261: Stay Protected: Legal Necessities for Allergy Safety in Food Service

Tracy Stuckrath [00:00:02]:
Hey, everyone, and welcome to another episode of Eating at a Meeting. And this is a special episode because this week is it is food allergy awareness week. Sorry. And, and I'm so excited to bring you a different conversation every single day this week, Monday through Thursday, about different topics that go that are related to food allergy awareness and, and safety. So my guest today is Ryan Gamballa. He is an attorney with Dooly Gamballa McLaughlin Pecora out of Cleveland, Ohio. And he he's the chair of the firm's food and beverage industry practice group, where he regularly consults on issues involving the legal liabilities of food allergens and represents those in the food service industry.

Ryan Gembala [00:00:53]:
Hello, Ryan. Hey, Tracy. Thank you. Thank you for the opportunity to be here with you today.

Tracy Stuckrath [00:00:57]:
Oh, you're welcome. And and, everybody, I met Ryan last that was last month. Right? At the fair and menu trinfo food allergy safety summit. And I just thought what he talked about was really, really important for us to discuss. I've had attorneys talk on the side of, you know, people with food allergies. But I think, Ryan, your perspective is really, really important for members of the hospitality industry. I think planners as well as the hoteliers and restaurateurs, to understand. So, can you, start by sharing a little bit of your background, and what exactly does the the food and beverage industry practice group do?

Ryan Gembala [00:01:37]:
Sure. So that's a great question. Thanks, Tracy. So I've been an attorney for 19 years, and my practice has evolved over the years to where it is with food safety right now and particularly, food allergens. So I I kinda started my practice focused, primarily on agriculture industry. From there, I moved to agriculture and produce. From produce, went to food manufacturing, so it was agriculture, produce, and manufacturing, and then found my way to the hospitality and food service side. And so that's primarily where I sit now.

Ryan Gembala [00:02:13]:
I still do a little bit of all of that, but, as the food safety modernization act came into vogue and some other things over the last decade or so, my practice is really focused on hospitality side, food safety, and allergen controls. And so what's a little bit unique about my perspective, Tracy, like you say, is that I don't, I don't focus as much on, individual advocacy or Americans with Disabilities Act, advocacy or legislative advocacy. My practice is representing, restaurants and hospitality industry folks, hotels, dining services, food service operations, those kinds of things. And so Okay. The other side of that coin.

Tracy Stuckrath [00:03:02]:
Okay. Well and and I think that's important because we we have if somebody is suing somebody, we're suing your customers, and it's, I think, it's really good and and important to understand both sides of the question. And it just actually brought up something that I saw on a Facebook group the other day around celiac disease. And some people were like, well, they're they're they don't have anything to feed me, and then the thread started. Well, then you can sue them because it's under the ADA.

Ryan Gembala [00:03:30]:
And

Tracy Stuckrath [00:03:30]:
you just can't go sue somebody because they can't feed you.

Ryan Gembala [00:03:34]:
No. The that's right. And, you know, look. That's a that's a that's a broad that's a broad answer to a a very complex question. You know? The idea that, hey. If somebody can't can't meet my dietary restrictions or satisfy my food, allergic conditions, that I can then turn around and sue them. That's not that is not generally the case in either the restaurant industry or the hospitality industry. And in fact, I've got some cases today, that I hope to have some time to talk about Yeah.

Ryan Gembala [00:04:06]:
The restaurant context where the guidance should have been, we can't serve you here because of your food allergy. Now there's some exceptions to that, Tracy, that exist, in in other kind of public settings. You know, you might think of the Lesley University case as an example where, a university would be obligated to comply with things like the Americans with Disabilities Act, where they're requiring students to purchase a menu plan from them and then turning around and saying, well, I can't I can't feed you despite requiring you to purchase, a a food plan. That's a that's kind of a different analysis, and that's why I say that that answer is too broad to apply, to any particular factual circumstance. I hope I hope that answers your question without too much legalese.

Tracy Stuckrath [00:04:55]:
No. I think it does. I mean and then I know there's people that go out there and just sue for the sake of suing, you know, to get a result. And and and I know Mary Mary Vargas, you know, she really looks at the cases to make sure that there it's gonna make change. Right? Not just for I'm gonna say ambulance chase for lack of a better description. But so what are from a food service perspective, can you explain the most common legal issues that might arise from allergen mishandling in the food service side?

Ryan Gembala [00:05:27]:
Sure. So I think if you if you think about, common legal issues, and in fact, this is this was a focus of the presentation, Tracy, that

Tracy Stuckrath [00:05:36]:
that

Ryan Gembala [00:05:37]:
you were just, talking about a a couple of minutes ago from the verse University of Maryland. And if you if you don't mind pulling up a couple of my slides Yeah. Speak to that. Mhmm.

Tracy Stuckrath [00:05:47]:
Yeah.

Ryan Gembala [00:05:50]:
So, like I said, the I don't focus my practice on things like Americans with Disabilities Act or even, Food Safety Act legislation in the various states. The reason that I don't do that is because it's it isn't something that comes up as frequently for me as do other more traditional, what I would call, on the ground issues. The most common types of liability I deal with for my clients is, is what we call common law issues. And so those kind of fall into 2 buckets. One is what I call negligent style claims. You can see it on the screen there, I hope. But this is when a an establishment is made aware of a patron's or a customer's food allergy. In other words, somebody comes in and and puts us on notice, that they've got a food allergic condition.

Ryan Gembala [00:06:46]:
And so I describe those in kinda common parlance as reactive claims. Right? That's the idea that you're reacting to something that somebody's told you. And the other type of legal issue that I see often is more product liability style claims, and that's when you know of an allergen in your food and you're proactively, trying to make folks aware of its presence so that they can guide themselves accordingly. And so those are the those common law issues are the ones that I see most often in my practice.

