Marler Blog - Providing commentary on food poisoning outbreaks & litigation

I-884, the Education Trust Fund Initiative, raises the sales tax from 6.5 to 7.5%. Sure, no one likes taxes, but there are times when we really need to invest in our kids' future, and that time is now. The Trust Fund creates 10,000 high-quality preschool places, so poor kids get a good start. In kindergarten through high school, the Trust Fund helps reduce class size, increase teacher pay - specifically those who become board certified or who teach in math and science. The Trust Fund also creates 32,000 more places in our community colleges and universities, so quality students are not turned away. The Trust Fund expands finanical aid and increases the scholarships from the top 15% to the top 30% of high school graduates, so they can afford to attend. Finally, the Trust Fund invests in university based research that will generate new businesses and jobs. It is time for us to stop just "talking the talk" about education being the key to our future and "walk the walk" by stepping up and investing a penny for education.

Bill Marler

The Wall Street Journal article "McDonald's Callousness Was Real Issue, Jurors Say, In Case of Burned Woman" sheds some much-needed light on the McDonald's coffee case.

When a law firm here found itself defending McDonald's Corp. in a suit last year that claimed the company served dangerously hot coffee, it hired a law student to take temperatures at other local restaurants for comparison.

After dutifully slipping a thermometer into steaming cups and mugs all over the city, Danny Jarrett found that none came closer than about 20 degrees to the temperature at which McDonald's coffee is poured, about 180 degrees.

Despite these findings, McDonald's refused to settle out of court. Apparently, they didn't think a jury would "punish a company for serving coffee the way customers like it." And at first, that's how jurists felt. Then they learned the facts.

What the jury didn't realize initially was the severity of her burns. Told during the trial of Mrs. Liebeck's seven days in the hospital and her skin grafts, and shown gruesome photographs, jurors began taking the matter more seriously. "It made me come home and tell my wife and daughters don't drink coffee in the car, at least not hot," says juror Jack Elliott.

Even more eye-opening was the revelation that McDonald's had seen such injuries many times before. Company documents showed that in the past decade McDonald's had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.

In a Pittsburgh Post-Gazette story Tomato supplier for Sheetz ceases operations, blames bad publicity, Joe Fahy and Jerome Sherman reported today that Coronet Foods, tomato distributer for sandwiches sold at Sheetz convenience stores, was ceasing operations today at its plant in Wheeling, West Virginia, leaving 220 workers without jobs. The company blames its going out of business on bad publicity from this summer's salmonella outbreak that sickened more than 400 people, about 330 Pennsylvanians and another 80 people in nearby states.

Marler's Seattle-based firm has filed three lawsuits as a result of the outbreak, all targeting Coronet. He said the company's decision to go out of business would not affect the lawsuits.

"Coronet has enough insurance to resolve all the claims," he said. "We're hopeful we can eventually get through this, either by litigation or settlement."

Going to a BBQ? Bring your meat thermometer, The Essential Summer BBQ Accessory.

"The only safe hamburger is one cooked to 160 degrees," says Nancy Donley, president of the nonprofit Safe Tables Our Priority, a food-safety advocacy group. "Research has shown color is not a reliable indicator."

Donley learned about food safety the hard way seven years ago when her 6-year-old son died of HUS from eating an E. coli contaminated hamburger.

What worries Donley is that the E. coli situation may not have improved much, despite a number of well-publicized cases, including a 1993 outbreak linked to undercooked burgers from Jack in the Box restaurants and a spate of 1996 cases linked to Odwalla brand fruit juice.

Donley says that about half the cattle that come in for slaughter have some exposure to E. coli, and that ground meat samples tested by the federal government are turning up higher amounts of bacteria than before -- although this may be because of better testing.

"The slaughterhouse market is relatively unchanged since Sinclair Lewis wrote The Jungle," says Bill Marler, a Seattle attorney who has represented victims of some of the most notorious food poisoning cases of the last decade, including the Jack in the Box and Odwalla cases. He holds this opinion despite the fact that some plants have adopted new Hazard Analysis Critical Control Point (HACCP) quality-control procedures to keep contamination down.

"The concept is great," Marler says. "You look at those particular areas with the potential for contamination and focus on it and deal with it. In reality, it still takes a commitment by the company." Still, he adds, "I think you have got to have oversight in addition to HACCP. You can't let your own industry regulate itself."

As consumers, we can't trust that what we're eating is safe.

Proper cooking is of key importance, but it's not the only thing. Raw meat should be handled very carefully, all the way from the grocery story to the plate.

In the article "A New Day In Court" published in CFO Magazine, Steven L. Mintz writes:

Awards often seem mysterious to Chris Campos, whose Teaneck, New Jersey based CPA firm, Campos & Stratis, investigates product- liability claims on behalf of insurance companies. He finds even favorable outcomes puzzling, when emotions in the jury room overwhelm, or at least temper, the facts. "You're almost shooting craps," he says, noting one Indiana case in which Campos was acting on behalf of an insurer suing a manufacturer to recover damages. His client claimed $2.8 million in damages caused by the manufacturer. "Instead of $2.8 million, they came back with $2.1 million. No one could explain why."

