Listeria Class Action

Client Update: 17 February 2022

LISTERIOSIS CLASS ACTION CLASS MEMBER UPDATE

Dear Listeriosis Class Action Claimants,

Litigation Update

On 4 February 2022, the Supreme Court of Appeal (“SCA”), handed down judgment in respect of the appeals regarding the subpoenas that Tiger Brands issued to the NHLS (National Health Laboratory Services), two laboratories and various meat suppliers to Tiger Brands. These subpoenas sought to obtain information relating to the presence of Listeria monocytogenes in facilities and products over the outbreak period (from October 2016 to September 2018). Initially, the High Court held that the subpoenas were relevant to the class action should therefore be enforced – the High Court found that Tiger Brands was entitled to this information). The parties against whom the subpoenas were issued however appealed the decision of the High Court in the SCA last November. The SCA was then tasked to consider whether the documents in the subpoenas were relevant to the class action with reference to the class plaintiffs’ pleadings and the High Court’s certification order.

During these proceedings Tiger Brands submitted that the subpoenas were relevant because the class action focuses on establishing whether Tiger Brands was the sole cause of the listeriosis outbreak. They reasoned that if Tiger Brands was the sole source, then it is responsible for the harm suffered by all persons who contracted listeriosis over the outbreak period.

In determining whether Tiger Brands was entitled to the information sought through these subpoenas, the SCA considered the two stages of the class action. The first stage concerns a declaration that Tiger Brands is liable to the classes. The second stage deals with establishing causation in relation to individual claimants. The SCA laid out the second stage as a process whereby individual class members would need to prove the causal link between the harm caused to them and the eating of contaminated food products from Tiger Brands’ Polokwane facility, and then prove the damages suffered by each individual class member as a result of the consumption of the contaminated Tiger Brands products.

The SCA emphasised that in order for a claimant to be part of the class action, the cause of harm that the claimant suffered must have been the consumption of contaminated food products from Tiger Brands’ facility. The class action only pertains to damages resulting from consuming products manufactured by Tiger Brands. Without this causal link the party would not be a class member. It is therefore irrelevant for purposes of the class action, whether persons may have been harmed by the consumption of products manufactured by a source other than Tiger Brands.

The SCA found that Tiger Brands’ ‘sole source’ argument has no relevance in the class action, and described its subpoenas as entirely speculative:

“[Tiger Brands] seems to hope that in the midst of all the test results it requires, it would find a basis on which to pin co-liability on another party.”

As a result, the subpoenas that Tiger Brands sought to enforce were found not relevant and were set aside, save for a limited part of a subpoena relating to industry norms and standards.

In considering the subpoena against the NICD (National Institute of Communicable Disease), the SCA held that the NICD’s report should be accepted until reviewed and set aside, as Tiger Brands has not challenged the report itself in a competent court.

We welcome the SCA judgment as a victory for the victims of the class action, as it brings resolution for the way forward in the main trial. Tiger Brands has until 25 February 2022 to notify the Court of any intention to appeal. Failing an appeal, the main trial can now proceed, to determine Tiger Brands’ liability to the four classes of claimants.

The full SCA judgment can be read here.

Class Member Participation

We continue to build the damages claims of class members in preparation for trial. Now that the interlocutory applications have been dismissed this process is increasingly important.

In order to claim damages from Tiger Brands, we must prove that every claimant’s harm is linked to Tiger Brands’ product. To do this, we require an affidavit from each claimant as to whether Enterprise products were bought or eaten, as well as evidence of each claimant’s listeriosis, determined from medical records.

To prove what harm was suffered by each claimant, we need to produce 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.

This class action depends largely on the quality of information we have available from all class action claimants. Please ensure on-boarding documents, including clear copies of your identity documents; power of attorneys and medical release forms, as well as various affidavits are submitted. These documents are vital as they are used to request the relevant medical records and test results that serve as evidence of causation.

Thank you for your co-operation in providing these documents and engaging with our paralegals for lengthy interviews. Together, these documents and interviews build a strong case against Tiger Brands and move us closer to resolution.

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 and/or clinic that you visited over the outbreak period;
   • if you visited more than one hospital at that time, please provide all details for both

     hospitals;

   • 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 establish causation and thus this information is vital to proving your claim.

2. Affidavits relating to consumption of Enterprise polony (“consumption affidavits”)
   
   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 sign it before a commissioner of oaths and send it to us as soon as possible. If you do not have access to fax or email we will arrange for our outreach team or a courier to collect it from you.
   
   There are a number of claimants who have not yet received affidavits relating to consumption of the product. You will receive one within the next few months. 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:
   
   1. • 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:
   
   Every claimant is required 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, in order to determine whether there is enough evidence to prove that 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.
   

Contact Us

We are available at any time to consult with you. Send us a message via WhatsApp or send a ‘please call me’ to 082 044 0875. Alternatively email the paralegal in contact with you, or call our offices on 010 009 6925. We will return your call as soon as possible.

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 thank you for your patience and co-operation throughout this unavoidably lengthy process and we assure you that we are doing our best to move the matter forward.

Yours faithfully,

RSI and LHL

Class Attorneys