Tracy Stuckrath [00:07:20]:
Okay.

Ryan Gembala [00:07:21]:
As far as, you know, as far as kind of mistakes that I see in the hospitality industry Mhmm. That the biggest things that I see are really it's I think it's a function of people thinking that, doing the minimum is doing enough on some of the trainings, and the edge and so forth. And so we've got a saying. I've got a saying that I use with my clients. I've got a couple of sayings, and you'll hear me Yeah. Use them today. But one is the concept of if you know it, you own it. And so what I mean by that is, you know, our business is you know, you've heard the expression corporations are people too, and that's true, really, in politics.

Ryan Gembala [00:08:06]:
It's true in DC. But it's true when it comes to civil liability as well. What I mean when I say that is that all of our employees are deemed to be actors on behalf of our business. And so, when one of our employees becomes aware, of either a food allergic condition with a diner or a patron or aware that there's, kind of a latent allergen in a food product we're offering. Once they know it, they own it. And if they know it, it's implied that the rest of our entity, the rest of our business knows it as well. And so what's important in my mind, is making sure that those folks understand that that, that once anybody on our team is aware of a condition that our whole team is deemed legally aware of that condition, and that they understand to execute what I call the chain reaction, which is a circumstance where somebody receives that notification from a customer, and they know how to alert the appropriate people on our side to make service successful and what specifically to do, to carry out that service. And I I I can speak more about that if you want or maybe as well.

Tracy Stuckrath [00:09:22]:
I mean, because and, well, in putting in the context of a meeting, right, a meeting planner is collecting the information of an attendee, you know, asking dietary restrictions, and then we send that information to the to our event manager or catering event catering services manager. So at that point, we've communicated to them. And so that so that property should then be on notice.

Ryan Gembala [00:09:45]:
They're on notice. That's right. And so and the expectation then is that they're going to make their entire team aware, of whatever dietary concerns or restrictions or allergies we have coming in so that they can appropriately provide us service. Right? Because that's what we're paying for. And if they can't do it, then they're upfront with us and let us know that in time to secure some kind of alternative arrangement. You know, if you think about it in the in the restaurant context, a lot of times, the hypothetical I'll use is that it's a it's a busy Saturday night in a small restaurant downtown, and there's people all the tables are full. The bar is full of people waiting for tables. The lobby is full of people that don't have reservations, and the staff is going bananas trying to get everything done on time.

Ryan Gembala [00:10:37]:
And, you know, in food service and hospitality, we know on the staff side, there can be a lot of turnover, especially post COVID. And so finding folks to fill shifts can be an issue. So we've got people running around like crazy trying to get everything done, and I've got a family that sits down in the middle of that dining room. And maybe mom and dad have had a few cocktails while they've been waiting for their table, and they forget to mention to the host or the waiter that they have a child with a serious food allergy, but they pull aside a bus boy that they happen to see scooting through the dining room and say, hey. Can you let somebody know that my son's allergic to shellfish, before they bring the food out? And these these are real life scenarios. These are the kinds of stories that I've heard from clients' horror stories in a way. And now we're counting on that guy, that bus boy who's maybe been working here for a couple of weeks to make sure that he knows how to execute the chain reaction and knows to make the night manager aware or the host aware or the head chef aware or all 3. And that those folks then, when they call out the allergy, that that the, you know, the line cooks and the servers know what to do, whether it's working at the separate allergen free station, whether it's sanitizing the station they're at.

Ryan Gembala [00:11:56]:
It's getting the food ready, marking the plate in some way so you know it's an origin plate. Getting the food out of the kitchen as soon as it's ready, not leaving it, sit back there.

Tracy Stuckrath [00:12:06]:
Where you

Ryan Gembala [00:12:06]:
have a cross contact incident, those kinds of things. And so to tie it back, Tracy, to your hypothetical, I think the it's that's the chain reaction. Right? And notice starts with us. We pass it on to the event planner, and the expectation then legally on them is that they're gonna pass it on to their team because that team is responsible for honoring its contractual commitment to you, its legal commitment to you, and doing it in a way that's safe.

Tracy Stuckrath [00:12:33]:
Well and Joan, just asked that question to just to clarify, and I think you just did, is that then there is the obligation on part of this.

Ryan Gembala [00:12:43]:
Yeah. I see the the Yeah. Looks like the question there, I think, is whether that's a legal obligation that applies to the entire team or if it just applies to particular folks on the team. And so this is a great question, Joan, because this is one I deal with probably almost every conversation I have is, well, isn't it enough that the general manager knows? Or all the management level employees have been trained on food allergens or the head chef's been trained on food allergens. And the answer that I routinely give is that that is not enough. And in fact, anybody that could be involved in that process, in the process of serving, or caring for a patient a a patron or a diner that, has a food allergy needs to be trained on how to safely serve that individual. And so in that example I just gave, that's how you end up having bus boys and waiters and other people roped in that you maybe don't think of as traditionally being responsible for having that kind of training. It's important that they have training.

Ryan Gembala [00:13:47]:
And and certainly at an absolute minimum to notify somebody else and get them over to over to the table or get them over to the register or get them over to the line. Best practice would be for them to have training on what exactly has to happen. You know, there's another case that I have in my in my slide deck today.

Tracy Stuckrath [00:14:06]:
You wanna do that?

Ryan Gembala [00:14:07]:
Which one? Very thing. If you flip to the, let me pull I pulled some notes because some of this so I will tell you guys, if you look at it's Atlantic Star Foods versus Burwell let me see if I can get a slide number for you. It might be slide 22. There it is. So this is, what happened here this is it this is an unusual one. So, typically, when I do presentations like this, guys, I let me tell you a couple of things. Number 1, none of these are cases that involve my clients. These are cases that I pulled, out of the public record.