The article goes on to talk about a popular defense attorney opinion that personal injury attorneys tug at jury's heartstrings by pushing punitive awards as a way to "send a message back to the company."

I said:

"I think that a lot of times, company executives are not really thinking of what cases are about," Marler says. Instead, the defense often gripes about attention-grabbing attorneys who yank jurors' heartstrings on the thinnest of pretenses. "They've got to get past that," Marler declares of the company executives and the attorneys on their side. "Jack in the Box poisoned and killed children; a child who survived is going to have long-term kidney problems," he declares, urging that companies accept even the harshest reality if it's the truth. So the right track for companies, Marler says, is to face up to legitimate claims, but stand firm beyond that.

"Fight bogus claims to the death; it doesn't benefit any of us to roll over," he argues. "But when you're caught with your pants down, settle."

Kevin Kelton, a political and humor columnist, wrote an interesting article called The RNC's Latest Political Target: Frivolous Lawsuits for the Washington Dispatch. It begins:

"First thing we do, let's kill all the lawyers." Of course, after Shakespeare wrote that populist sound bite, Sir Francis Bacon took credit for his plays and Hollywood screenwriters took millions to "adapt" his works. Had he known, you think maybe the Bard would have found reason to spare the life of a good copyright lawyer or two?

Kelton goes on to address Republicans and their hypocritical tirades about frivolous lawsuits. As Kelton says, "Everyone loves to hate lawyers until they need them."

It's true; we do live in a litigious society. But trial attorneys are not the sole cause. Our capitalist system by its very nature pits companies against consumers, and the legal process is the only way to level the playing field.

Kelton talks about the exploding Ford Pintos, and how consumer lawsuits were what forced the company to step up and do the right thing. Same goes for dangerous drugs, deadly chemicals, and toxic products.

In those cases, trial lawyers weren't the enemy. They were the heroes. Today, whenever you hear of a defective product recall or a drug that is pulled from the market, you can bet it was a lawsuit (or several lawsuits) that made those companies reluctantly do the responsible thing.

Although Kevin Kelton's article doesn't mention the food industry specifically, it's true that his diatribe also applies to food producers and foodservice providers who poison consumers, and often kill kids, as well as to those "necessary evils" (lawyers like me) who often have to sue before a company steps up and does the right thing.

As Ann Strosnider, reporter for the Kitsap Sun, said in her story Attorney says higher education needs citizen leadership, I told a luncheon gathering of Olympic College supporters Monday that higher education faces a crisis in Washington state, and the state Legislature refuses to show any leadership.

"The stakes are enormous," the Bainbridge Island resident said, and that's why it's so important that citizens take matters into their own hands.

I spoke at the annual community luncheon, kicking off the campaign to raise funds for the Olympic College Foundation. The goal for the 2004-05 school year is to raise $150,000 for scholarships, programs and capital projects.

While the University of Washington and WSU are proud of the high grade-point averages of incoming freshmen, they are actually a barrier for many students.

"This year you had to have a 3.6 gpa to get into WSU or the UW," he said. "If that had been the requirement when I went to WSU, I would not be standing here today. ... College can't be just for the rich and those with a 4.0."

I'm a strong supporter of Initiative 884, which would raise state sales tax by 1 cent to create a $1 billion education trust fund for preschool, kindergarten through high school education and higher education. It would fund an additional 25,000 college and technical school enrollments and extend state Promise Scholarships to the top 30 percent of graduating high school classes.

"We've been pandered to for so long with the story that it's better to keep our money for ourselves," Marler told the gathering. "Now I have to ask, what are you doing to help? Will you show leadership?"

Globe Staff Writer Wally Kennedy has reported that the E. coli outbreak that hit a Joplin day-care center in May and June, affecting as many as 26 children, has generated its first lawsuit.

My firm filed this lawsuit against Kid's Korner Day Care Center last week on behalf of Patricia and Asa Wasden, parents of Ian Wasden, a 2-year-old boy who suffered from hemolytic uremic syndrome after contracting the E. coli bacteria in June. Health officials instructed the managers of Kid's Korner to notify the families of all children enrolled there of the outbreak to prevent illnesses, but the Wasdens never received notification from the center.

It wasn't until June 1, the date that Ian Wasden fell ill with symptoms related to his E. coli infection, that his parents learned about the outbreak.

Drew Falkenstein, a lawyer with Marler Clark in Seattle, said Wednesday in a telephone interview: "The day-care center was responsible for our client's E. coli infection under the facts that have been revealed.

"Where it came from, the mode of transmission into the day care, we are not sure. But, we do know our client's parents were not informed of the outbreak, and they are responsible for that and the child's subsequent infection."

Falkenstein said Ian Wasden was hospitalized for nearly three weeks, and that he went through a full week of kidney dialysis, seven blood transfusions, three surgeries and a severe case of pancreatitis.