain Is a Suspect

A head of lettuce travels a long, fragmented road from soil to plate, and almost every stop along the way is a place contamination could have climbed aboard.

• Growers are suspect number one — irrigation water, soil amendments and field sanitation all matter, especially since Cyclospora spreads through water or produce contaminated with feces.
• Processors and packers are suspect number two— washing, cutting and packaging and often commingling lots from dozens of growers into one batch, so a single bad grower can contaminate an entire day’s run.
• Cold-chain handlers and distributors are suspect number three — moving product under tight time and temperature windows, where a broken cold chain will not introduce a pathogen but will happily let one multiply.
• Lastly, grocery retailers and restaurants are suspect number four — the last to touch the product before it reaches a dinner table.

Food-service channels are often the most visible suspect of all, since one bad menu item can put a single name in every headline. But visibility is not the same as guilt, and plaintiffs’ counsel knows it. They will name every defendant the facts support, and sometimes a few more, because breadth pays in mass-tort food litigation.

A Salad Is Still a Product, No Matter How You Dress It Up

Contaminated food is still a product for liability purposes, whatever label a complaint uses. Manufacturing defect is the default theory — the lot deviated from its intended safe condition.

Design-defect claims can target washing or testing protocols under Prentis v. Yale Manufacturing Co., 421 Mich. 670 (1984), which asks whether the product was reasonably safe when it left the defendant’s control, and MCL 600.2946, which lets compliance with governmental safety standards support a presumption of non-defect.

Failure-to-warn theories round out the picture, aimed at handling instructions or undisclosed sourcing information.

Broad Statute, Narrow Seller Exposure

Michigan defines “product liability action” broadly under MCL 600.2945, covering any injury “caused by or resulting from” the “production” of a product, and production expressly includes growing, processing, packaging, selling and warning.

A complaint recast as ordinary negligence against a store employee does not escape the statute; courts look at the substance of the claim, not the label. For grocery retailers and restaurants that did not grow, process or pack the product, MCL 600.2947(6) remains a powerful early defense — a non-manufacturing seller is not liable absent proof of a failure of reasonable care or a breached express warranty that proximately caused the injury.

That shield applies whether the contamination is bacterial or parasitic.

The Case of the Vanishing Positive Test

The U.S. Food & Drug Administration’s food-safety framework, including the Food Safety Modernization Act’s traceability requirements for high-risk produce, cuts both ways.

Compliance with governmental standards supports the statutory presumption of non-defect, but the same lot codes, audits and recall communications that establish compliance are discoverable by plaintiffs and co-defendants alike. Causation is where these claims often fail. A plaintiff must trace a specific illness to a specific lot, batch or source, and widely distributed produce moving through multiple growers and processors makes that difficult.

Cyclospora makes for a good plot twist. It is hard to detect on food samples, testing can drag on for weeks, and a preliminary positive result in the current outbreak was walked back to a false positive on re-review.

That left investigators with a case count in the thousands and, at least for now, no confirmed positive product sample at all. Every positive test should be treated as a lead, not a verdict, until the methodology and chain of custody are vetted.

Contaminated produce is perishable, and it is usually consumed, discarded or spoiled before a plaintiff is even diagnosed. Litigation holds should go out immediately, covering purchase receipts, lot and batch codes, recall notices, distribution and cold-chain records, supplier contracts and audits, and medical records tied to the specific pathogen strain.

Follow the Paper for Contractual Risk Allocation

Supply-chain contracts among growers, processors, distributors and retailers often contain indemnification, tender and additional-insured provisions that reallocate defense costs. Identify them early, read them and tender the defense promptly. These mechanisms will not eliminate exposure, but they can dramatically change who bears the cost.

The Defense Playbook

No mystery gets solved by accident. Here is the six-step playbook for turning “someone must be liable” into “prove it.”

1. Identify every link in the supply chain and each party’s role. Map the product’s journey from field to fork. Determine who grew it, who processed it, who shipped it, who sold it and who served it.
2. Invoke MCL 600.2947(6)’s innocent-seller shield early for retailers and restaurants that did not grow or process the product. Move for summary disposition before discovery costs mount.
3. Preserve lot, batch, traceability and recall records immediately. Issue litigation holds on day one. The perishability of food evidence makes speed essential.
4. Scrutinize the gravamen of the complaint regardless of how it is pled. If the claim traces to a contaminated product, it is a product liability action—and the statutory framework applies.
5. Retain food-safety, epidemiology and parasitology experts early to challenge causation. Demand specificity on testing methodology and chain of custody, especially where a preliminary positive result has been contested or reclassified. Make the plaintiff prove which product, from which source, caused which illness.
6. Review supply-chain contracts for indemnity, tender and insurance allocation. Tender early. Preserve coverage arguments. Let the contracts do the work they were designed to do.

Leafy-green contamination outbreaks are not new. What is new, this time, is the culprit: a parasite, not the bacteria litigation defenders are used to seeing, with a case count in the thousands and a positive test result that turned out to be a red herring.

The next recall is not a question of if. It is a question of when, and increasingly, whodunit. For litigation defenders, the best time to solve the case is before the headlines break.