Ryan Gembala [00:14:45]:
I try to find things that are relatively recent, you know, cases from the last few years that I can share with you just because, sometimes the courts have a better understanding of more recent legislative changes and things like that related to food allergens. But I will typically bring, a series of cases where I've got 3 or 4 examples of how you're supposed to carry things out, how you're supposed to satisfy your legal duties to, to your customers. And then one case that is kind of the nightmare scenario where, you know, this is, what you don't wanna have happen, and that's the case in this Atlantic Star Foods versus Burwell case. This is my kinda cautionary tale, and I say that because this is a case where the plaintiff, the individual who was hurt by a food allergic reaction, recovered not only compensatory damages, which is the, money damages he suffered for loss of work and hospital bills and things like that, But, also, he was able to recover punitive damages, which are damages that are designed solely to punish somebody, to set an example for them and for others that that this kind of conduct won't be tolerated. And so what happened in the Atlantic Star Foods case is a a bodyguard, a driver, and his client, went to a a fast food restaurant late at night for hamburgers. The they'd ordered at the drive through, and the, the client ordered, I believe, 4 mushroom and Swiss burgers. The bodyguard wanted something called a Frisco burger, and he relayed to, the individual on the other end of that call box, you know, the drive through call box, that, that he was allergic to mushrooms. And the call box operator said, well, look, why don't you guys come on in to the restaurant? And so they came in to the restaurant, and the testimony is that Burwell, who's the driver, notified the cashier, that he was severely allergic to mushrooms, highly allergic to mushrooms.

Ryan Gembala [00:16:58]:
And in fact, the night manager himself testified that he'd heard that relayed by Burwell on multiple occasions. The counter worker acknowledged that he was allergic to mushrooms and brought the cook out, and the cook acknowledged that he'd heard also that Burwell was allergic to mushrooms and so forth. Ultimately, the cook had told him that we could prepare that, you know, they would be able to prepare the burger that way, that it would be bagged separately, and not to worry about it. Burwell had told the restaurant that he didn't want the items cross contaminated. They told him it wouldn't be a problem. When the order was up, there was one big bag and one small bag. Presumably, the big bag had the 4 mushroom and Swiss burgers, and the small bag had Burwell's, one Frisco burger, sans mushrooms. But that isn't what happened as you probably guessed by now.

Ryan Gembala [00:17:54]:
He bit into his sandwich. It had mushrooms on it, went back to the restaurant, to notify them, tried to make it to a pharmacy, wasn't able to do so without, being unable to breathe, was taken by ambulance to the hospital, was treated and discharged, and the day later, had to go back to the hospital because his condition hadn't improved, and stayed there for several days afterwards, ultimately lost his job and all the rest of it. And so, what's interesting about that, and we'll talk in a minute about, how to satisfy your legal duties. But in that particular case, Hardee's, the restaurant in question, had a policy that they were to inform patrons that they didn't have an allergen free cooking environment, that there was a possibility of cross contact, that, food allergies can be fatal. That's part of their policy. And in fact, the instruction to employees in that case, was that if patrons had a question about food allergies, that they were to be directed to the written policy, which was supposed to be posted, and that the employees were not to answer any additional questions about food allergies other than to direct them to the policy. Now the general manager at that restaurant had food allergy training. He had the training, and this this is bringing it's a long way around, but I'm bringing it back to the question that Joan had asked.

Ryan Gembala [00:19:23]:
The the general manager did have food allergy training, but this was late at night. And the night manager was on duty, and the night manager didn't have the training, as I understand it. And the general manager actually testified that what should have happened is the patron should have been told, look. We can't guarantee no cross contact. If you have that severe of an allergy, we would suggest that you eat somewhere else because we can't guarantee that we can produce this in a way that you want it that's safe to you. And that jury ended up coming back, like I say, with compensatory damages for that individual. And as you can see there on the slide, a $175,000 worth of punitive damages as well. Mhmm.

Ryan Gembala [00:20:04]:
And so, that's kind of a cautionary tale. That's a cautionary tale for a number of reasons. But Right. Right. It illustrates the point that just having the general manager in a particular facility trained really isn't enough. These are the folks those people, the call box operator, the counter worker, the cook, and the night manager, 4 people, all interacted, with this particular patron, and none of them followed the guidance that the general manager apparently had or at least the guidance that was consistent with their posted food safety policy, which was that we can't do this safely for you.

Tracy Stuckrath [00:20:40]:
Right. Right. So so but but I'm gonna say, I I feel like I'm echoing, that every single property is gonna hotel or whatever is gonna tell you that. Right? That, hey, we can't do this safely. We're not a nut free environment or we're, you know, we're not a gluten free environment. And they're gonna say, don't eat here. So how do you get around that?

Ryan Gembala [00:21:02]:
Sure. So that's a that's a good point.

Tracy Stuckrath [00:21:04]:
Say get around it? How do how can the food service provider really do that service? Because with 30 3,000,000 Americans having food allergies and it growing, that's a lot of lost business.

Ryan Gembala [00:21:14]:
Yeah. So I look. I think that that's a great question. I think that, you know, the easy I'll I'll tell you kind of a funny anecdotal story, that I think highlights the point. I remember the first time, I traveled overseas, I being a kind of a good citizen, I called my credit card company, and I had said, hey. I wanna make you aware of the fact that, I'm traveling overseas. I was going to Italy at the time. And I said, so if you see some transactions in euros and so forth, I don't want you to be alarmed or flag it as fraudulent because it's because I'm actually leaving the country, and I'm gonna be in Italy, charging things, presumably.

