A view from the jury box

November 4, 2021

Foodborne Illness Outbreak Mock Criminal Trial at Annual Meeting

Food Industry Counsel LLC attorney and founder Shawn Stevens and attorney Joel Chappelle provided a view inside a criminal trial for the Director of Food Safety for a hypothetical food company.  The defendant was charged with 26 misdemeanor counts of violating the Food Drug and Cosmetic Act arising from an outbreak of Listeria monocytogenes and the subsequent death of a 12-year-old girl.  If convicted, the director faced up to a year in prison and a $250,000 fine for each of the 26 counts.

The prosecutor provided the history of the company’s environmental testing, which had resulted in several positive samples over three years. The FDA investigation found several environmental positive samples with a WGS match to the outbreak strain. The defense provided a much different picture. Highlighting the distinguished 15-year career of the defendant, improvements she had made at the plant, and the doubling of environmental samples in her tenure, the attorney argued that there was no way for the defendant to know that the positives would lead to an outbreak and death in the facility.

Audience members were charged as the jury and delivered a not guilty verdict based on the evidence presented. According to Stevens, victim testimony and other compelling evidence would have been presented to the jury if this had been an actual trial. This exercise illustrates that food producers can be held criminally liable for the lack of actions in cases resulting in illness and death. Attendees learned about the scope of potential criminal exposure when products are associated with an outbreak,  the different types of evidence and arguments federal prosecutors will use to convict food company executives and strategies to protect individuals and companies from criminal exposure.