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Marler Blog

Providing Commentary on Food Poisoning Outbreaks & Litigation

Will Litigation Be The Tipping Point For Adopting E. coli Vaccines For Cattle?

284Recently, a Kansas State University Study examined again the effectiveness, through vaccination, of reducing pathogenic E. coli shedding in cattle. Schroeder, Ted C and Tonsor, Glynn T (2015) Agricultural and Food Economics: Market impacts of E. Coli vaccination in U.S. Feedlot cattle 3:7. This commercially available intervention has been used sparingly since 2010. But although it’s proven effectiveness has been shown to decrease the presence of pathogenic E. coli bacteria in cattle by as much as 98 percent, the cattle industry have largely refrained from adopting the practice of vaccinating herds.

Research shows that pathogenic E. coli bacteria cause more than 175,000 human illnesses per year with annual direct economic costs to the public ranging from $489 million to $983 million. The study found that if a vaccination program was adopted the cattle industry would face $100 million to $180 million in yearly costs. However, despite the economic and moral benefit generally, the cattle industry has not adopted vaccination because it bears little of the economic costs borne by the public as a whole and nothing – regulation or litigation – has forced a response.

Which begs the question, can and should the cattle industry be liable for the deaths and injuries that happen each year across the United States because of public consumption of E. coli-tainted food – be it beef contaminated during slaughter or foods – like leafy greens – contaminated environmentally through contact with cattle feces?

The question takes us back more than eighty years to the precedent setting opinion in the case of T. J. Hooper by Judge Learned Hand.  In the case of T.J. Hooper, tugboat owners where held liable for the sinking of two barges. The plaintiffs in the case argued that the tugboat owners were liable for negligence because they had not properly equipped their boats with receiving sets, which would have allowed them to receive two weather predictions daily, and allowed them to avoid the storm that resulted in the sunken barges. The tugboat owners argued in opposition, and the Court agreed that there was no custom at all as to receiving sets; some tugboats had them and some did not; the most that could be urged was that they had not yet become a general practice. Yet, the Court, finding in favor of the plaintiffs, held that a lack of community standard was no defense and found the tugs liable because had they been properly equipped, they would have received the weather reports, and the injury was a direct consequence of the lacking receivers. See, The T. J. Hooper, 60 F.2d 737 (2d Cir. N.Y. 1932).

This T. J. Hooper principle supports the notion that a lack of industry standards for E. coli vaccinations in the cattle industry is no defense if that E. coli kills or injures someone. The cattle industry, like the tugboat owners, when faced with this argument, would plainly argue that they are not required to vaccinate their cattle and that there is no industry custom by which to shed light on their negligence in not vaccinating their herds. But these facts, and these arguments, are analogous to those surrounding the holding reached by Judge Learned Hand almost a century ago—a lack of industry standard is no defense for negligence.

And this brings me to my next point – a point emphasized again by Judge Learned Hand just 15 years after his opinion in T. J. Hooper – the calculus of negligence. If we identify, per Judge Learned Hand, the probability that someone becomes infected with E. coli, the gravity of the resulting injury (hospitalization and/or death), and the burden of adequate precautions (vaccination), there is almost no logic to the cattle industry refusing to vaccinate their cattle.

In a prevalence study concerning just the presence of E. coli O157:H7 in beef cattle during processing, 28 percent of fecal samples were positive. Robert O. Elder, et al. Correlation of Enterohemorrhagic Escherichia coli O157 Prevalence in Feces, Hides, and Carcasses of Beef Cattle During Processing, Proc Natl Acad Sci USA. Mar 2000. 97(7): 2999-3003. And three other multistate studies reported the apparent prevalence of feedlots containing one or more infected cattle. These estimates were 63 percent, 100 percent, and 100 percent. Dargatz DA, Wells SJ, Thomas LA, et al. Factors associated with the presence of Escherichia coli O157 in feces of feedlot cattle. J. Food Prot. 1997; 60(5): 466-470; Hancock DD, Besser TE, Rice DH, et al. Multiple sources of Escherichia coli O157 in feedlots and dairy farms in the Northwestern USA. Prev. Vet. Med. 1998; 35: 11-19; Smith, D, Blackford M, Younts S, et al. 2001. Ecological relationships between the prevalence of cattle shedding E. coli O157:H7 and characteristics of the cattle or conditions of the feedlot pen. J. Food Prot. 64(12): 1899-1903. These studies show a high prevalence of E. coli O157:H7 amongst both beef and dairy cattle during processing.

When you consider the prevalence of E. coli amongst beef and dairy cattle with the injury likely to result to humans – $4.9 billion to $9.8 billion in economic costs every 10 years – against the burden of adequate protection – $1 billion to $1.8 billion in industry costs over the same 10 years – Learned Hand’s equation begs for vaccination of cattle against E. coli. And why the beef industry hasn’t recognized this and made vaccination common practice is baffling. But whatever it is, research is making it more and more clear that hundreds and thousands of deaths and injuries every year are preventable. And they are preventable at a cost much lower than what the injuries and deaths are currently costing the United States economy.

Given the clear value to vaccination and the cattle industries refusal to adopt it to protect the public, perhaps a new theory of liability has arisen? I look forward to asking the next cattle industry president while under on the stand and under oath – “Now, can you explain to the jury why you did not vaccinate your cattle before this child died?”