Ryan Gembala [00:21:51]:
And the operator on the other end of the line said to me, no problem, sir. We're gonna enroll you in our fraud protection program. You'll be protected. We appreciate you letting us know and all the rest of it. Then I got to the airport and put my credit card into park, and it was declined. And so I used another card and kept going. I went got through security and went to buy some food, and my credit card was declined again. And so I used the backup card one more time.

Ryan Gembala [00:22:16]:
I sat down at my terminal, and I called the credit card company. And I said, hey. What's going on? My card's been declined. And they said, oh, well, you're in our fraud protection program, sir. Well, that's not very effective customer service. Right? Yes. I'm protected from fraud in the sense that nobody can use my card, including me. And so that's not really a strategy to deal with that legal issue.

Ryan Gembala [00:22:38]:
Right? And so I would tell you the kind of the same thing, Tracy, in response to that question you just asked. I think the days of of, being able to sustain, especially on the hospitality side where you're serving, you've got events that you know, we're not trying to turn 10 tables a night in hospitality. Right? We're dealing typically with 100 or 1000 of diners per meal. And so the idea that you're going to run a successful business by turning people away with food allergies, these days is that's maybe it's not legal advice. It's business advice, but it it isn't practical. And so when I talk to my clients, I tell them, look. We've got legal duties. We've got duties to warn, and we can discharge those duties, you know, a variety of ways, whether it's, you know I typically tell people if they're doing a menu board, or they're doing a menu, certainly Right.

Ryan Gembala [00:23:36]:
I told them, look. List out the ingredients. I look for redundant we we call them redundant safety features, but the idea is that, you know, one isn't enough, typically, because, you know, we direct our folks for best practice. Right? And I typically talk about doing having having it be a 3 step process. So I'll do an ingredient list in a menu or on a menu board. I'll do an icon, whether it's a clamshell or a fish or an egg or one of those old style glass milk cartons or whatever. And then I'll do a a verbal too, right, that my my waiter, my waitress, my cashier, my server is gonna ask about food allergens live. And that's the way we discharge our duty to warn.

Ryan Gembala [00:24:22]:
Now that's we've got it. Like I say, the duty to react that we talked about, the negligence claim, the reactive kinds of claims that I discussed earlier. The other side of that is the proactive claims, the the products liability style claims, where we know of a latent condition, in our food that we wanna make people aware of. And so when I'm talking through that process with clients, Tracy, the the idea if you think of so I I graduated from the Ohio State University. I'm here in Ohio, and, we're proud of our Buckeyes, certainly. And we've got a candy that's very commonplace here, though I think maybe is not in other parts of the country. They're called buckeyes. The idea is it looks like a buckeye nut.

Ryan Gembala [00:25:04]:
It's, and it's a chocolate covered peanut butter ball in essence. And so I use this as an example because if you look at the candy itself, at least from some angles, you wouldn't there'd be no way to know that there's peanut butter in it, number 1. And number 2, the name itself doesn't suggest that there's peanut butter in it. Yeah. Thank you, Joan. Yeah. Yeah.

Tracy Stuckrath [00:25:30]:
So They are good.

Ryan Gembala [00:25:32]:
So that's an example, of when we've got a proactive duty to warn. Right? I don't have to wait for somebody to tell me they're allergic to peanut butter necessarily to make them aware that there's peanuts in this. And so, you know, that's a, that's an opportunity where some of those sign some of the sign the menu board listing out of the ingredients, those things are are more effective, because it's out there. And the customers understand this. This is an important piece when it comes to assessing legal liabilities. We can't we need to put ourselves in the best position we can be to defend to defend the practices of of our institution. And so the the old saying is right. Right.

Ryan Gembala [00:26:15]:
An ounce of prevention is worth a pound of cure. If we can present prevent an incident from happening, certainly, that's best practice. Right? But if we can't, and then it's nonetheless gonna happen. We need to be in a position that we can defend ourselves to a jury because when you walk into that courtroom, typically, if you're in federal court, 12 jurors. If you're in state court, in a lot of places, only 8. But they're gonna be looking at the plaintiff, who has a family member who is either sick themselves or or worse off deceased and has a family member sitting there at one table, and at the other table is gonna be our institution and the legal team. And most jurors are gonna have an easier time relating to the plaintiff, to the party that was injured, because they're gonna have a spouse or a sibling or themselves or a child or a parent that has a food allergy, and they're less likely to be saying, oh, you know, poor hotel operator. You know? Just it isn't practical.

Ryan Gembala [00:27:16]:
And so so we need to be in the the best position we can, to defend ourselves and understand that when it comes to legal duties, we've got a duty to warn. And then once we discharge that duty, the patron, the diner has a duty to protect themselves as well. And I think that's an important piece that sometimes gets lost when we talk about this issue that I'm not telling you that if you have 3 warnings, you're gonna be able to stop every, allergic reaction in your dining hall. I don't think anybody can tell you that. But what I am telling you is that that's gonna put you in pretty much a stronger position as you can be if you have to defend yourself from an incident that nonetheless happened. If we skip to if you don't mind, Tracy, can we skip to the Crawford versus Marriott case? Because I think that it's, I've got it in slide 21, I think. 21? Okay. Yeah.

Ryan Gembala [00:28:08]:
But I think this is a great example, and it really it ties in the hospitality piece of this. And so what was happening here and, folks, this is an 11th Circuit case. It's from 2021. It's only a couple of years ago. But, 11th Circuit's a federal, circuit court of appeal, so it this is something that would cover several states. This is a that's a fairly high profile venue for something like this to get to. But what happened here, and this is an example of getting it right. By the way, this is an example where Marriott really knocked it out of the park, I will tell you.

