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In terms of difficulty, from easiest to hardest, we divide food poisoning cases into three categories. (We have made these categories up; they are not general legal terms.):
A government agency, usually the federal Center for Disease Control, but it could be a state agency, has investigated a large number of people getting sick and has linked the illness outbreak to a specific food product and factory or producer. These are great cases, assuming there is a real injury. If a public health agency clearly links your illness to contaminated food our fee is only 25%. Otherwise it is 40%.
The victim can point to a specific defect in the food. (But this also makes the case more difficult: why did the victim eat the food if the victim can point to a defect in it.) The hospital has run lab tests showing a specific food poisoning organism such as salmonella. The timing between the food poisoning and onset of symptoms (the incubation period) matches the incubation period for the food poisoning organims shown in the lab tests. Here are some food poisoning organisms and typical periods of time between exposure and experiencing the symptoms:
- Shigella-1-2 days
- Salmonella-6-72 hours
- Botulism-typically 18-36 hours
- Norovirus-1-2 days
- Campylobacter-2-5 days
- E. Coli-typically 1 week
- Hepatitus A-15-50 days
- Listeria 3-70 days; average is 3 weeks
As you can see, the average person eats in a lot of different places during these incubation periods. This makes these cases difficult and almost impossible except for food poisoning involving organisms with the shortest incubation period.
In some states you can sue for food poisoning even if you cannot point to a specific defect in the food. One of us (Jonathan Reed) won an appeal to the Nevada Supreme Court on this point. There have been similar cases in some other states. However, from a practical point these cases are not worthwhile with rare exceptions. If the claim is that you got violently ill very soon after eating a meal at a particular restaurant, it will be hard to make a claim unless either the health department investigated and blamed the restaurant--which they typically wouldn't do unless a lot of people were reported sick after eating there--or the treating doctor somehow is able to link your illness to that meal.
Foreign Substance in Food:
We often get calls from people who discovered a bit of metal or plastic in their food, either canned food or food served in a restaurant. Unless this foreign substance required medical treatment and the treating doctor will testify that the foreign substance caused injury, these cases are almost always not worth pursuing. In other words, if you were almost seriously injured because of a hunk of glass or metal in your food, but were not injured, you do not have a case that is worth pursuing.
Occasionally we get a call from someone who has noticed metal filings in a product such as cereal and they have already eaten some of it, presumably along with the metal filings. In such a case keep the product and consult with your doctor. It is theoretically possible that a larger metal object could be ingested and show up on a CT scan and require surgery, but this is an extremely rare situation.