Involved in a Food Safety Dispute? Time to Call an Expert Witness

By Andrea Tolu 

When food quality and safety disputes happen, the parties involved may not always agree on who’s right or wrong.  

A typical example is a food manufacturer that discovers a yeast contamination in one of their ingredients. Although not pathogenic, this spoilage microorganism gives the product an unpalatable look, causing several complaints from consumers and retailers, and damage to the brand. The supplier, however, claims that, based on their contract, they have no obligation to ensure the ingredient is free from that specific contamination.

Expert witnesses may not come cheap, but what food manufacturers cannot afford is to act when it’s too late. 

Before either side decides to take the matter to court, it’s best to call an expert witness.

“What an expert witness does is provide independent opinion on evidence that’s been presented as part of a dispute or a lawsuit,” says Peter Wareing, a food safety consultant based in the UK. “Typically, they’re hired by a solicitor when one side has sued or is going to sue another.”

After carrying out an investigation, the expert witness will produce a report that can have a great influence on the outcome of the dispute. In the example above, which was a real case, Wareing who was an expert witness for the supplier, never ended up in court: “Although the contamination of the ingredient was confirmed, it was also clear that the poor environmental control practices at the manufacturer’s plant exacerbated the problem. This discovery made the whole case less clear-cut and convinced the two companies to settle, rather than going forward with the lawsuit,” says Wareing.

Chasing the document trail

The investigation by an expert witness is done mainly on the business’ paper and electronic documents, such as the HACCP plan, daily checklists, processes and environmental assessments, or testing results. Employees might also be interviewed, depending on the case.

Most of the time, the goal is to verify whether the contamination was caused by lack of compliance to HACCP: “If the HACCP plan requires them to do something, but the records show that they’re not doing it, that will put a doubt in my mind as to whether their processes are robust enough to prevent that contamination that is the object of the dispute. It’s like being a forensic detective,” says Wareing.

Independent by Nature

“Regardless of which side is paying their wages, the attitude of an expert witness must be impartial, independent and thorough, and their report must be neutral and based on actual evidence,” says Wareing.

Indeed, it’s their unbiased opinion that gives expert witnesses authority in the resolution of a dispute. Unfortunately, the obligation of being neutral is not always fully understood by food manufacturers, who may hire an expert witness thinking that they operate like lawyers: “While a lawyer’s job is to take evidence that’s complimentary to their client and use it against the counterpart, expert witnesses are responsible towards the court and are liable to a fine or even imprisonment if they knowingly produce a misleading report,” says Wareing, who recalls at least one case where a company that had hired him complained that the report was not in their favor.

The cost of hiring an expert witness might play a role in this misconception: “In the US, the average hourly rate is $350 an hour, plus or minus $100,” says Thomas J. Montville, Ph.D., Distinguished Professor of Food Science at the Department of Food Science at Rutgers University. “If it’s less than $250, I would question the expert’s qualifications and experience, while if it’s more than $450, it’s probably too high.”

The importance of acting early

In fact, the independence of expert witnesses is beneficial to everyone involved, especially when their report shows that the best choice is to aim for an out-of-court settlement, rather than incurring additional legal costs. For this reason, expert witnesses should be involved as early as possible.

A case involving a manufacturer of nut bars that hired Montville as an expert witness is a textbook example of what not to do: “The company had been sued by a person who, after consuming one of their nut bars contaminated with mold, went into anaphylactic shock and suffered from brain damage. Upon investigation, it turned out that the manufacturer had received more than four hundred complaints about mold in the product but took no action. They claimed that none of these were confirmed reports and that they had produced millions of nut bars without any issue. Although they expected me to help them win, it was my unfortunate role to tell them that they had no defense, and they should try to settle the case.”

Expert witnesses may not come cheap, but what food manufacturers cannot afford is to act when it’s too late: “As soon as there’s any hint of trouble, whether it’s a positive test result for a food that has left your control, a lawsuit, or an outbreak, call an attorney who’s specialized in food manufacturing and food safety. They will be able to choose the right expert witness for the case,” says Montville. “The earlier you get one involved, the better off you’ll be.”

About the Author:

Andrea Tolu is a freelance writer and ghostwriter who works with companies and thought leaders in the food industry. Other than food safety, he writes regularly about food regulations, ingredients, and alternative proteins.