Ryan Gembala [00:28:42]:
Nonetheless, there was a a food allergy incident, but they did everything, everything by the book, everything as I would have rec would have recommended or suggested. Again, they're not my client. This isn't a case I was involved in, but I think it's a really good example, and kinda highlights some of the ways to discharge the legal duties that we're talking about. So in this case, Marriott was catering a banquet for the Revealed Life Church. It was at one of their facilities in Georgia. And the menu offerings were blue crab stuffed chicken, salmon, and kind of a vegetable plate, I guess, for lack of a better word. Now, the church had asked Marriott if they had a chicken option without seafood in case there were folks that had a seafood allergy, and Marriott told them affirmatively that we can absolutely do that. But, you know, let us know how many you need, put in the request, and we'll make sure to have that available to you.

Ryan Gembala [00:29:43]:
The church did not request a single hour gin free dinner. There was signed there was a signed order form, that reflected the orders for the blue crab stuffed chicken, the salmon, and the veggie. Okay? So now Yep. They've asked, they've made them aware that they could ask for hours in free and non were requested. In writing, they've relayed to the church precisely what's gonna be served, and there were no no alterations requested, no allergen free option requested. Nobody's saying, hold up. Stop the presses. We need to get the, seafood free chicken available.

Ryan Gembala [00:30:24]:
On the day of the event, the hotel confirmed with the representative from the church that there were no changes to the menu because of restrictions. None. So this is the same written menu that they've already had and they've already approved, and now we're doing a second verbal confirmation that there's no changes required. Now here's where things get a little interesting. The church made its own placards for meals. It was kind of a a sit down meal service if you like, and so it the placards have folks' names and then what they'd ordered. Mhmm. Crawford, the plaintiff in this case, her placard said chicken on it.

Ryan Gembala [00:31:01]:
Now remember, this this wasn't produced by Marriott. This was something that the church had done of its own volition. She ate the chicken, ostensibly unaware that it had blue crab inside of it because of her shellfish allergy. She became violent. Court now the court found that the presence of crab meat in the chicken was not open and obvious to Crawford, and then it wasn't disclosed by the placard. So this kinda gets back to the Buckeye candy example was giving you. You know, having a placard that says chicken even though it it came from the church doesn't disclose to a diner that there's gonna be, shellfish in the dinner they're actually eating. Now that said, the court nonetheless found in favor of Marriott because they said, well, a duty arose because you had this latent allergen in a chicken dish.

Ryan Gembala [00:31:51]:
Marriott, you satisfied all the legal duty that you owed to this individual because of all of the redundant checks, which had done prior to the actual meal service. There's a, there's a a quote here. I wanted to read it. It says this is from the court. It says, Marriott's agents communicated to the church's representative, pastor Carter, repeatedly and in writing that the entree being offered was a blue crab stuffed chicken breast and asked several times whether any guest had dietary restrictions. Marriott also offered a different seafood, free chicken entree for anyone with a seafood allergy. There's no plausible argument that Marriott disguised its dish or misled or misinformed consumers, of what was in its offering. And so that's kind of a classic hospitality example where you have a duty, to warn of a latent food allergen, and you satisfy that duty.

Ryan Gembala [00:32:45]:
Nonetheless, somebody got sick, but you did everything that legally that you were required to do. And then at that point, the obligation becomes hers.

Tracy Stuckrath [00:32:55]:
Well, okay. Now my question is, does the application become the church? Because the church is the one that was taking the registrations, and if they had asked, they didn't communicate that to Marriott.

Ryan Gembala [00:33:06]:
Yeah. Well, now you would like to think, that the church that had pastor was it pastor Carter? Mhmm. Would it relate to his patrons, to his flock that that these are the menu offerings. If you have an allergic condition, we can get you something else. We can get you a seafood free chicken. Whether or not he pastor Carter did that and Crawford just didn't respond or ignored it or wasn't aware of it, I don't know. I would think so if you think so that's your question, Tracy, is a little bit it's outside necessarily, potentially, it's outside kind of food safety issues, and this this would fall under, to my mind, a general negligence studio, what we call a general duty of reasonable care. And I would think that as somebody that's responsible for overseeing my congregation and organizing this event Mhmm.

Ryan Gembala [00:33:57]:
That I would have an obligation to relay to my members that are participating that there is, either well, probably both. Best practice would be both, but, certainly, that that there's seafood in the chicken option and that you can get a seafood free chicken option, you'd like to relay both of those things. And, you know, belts and suspenders would be having some kind of response saying, you know, crab is fine or give me allergen free. Right. That's a lawyer's dream world.

Tracy Stuckrath [00:34:26]:
No. And and, no, it's my dream world. It's my dream world too. Because it it it goes to show that I mean, because the meeting planner is the one responsible for ordering the food. Right? Yep. You're you're the voice to that attendee. And so but it but that contract that you said where it was documented, it's it's called an event order or a banquet event order. Sure.

Tracy Stuckrath [00:34:46]:
And that's where it should be documented. So it's but that's the system that they run on is so antiquated. So trying to get that information sometimes on a BEO is really challenging, but it it's imperative to making sure that the hotel knows to do that and you as the meeting planner are saying this is what I'm ordering. Yeah.

Ryan Gembala [00:35:07]:
Yeah. Now let me can I talk about another case? I don't know. Yes. Let me see if I have it in my notes or not. Oh, yeah. It's 23. It's the versus JJ Alpine. Okay.

Ryan Gembala [00:35:19]:
What I what I like about this case, Tracy, this is so this is a, it's a fast food sandwich restaurant. J j

Tracy Stuckrath [00:35:29]:
Can I interrupt real quick? Jones had a question. Do you know, were the plate placards that stated the ingredients of the food served or menus with the ingredients? I think it was or, yeah, do you know?

