Marler Blog : Food Poisoning Lawyer & Attorney : Bill Marler : Marler Clark

The Department of Justice, in an action initiated by the U.S. Food and Drug Administration, is seeking a permanent injunction against A Chau Sprouting Co., a sprout grower in Gretna, La., company owner and manager Quang “Mike” Trinh, and Hue Nguyen, the company production manager.

The complaint, filed on March 16, 2010, in the U.S. District Court for the Eastern District of Louisiana, charges the defendants with violating the Federal Food, Drug, and Cosmetic Act by preparing, packing, and holding sprouts under insanitary conditions, where they may have become contaminated with filth.

“The agency has repeatedly warned the company over several years that corrective actions need to be taken in this facility,” said Michael Chappell, acting associate commissioner for regulatory affairs at the FDA. “While no illnesses have been reported to date, this action is necessary to ensure that it remains that way.”

The ready-to-eat sprouts are distributed to wholesale suppliers, who in turn distribute them to customers located in Gulf Coast states, including Louisiana, Mississippi, Alabama, Florida, and Texas.

Five FDA inspections over the past nine years, including an inspection conducted between August 2009 and September 2009, revealed that the defendants failed to implement basic food sanitation principles and practices for their sprout growing operation, according to the complaint.

The complaint alleges violations that include equipment and facilities that were unclean or unable to be sufficiently cleaned, insanitary employee practices, and a poorly maintained facility.

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As DuPage County Health Department spokesman David Hass official announced that a total of 78 people had fallen ill due to a Shigella outbreak at a Subway sandwich shop in the Chicago suburb of Lombard, our phones have been ringing with the calls of 51 of those former customers of Subway.

Mr. Hass further reported that 11 people had been hospitalized due to illnesses from the outbreak as of Wednesday, with 10 of those individuals being discharged. Six of those have contacted us. Hass said the investigation into the outbreak at the Subway restaurant in Lombard is ongoing. The eatery is currently closed. We have learned during our investigation that several of the 78 sickened by Shigella are/were employees of Subway.

If only they had washed their hands and wore gloves.

Shigella is a family of bacteria that can cause sudden and severe diarrhea (gastroenteritis) in humans. Shigellosis – the illness caused by the ingestion of Shigella bacteria – is also known as bacillary dysentery. It can occur after ingestion of fewer than 100 bacteria, making Shigella one of the most communicable and severe forms of the bacterial-induced diarrheas.

Shigella thrives in the human intestine and is commonly spread both through food and by person-to-person contact. Most Shigella infections are passed through the fecal-oral route. This happens when basic hygiene and handwashing habits are inadequate and can happen during certain types of sexual activity. Transmission is particularly likely to occur among toddlers who are not fully toilet-trained. Family members and playmates of such children are at high risk of becoming infected.

Food may become contaminated by infected food handlers who don’t wash their hands with soap after using the bathroom. Vegetables can become contaminated if they are harvested from a field with sewage in it. Flies can breed in infected feces and then contaminate food.

Water may become contaminated with Shigella bacteria if sewage goes into it or if someone with shigellosis swims in or plays with the water (especially in splash tables, untreated wading pools, or shallow play fountains used by daycare centers). Shigella infections can then be acquired by drinking, swimming in, or playing with the contaminated water.

The number of shigellosis cases reported annually to the Centers for Disease Control and Prevention (CDC) has varied over the past several years, from more than 17,000 during 1978–2003, to an all-time low of 14,000 in 2004, to almost 20,000 in 2007. Many cases go undiagnosed and/or unreported, however. The CDC estimates that 450,000 total cases of shigellosis occur in the U.S. every year.

Shigella is the third most common pathogen transmitted through food. During 2006, a total of 1,270 foodborne-related outbreaks from 48 states in the U.S. were reported. Although Shigella was responsible for only 10 (1%) of those outbreaks, 183 confirmed cases of shigellosis were reported. This contrasts with an average of 659 cases annually in the previous five years.

We are or have been involved in representing families who have suffered from this bacterium. Here are some examples:

Doubletree Hotel Shigella Outbreak - Colorado
Filiberto’s Shigella Outbreak - California
Gate Gourmet Shigella Outbreak - Hawaii, Nationwide
Royal Fork Shigella Outbreak - Washington
Senor Felix 5-Layer Dip Shigella Outbreak - Western States
Subway Restaurant Shigella Outbreak -Chicago
Viva Mexico Shigella Outbreak - California

This is not our first case against Subway in this litigation (we have filed three lawsuits so far), nor the first case we have had against Subway. We represented dozens in a Subway Hepatitis A Outbreak in Washington several years ago. Someone did not was their hands there either.

