Client Update: 17 December 2021
LISTERIOSIS CLASS ACTION CLASS MEMBER UPDATE
Compliments of the season to all our clients,
As we reach the end of the year we want to once again thank you for your co-operation and patience. A class action of this nature and magnitude is no small feat. There are many moving parts in this matter, some of which are not within our control, such as awaiting Court outcomes. Despite some delays, our dedicated team together with yourselves, our valued clients, have accomplished a great deal this year. We have been approached by 144 new claimants; received volumes of medical records and conducted hundreds of narrative interviews in order to be able to best tell your story and build our case.
On 5 November 2021, the Supreme Court of Appeal (“SCA”), the second highest Court in South Africa, heard the appeals regarding the subpoenas that Tiger Brands issued to the NHLS (National Health Laboratory Services), two laboratories and various meat vendors involved in the manufacturing and production of meat products across the country, after the High Court held that the (reduced) subpoenas were to be enforced. These subpoenas seek to obtain information relating to the presence of Listeria monocytogenes in facilities and products over the outbreak period (from October 2016 to September 2018). Tiger Brands submitted that the key issue at the heart of the subpoenas is whether it can challenge the findings of the NICD (National Institute for Communicable Diseases) that Tiger Brands was the sole source of the ST6 outbreak. The subpoenaed parties do not wish to comply believing the requests are overbroad or irrelevant.
Members of our team joined the hearing remotely and listened to the arguments advanced by all parties as to why this information should or should not be released to Tiger Brands. Five judges presided over the matter and many of them asked probing questions to both sides relating to the relevance of the information and how it will affect our class action. Judgment was reserved, and we hope that it will be handed down in early 2022.
This SCA judgment will have a significant bearing on our litigation strategy. In the interim, we continue to forge forward and are making significant headway with other aspects of the litigation process, including an intensive engagement with the discovery documentation provided by Tiger Brands over the past two years. We will update you on the decision of the SCA and its effect on the class action when it is provided to us.
Once again, we assure you that we are doing our best to move the matter forward as swiftly as possible and trial preparations are well under way.
Class Member Participation
We are in the process of building the damages claims of class members; the determination and quantification of the injury or harm suffered by the various class members due to the listeriosis outbreak. In order to hold Tiger Brands liable for these damages we need to clearly establish causation, meaning that we have to show that the suffering experienced by the claimants was as a result of consuming Enterprise polony. Very few claimants have receipts or leftover product that they consumed Enterprise polony. Rather, we require an affidavit on oath from each claimant as to whether Enterprise polony was bought or eaten, as well as evidence of more likely than not contracting listeriosis, determined from medical records.
We then have to prove the harm that was suffered. We achieve this through a combination of expert medical assessments and actuarial calculations. We may contact you to provide us with further information relating to how claimants’ income, careers and cost of living have been affected. We have identified certain claimants for initial assessments with the medical experts. Our team will be in contact with these clients over the coming weeks.
This class action depends largely on the quality of information we have available. All class members would have submitted or will be in the process of submitting your on-boarding documents, including copies of your identity documents; power of attorneys and medical release forms, as well as various affidavits. These documents are vital as they are used to request the relevant medical records and test results that serve as evidence of causation. We thank you for your on-going co-operation in providing these documents and engaging with our paralegals for lengthy interviews. All of these aspects put together substantiate the claims we have against Tiger Brands and move us closer to our common goal.
We once again remind you of the following –
1. Information regarding medical care:
Please ensure that you have provided our team with the following information which is required to request medical records:
- the correct name of the hospital or clinic that you visited over the outbreak period;
- admission dates ;
- discharge dates; and
- patient number
We understand that this information may take you time to access as the outbreak occurred some time ago, however, medical records are essential to proving a claim and thus this information is vital to continuing your claim.
2. Affidavits relating to consumption of Enterprise polony
Thank you to all those claimants who have signed and submitted these consumption affidavits. If you have received an affidavit, but not yet signed it, please try to attend to it before a commissioner of oaths and submit it to us in January 2022.
There are a number of claimants who have not yet received affidavits relating to consumption of the product. You will receive one in the new year. Please take time to read through the affidavit and verify the correctness of the information, before signing each page before a commission of oaths. Should you have any queries please do not hesitate to get in touch with us.
3. Loss of income or earning capacity
Depending on the severity of your listeriosis infection, you may have a claim for loss of income or earning capacity. In order to calculate your claim, we require the following documentation:
- An indication of what your job or profession was before you (or your loved one) contracted listeriosis. If you have changed jobs since then please let us know what your job or profession is now. If you are or were unemployed, please let us know of any training you have received previously, and what your history of employment is.
- Documentation showing proof of income, including salary/pay slips, bank statements, an affidavit confirming your income, or any other proof you may have confirming your income.
- Records of your employment history as far back as possible. Your employer may help you in obtaining this. Should you need us to send them a letter please let us know.
- Copies of any qualifications you may have obtained in your life, including matric certificate, school reports, and any other training you may have completed.
- If you are claiming on behalf of a child, copies of qualifications obtained by the child’s parents and siblings.
- If you are claiming on behalf of another adult, copies of both the injured and your own documentation as listed above.
4. Narrative interviews:
We require every claimant to do a narrative on how you (or your loved one) contracted listeriosis, what was experienced during the illness and how life has changed since. The more accurate the information we have, the more compelling the story.
These interviews are conducted by our team after we have had an opportunity to review your medical records, to determine whether there is enough evidence to prove a claimant is a class member. Our team will contact you for an interview once your medical records are received and vetted. We will not be able to proceed with your claim, until we have consulted with you and obtained the history of your illness.
Our offices will be closed from 17 December 2021 and will re-open on 3 January 2022. We will however be available during this period by WhatsApp, or by sending a ‘please call me’ to 082 044 0875. We will return your call as soon as possible.
A skeleton team will continue working remotely during this time and will be in contact with those clients undergoing medical assessments. This process is extremely important, and your co-operation will be truly appreciated.
Kindly contact us if you have changed any contact details or address, so that we may update our records accordingly. It is very important to maintain an open line of communication.
We wish you and your loved ones a safe and peaceful festive season.
RSI and LHL