Ryan Gembala [00:35:41]:
I well, yeah, the the answer is no and no. The placards just said chicken on them. Now this was those were placards that were made by, by the church, not by Marriott. Mhmm. And so that's where you woulda liked to have seen, something that said crab stuffed chicken, for example, as opposed to just chicken. The the menu whether or not the menu ingredients were listed by Marriott somewhere, I can't say you know, this this was at a a banquet facility, and so it wasn't, kinda cafeteria style service in the sense that you have a menu board, behind the food service area. I don't think, if they handed out menus that had the, various entrees and the ingredients lists, it wasn't referenced in the court's decision. I feel like it would be if that was there.

Ryan Gembala [00:36:30]:
Yeah. So I don't believe so, Joan.

Tracy Stuckrath [00:36:33]:
Well and I think that goes the I mean, that's a bit if it and it sounds like it was a plated meal and not a buffet.

Ryan Gembala [00:36:40]:
Yes. Yep.

Tracy Stuckrath [00:36:41]:
And so that plated meal is probably you know, when you go to a wedding, you get that little placard in front of you Yes. That says

Ryan Gembala [00:36:47]:
That's exactly.

Tracy Stuckrath [00:36:48]:
Yeah. That's probably what it was. Yeah. Yeah. But Okay.

Ryan Gembala [00:36:51]:
That's exactly it.

Tracy Stuckrath [00:36:52]:
My end.

Ryan Gembala [00:36:53]:
Yeah. No problem. And so the the Jimmy John's case, this is a this is a case where, an individual was making a lunch order for her office, sandwiches from Jimmy John's. And she told the, I guess, the cashier, whoever answered the phone at Jimmy John's, whoever was maybe working the line that day, to omit Dijon mustard, from her sandwich, which did not happen, as you can probably guess. She took a bite of it without looking at it. The mustard was there. She had an allergic reaction, actually, to the point that it impacted her speech long term. She was on disability for some time, ultimately was able to regain speech, but but a meaningful reaction, to eating the Dijon that she has not be put on her sandwich.

Ryan Gembala [00:37:44]:
What was interesting about this case, this is a Michigan case. It's about 5 years old now. The court there found in favor of Jimmy John's, and had reasoned that look. She had asked that Dijon mustard be omitted, but she had not disclosed to them that she was allergic to Dijon mustard. And Jimmy John's had an allergen control plan. It included new gloves and included papering over what they call the cold table, for sandwich preparation. It included separate bagging and all those kinds of things that you would expect to you know, separate utensils, things you'd expect to find, in a kind of an hours in control You know, part of executing your chain reaction once you're you're made aware that a diner has a food allergy. But in the she she didn't identify a food allergy.

Ryan Gembala [00:38:34]:
She asked for a what the court described as a preference. And the court distinguished a food preference request from a food allergy request. And what they found is they said at that particular location, apparently, the they serve 400 sandwiches at lunchtime a day, And that 50 to 70% of those sandwiches contain some kind of modification to how the sandwich is served on the menu, and that the court found it unreasonable to think that Jimmy John's should have to proactively, ask everybody coming through the drive through or coming up to the counter what their food allergies are. But the the analysis would have been different had she disclosed that she had a food allergy. That's you know it, you own it. In this case, we didn't know it. And the ingredients here are on the menu board that's behind the register. And, as I understand, it was on the menu board at the drive through box as well so that you would know, what condiments and so forth came with what samples.

Ryan Gembala [00:39:37]:
Now these cases let me mention one other thing that I think is is helpful. These cases, the Jimmy John's case, also the Marriott case, these were cases where the court found, in favor of the restaurant and the hotel in that case, and had ruled that there wasn't enough evidence even to get the claim to the jury. Okay. That's an important piece of what we do. Right? Because when when a case gets to a jury, whether I'm I do plaintiff's work. I do defense work. I've I've been doing this 19 years. I'm all over the place.

Ryan Gembala [00:40:10]:
And and I I tell all of my clients, whether it's an individual, a corporation, a mom and pop, or or something else, I say, look. When it goes to a jury, all bets are off. I don't know what those folks are gonna do. I don't know what they're thinking about when they're in a jury box. These are 8 to 12 strangers that I can guarantee you this what they're doing, their jury service is at the bottom of the list of things they wanted to do that day.

Tracy Stuckrath [00:40:37]:
Mhmm.

Ryan Gembala [00:40:38]:
And it's just unpredictable to know how they might come out. What's important about these cases is that these institutions were able by employing best practices, were able to put themselves in a position that the case didn't even have to get to the jury, which is the best spot you can be in. You know, some of the things that I talk about, I've got a I've got a do's and don'ts, and I've got a do's and don'ts, and I've got a know, some of the things that I talk about, I've got a I've got a do's and don'ts in my slides. We could try and through it quick if you want. It's I'm just trying to pull the like, it looks like maybe it's at slide 13, but this is out of I don't know if anybody, that's listening knows Keith Norman, the, chef at South Point Casino. But he's got a book called Allergan Awareness, a Chef's Perspective, and this is a section that I put together for him for use in that book. And this, you know, this talks through, I've got 10 it's called do's and don'ts. It's really do's.

Ryan Gembala [00:41:29]:
I've got 10 different steps in here. I know we're we're getting a little short on time, but if we if you skip to the next slide, if you look at number 3, what I'm talking about there is training for everyone. And so it's that concept. If you know it, you own it and know how to execute the chain reaction. So 1 and 2 were safe handling. 2 was separate prep area and tools. Those are best practices. Tracy, I know you and I have seen examples of that, even just a couple of months ago when we were down in Maryland.