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Under the new rule of strict liability, to hold a food manufacturer liable, a person injured while using a food product need only show that: (1) the food product was defective; (2) it was used as intended; and (3) the defect caused the injury. The care used in the manufacture of the food product is irrelevant to the determination of liability. The only issue in a food product liability case is the defectiveness of the food product, not the manufacturer's conduct in somehow allowing the defect to arise. As a result, proof of negligence is not required to recover damages.

So goes the Black Knight:

As I tell my friends in the food industry - "Prevention is the only Protection."  So says William, lawyer in Seattle.

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Alan J. Liddle of Nation's Restaurant News reports this afternoon that the number of people with confirmed cases of shigella illness associated with a franchised Subway restaurant here has climbed to 78, with 11 of those individuals requiring hospitalization with one still hospitalized.  He goes on:

In a related development, the Seattle-based law firm of Marler Clark, in conjunction with Newland, Newland and Newland of Arlington Heights, Ill., has filed three lawsuits against the owner of the Lombard Subway at 1009 E. Roosevelt Road on behalf of people allegedly sickened after eating at the restaurant.

Public health officials said shigella is spread through fecal contamination and that most people who are infected with the toxindevelop gastrointestinal illness, such as diarrhea, vomiting, fever and stomach cramps, one to two days after being exposed. Some people, especially young children and the elderly, may require hospitalizations and severe infections with high fevers can be associated with seizures in children younger than 2 years old.

DuPage County officials first publicized the outbreak March 4, when the number of confirmed shigella cases stood at eight. They said then that consumers should contact their physician if they had developed diarrheal illness 12 hours to four days after eating at the Subway store between Feb. 24 and March 1.

The lawsuits filed by Marler Clark and Newland, Newland & Newland in the Circuit Court of the 18th Judicial Circuit in DuPage County accuse the Lombard restaurant's operator, Neel Subway Inc., of being negligent in allegedly selling adulterated food or drink in breach of implied and expressed warranties. The suits seek unspecified compensation for actual, consequential and incidental damages tied to the illnesses suffered by the plaintiffs, which include three adults and a child.

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The Senate Agriculture Committee scrapped an earlier version of the Wisconsin Raw Milk Bill (see earlier post) and has instituted what I see as an appropriate compromise (if I do not say so myself) that includes warnings, registration, inspection and testing. The committee also stripped a provision sought by raw milk farmers that would have given them immunity from civil liability from any customers that they might have injured because of contaminated raw milk.

A positive day for public health, consumers and raw milk farmers. See full Bill below:

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The Chicago-area Subway that has been linked to over 50 Shigella illness has been hit once again by a customer's lawsuit.

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This Assembly Bill - 628 - is the same as Senate Bill 434.  It should fail for the same reasons as I posted below.  Here is the full Assembly Bill:

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Although I agree that consumers should be able to buy raw milk from a well-regulated, inspected farm - "know your farmer" - like what is done in California and Washington presently.  However, I believe that the law needs a warning that is much more stringent than the law now envisions.  I think this is what should be posted on the farm and the raw milk container:

"WARNING: This product has not been pasteurized and may contain harmful bacteria (not limited to E. coli O157:H7, Campylobacter, Listeria and Salmonella). Pregnant women, infants, children, the elderly and persons with lowered resistance to disease (immune compromised) have the highest risk of harm, which includes Diarrhea, Vomiting, Fever, Dehydration, Hemolytic Uremic Syndrome, Guillain-Barre Syndrome, Reactive Arthritis, Irritable Bowel Syndrome, Miscarriage, or Death, from use of this product."

Finally, why should raw milk be treated differently than pasteurized milk, hamburger or peanut butter?  Why should a raw milk farmer be immune from liability, but a pasteurized dairy be subject to my ability to sue them on behalf of an injured consumer?  If the farmer wants to argue that the consumer is at fault for consuming a product that may well be contaminated, that farmer can presently raise that defense under our civil law.  If food is sold that is contaminated the manufacturer - whether Cargill or Farmer Bob - needs to be responsible to the customer.  Raw milk outbreaks have happened and have caused extensive damages.  Those victims should not be left with thousands or millions of dollars in damages because the product they consumed was raw milk.  This is a bad bill as written.  It should not pass as is.

Here is the full Senate Bill 434:

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