During my lengthy career as a trial attorney, I have litigated and tried many foodborne illness cases throughout the United States. Most of those cases have been civil matters, where a plaintiff allegedly made sick by a defective food product sues the manufacturer and seeks to recover his or her damages. Some of these cases have involved relatively minor injuries with only a few days of hospitalization, and others have involved catastrophic injuries — in some cases resulting in death. In those matters that have progressed to trial, the parties have invariably waited with baited breath as the juries deliberated and, eventually, returned their verdict.

In each of those cases, the consequences for the defendant food company, or its insurer, involved only the amount of dollars that might have to be paid. If the verdict was a defense verdict, the number would be zero. If the verdict were a plaintiff verdict, the jury would decide the amount of compensation.

Imagine, however, if the consequences were far more draconian — such as life in prison. In civil matters, only the defendant’s dollars are at stake. In criminal matters, the defendants’ lives are also on the line.

Increasingly, when foodborne illness outbreaks occur and consumers become sick, the federal regulators and the Department of Justice (“DOJ”) are looking for evidence of potential criminal wrongdoing. As I have often paraphrased the standard, criminal liability can attach if (1) a food safety professional was aware of a circumstance that could lead to food product contamination and make someone sick, (2) that person was in a position to eliminate the condition, and (3) he or she failed to do so.

In recent years, my colleagues and I have had the pleasure of conducting numerous mock trials for food company executives and large food industry audiences. The scenarios usually involve the trial of a fictional food safety executive of a company that unknowingly produced food which became contaminated, unknowingly caused an outbreak, and unknowingly made people sick. The scenarios are designed to mimic what might be occurring, on any given day, in any food company in the United States. Following arguments from the prosecution and defense, the audience then gets to serve as “jurors,” and are asked to deliberate and vote.

These mock trials are incredibly eye-opening and informative. Surprisingly, when the audience is composed of food safety professionals, after seeing the evidence and hearing the arguments from both sides, about 60% of the "jurors" vote to convict. One can only imagine how a jury of non-food safety-trained, lay persons would likely vote.

These exercises teach food safety professionals and food company executives what they should watch out for in their everyday decision-making, and how their seemingly routine food safety decisions today could be used against them by DOJ tomorrow. Seeing how the evidence is presented and weighed by the jurors ultimately allows the participants to leave these exercises more informed, better suited to make appropriate food safety decisions, and better prepared to protect their company and their brand.

You can do the same thing in your company as well. Whenever a difficult (or routine) food safety question arises, always ask yourself, “What would 12 jurors think?” The answer to that question will almost invariably be obvious and, if followed, will ensure you are never on the uncomfortable end of a closing argument from DOJ.

Never mock a mock trial

Join for free* to continue reading.