Ryan Gembala [00:41:59]:
But, you know, that's those things, you know, you don't always have space to have a separate freezer for allergen free, and so there's there's things you can do to protect yourself that way. But training, if I were to look at these these top ten dos and pull a couple of out a couple of them out that I think are important, training would be my number 1. This is the training for everybody. If you if you hear me say one thing today, it's that. The emergency medical devices, there's different lawyers have different ideas about about this. I am somebody that's in favor of having things like epinephrine on-site. That's typically the advice I give to my clients. Everybody's situation is different.

Ryan Gembala [00:42:38]:
I'm not saying that's hard and fast. But I like to be in the position to be able to say if I find myself in front of a jury, that I tried to do everything I could to save that individual, including, having a stock epinephrine. If you skip to the next slide, though, this is important.

Tracy Stuckrath [00:42:55]:
I on that note there, I'm doing an event at La Cantera Resort in Texas, in San Antonio next month, and Mhmm. That director of security said they have epinephrine on staff, and everybody on his team has been trained on how to implement epinephrine. I about jumped out of my chair and hugged us because I was so excited.

Ryan Gembala [00:43:14]:
Yeah. Yeah. That's never the answer we get. Right? It's

Tracy Stuckrath [00:43:17]:
not. And I'm like, oh my

Ryan Gembala [00:43:18]:
god. Good.

Tracy Stuckrath [00:43:19]:
I love you. Yeah.

Ryan Gembala [00:43:21]:
Let me this is I think I know just in the couple of minutes we have left. I think number 5, when it comes to, to litigation protection, this is important. So I'll talk to you about things to document if you have an incident probably in our last 10 seconds. But Yeah. What I'm talking about here is documenting training and participation. So I like to train people when they're coming on board, participation. So I like to train people when they're coming on board, and I like to do annual refreshers, and I wanna keep notes of that. And it doesn't have to be anything detailed.

Ryan Gembala [00:43:51]:
It can be a log sheet that somebody signs that has the name of the training, safe, you know, auto injector use, and has a name and a date. And somebody signs in and puts the date that they had the training. It can be as simple as that. But these are the you know, certainly, would I like you to preserve the training materials? Yes. I would. But my point is these are the kinds of exhibits that you can put in front of a judge or if you have to, in front of a jury to say, listen, folks. This is something that we take seriously. Do we have menu that list out our ingredients? Yes.

Ryan Gembala [00:44:25]:
Do we have icons? Of course. Did we ask? Yes. Now the patron may say, you didn't ask me about food allergies. Well, how how can we prove that we did? Well, here it is. It's part of our training, and you can see that that waitress, the last 3 years, has signed in annually that she received the training. She knew what to do. Reviewing and updating training procedures is important, particularly where there's things like menu changes and that. If you can skip just for a minute to, slide 17, which is number 9, This is a a list of what I would call good or best practices if you have an incident that occurs at a premises where you're at.

Ryan Gembala [00:45:03]:
You're gonna wanna get a list of all the items that were ordered. I mean, certainly, I guess I've got some points there. You're gonna wanna get qualified, medical assistance. So, right, we if we have a a epi on-site, we'll we'll inject. We'll dial 911, see what other medications have been taken. But things to collect for your lawyer or your insurance carrier would be a list of the food that was ordered, identification of the people at the table and what they ordered, including alcohol because that oftentimes plays a role at least in a restaurant. Copy of the menu so we can see what was served that day and also how it was displayed. Because in a lot of states, these folks are gonna have at least 2 years, possibly more time to actually bring a lawsuit.

Ryan Gembala [00:45:49]:
And so how your menu looked in May of 2024 is gonna be different probably than our Yep. May 26th. Get a copy of Allergan notices. Is there something on the front door? Is there a posting at the host stand? Is it in the menu? Is it on the table somewhere? So forth and so on. Any written statements that were made, obviously, you're gonna want copies of those. If you can preserve the actual food itself, that's a best practice. Not always possible. But But tickets, receipts, and surveillance, certainly, the the documentation, if you like, are things that that you're gonna wanna preserve, and then call your insurance carrier or call your lawyer, whoever it is, so they can guide you through the through the specifics of of any situation like.

Tracy Stuckrath [00:46:32]:
Can I put a scenario in front of you real quick?

Ryan Gembala [00:46:35]:
Sure. Of course.

Tracy Stuckrath [00:46:37]:
Okay. I'm gonna say that 90% of the cards that go on a buffet label on a buffet are made by the front of the house staff.

Ryan Gembala [00:46:44]:
Sure.

Tracy Stuckrath [00:46:45]:
And they're made the morning of or an hour before that event. And I'm gonna say 90% of the time, majority of those are incorrect. Yes. So and and those are and the back of the house and I have been told by chefs, I make the food. I don't label it. And then the front of the house staff says, I don't cook.

Ryan Gembala [00:47:06]:
I don't

Tracy Stuckrath [00:47:06]:
cook, so how would I know that? So from a hotel's perspective, and Joan asked this question, how is how do we how does this become universal, you know, to make sure that these things, their their method of communication, which you're saying as their attorney, should be standard practice. Yes. Made that happen, Ryan. Come on, Ryan.

Ryan Gembala [00:47:28]:
Yeah. You know, at training. Right? I mean, that's the easy answer. I look. I know I recognize how difficult it is wrongly, but it is difficult sometimes to get clients to take food allergy seriously in a way of taking it seriously up front. Everybody can react in a serious way to an incident once it occurs. But at that point, the horse is out of the barn. Right? And I've dealt with that exact communication issue that you've just described as, well, hey.

Ryan Gembala [00:47:57]:
I've got 2 separate people doing it, and, you know, they don't one's going like wildfire in the back. One's dealing with all the customers in the front. It isn't practical to think that they're gonna find some other time to sit down and go over it. And the answer is you have to make the time. Now in that instance, you know, hopefully, you've got those redundant safety features in place that that your patrons are nonetheless protected. But understand this. Think about Hardee's. You know, the Hardee's case, they had a policy in place.

Ryan Gembala [00:48:24]:
They didn't follow it. Mhmm. It got compensatory and punitive damages as a result. So you've got a policy in place that includes, placards on a buffet line as an example, and it's wrong. Right. That's a problem. Right? That's acknowledging that you have a legal duty. It's trying to discharge it, but getting it wrong.

Ryan Gembala [00:48:43]:
You know, juxtapose that with the Marriott example where it was again and again and again. Mhmm. You know, those are difficult cases to defend for guys like me because it's not you knew you had to do it, and you just didn't do it. And if the answer is, well, they just didn't have time to communicate, that's that's gonna be a tough argument to get past the jury.

Tracy Stuckrath [00:49:05]:
Right. Exactly. Right. Joan wanted to know and and I do have your slides, but can I share the do's and don'ts with people?

Ryan Gembala [00:49:13]:
Yeah. Do's and don'ts would be would be fine to share. They are in in the book Allergan awareness too, but they Yeah. I would definitely understand that this is not legal advice in the traditional sense. I know, you know, lawyers with our disclaimers, I don't this isn't something that's gonna apply to every situation. But Right. As general ideas, these are things that I think are important. But I'd be happy, Tracy, if you wanna share them, with those that are interested.

Ryan Gembala [00:49:39]:
No objection at all.

Tracy Stuckrath [00:49:40]:
Alright. I'll I'll put it on one sheet, have you proof it before I distribute it.

Ryan Gembala [00:49:44]:
That'd be great.

Tracy Stuckrath [00:49:45]:
Okay. Alright. Awesome. So alright. Anything out of what you just said, you you're I just could talk to you for hours. How what what do you want people to get out of this more than anything?

Ryan Gembala [00:50:00]:
Sure. Biggest takeaway to me is training everybody and documenting that you did it. That that really is it. If I if I'm starting from that place in defending a case, I've got a pretty good pretty good base, pretty good foundation to build off of, where folks haven't had training and there's an allegation that they did something wrong. You know, that oftentimes, that's a he said, she said right, and it's it's hard to prove that one way or the other. And that's where jurors kinda look at the case, and maybe they say, who do I like better? And it's not that's not a place you wanna be. So I think it's it's doing the training. It's know it.

Ryan Gembala [00:50:36]:
You own it. It's training everybody on your team and documenting that you did it.

Tracy Stuckrath [00:50:41]:
Okay. Awesome. Alright. And then my final question, and how do you and you you may have just kind of answered it, but safe, sustainable, and inclusive food and beverage dining experience. How would you sum that up?

Ryan Gembala [00:50:54]:
Yeah. You know, I think that's it. I think it's I would sum it up by saying not taking the easy road, Tracy, to your question earlier. The easy thing to say is, well, I just can't serve you. You know? And look. Maybe there are certain circumstances where that's an effective business strategy. It is not for the clients that I work with. It's not it isn't realistic to think you can turn away everybody with a food allergy or an intolerance or even preferences in some cases.

Ryan Gembala [00:51:17]:
And so, I think the the way to deal with that is to push the information out there in writing and verbally. It's the redundant features, and it's making sure that, the folks on your staff, if they get pulled aside, even if it's not their table or not their line or they're just in the dining hall, that they at least know, hey. This is important. Somebody disclosed an allergy and allergic Mhmm. To me. Let me make sure I initiate the chain reaction and let somebody with more authority than me know that this happened so they can get everybody in line.

Tracy Stuckrath [00:51:50]:
That's awesome. And it just makes me think because typically on a banquet event order, it'll it spells out the whole menu, and then at the bottom, it says 25 gluten free, 10 no fish, and whatever. I'm like but you're not actually sharing with me what you're giving them, and that to me is not communicating clearly. Yeah.

Ryan Gembala [00:52:08]:
No. I'd I'd much rather have the entree described and the ingredient list

Tracy Stuckrath [00:52:12]:
Yeah. Mhmm.

Ryan Gembala [00:52:13]:
And potentially the allergens too, though. Yeah. Again, that's those are redundancies, but I would rather have one more line on a order sheet than have to defend a federal lawsuit. That's that's the truth. That's the truth.

Tracy Stuckrath [00:52:27]:
Just flip that and quote it everywhere. Right? That is awesome. Joan just said thank you, and I know it's not legal advice. It's practical advice.

Ryan Gembala [00:52:36]:
Yeah. Yes. That's right. Thank you, Joan. That's exactly right.

Tracy Stuckrath [00:52:38]:
Yeah. Exactly. Brian, thank you so much. Oh, actually, and everybody, if you'd like to reach out to Brian, if you want Brian to represent you, here you can, if you need to, reach him at duallygimbala.com. Did I say that right?

Ryan Gembala [00:52:53]:
You did. Yeah.

Tracy Stuckrath [00:52:54]:
Okay. And, yeah, thank you. There's

Ryan Gembala [00:52:58]:
It was my pleasure. I really appreciate the time, Tracy.

Tracy Stuckrath [00:53:01]:
Yeah. I really appreciate your time. And everybody stay tuned. Tomorrow, I've got a chef from the UK talking about how he makes safe food allergen meals, with their 14 allergens that they have to, regulate in the UK. So until then, stay safe and eat well. Thanks.

Ryan Gembala [00:53:17]:
Bye bye. Thank you. Bye.