Marler Blog - Providing commentary on food poisoning outbreaks & litigation

The facts of this most unfortunate incident are well known to you, your client, your insured, and the people who became ill. It was covered well by the local media. However, the report issued by the Macomb County Health Department on May 1, 2002 sets forth the facts as a jury will hear them.

Of note, the illnesses were "associated with the consumption of cannolis and cassata cake from Black Forest Cakes and Pastries."

Laboratory investigation showed that 46 stool cultures tested positive for Salmonella enteritidis as did 4 leftover food samples. Six culture isolates (4 stool specimens and 2 food samples) were sent to the Centers for Disease Control and Prevention (CDC) for phange typing. All 6 isolates were identified as Salmonella enteritidis phange type 8. This was significant because it convincingly shows that the source of the illnesses was the bakery products and that the illness has a common source.

According to the report, during the early spring of this year "an outbreak of Salmonella enteritidis infections resulted in 196 reported ill persons, 24 of which required hospitalization."

This outbreak arises out of Salmonella enteriditis infections that occurred at the Wyndham Anatole Hotel in Dallas, Texas during March and April of 2002. According to Robert Tauxe, of the U.S. Centers for Disease Control, the Wyndham Salmonella outbreak is geographically the largest in history and the first outbreak to involve the residents of all 50 states.

On June 30, 2003, Lake County Health Department (LCHD) received a report from Lake Forest Hospital indicating that a patient was ill with a Salmonella infection. The LCHD immediately contacted the patient and interviewed him, using a questionnaire that is standard for the epidemiological investigation of foodborne illness outbreaks. One of the first things learned by the interviewer was that the patient had recently eaten at the Chili's Grill & Bar in Vernon Hills, Illinois.

According to the Final Reports issued by the State on October 6 and 9, 2000, the outbreak was first noted on July 24 when staff at Children's Hospital notified the City of Milwaukee Health Department regarding a cluster of E. coli O157:H7 cases. Eventually, sixty-four confirmed cases were discovered - 62 linked to the Layton Sizzler and two linked to the Mayfair Sizzler. Dozens of these individuals were hospitalized; four developed HUS and one of those died. In addition to the confirmed cases, the State noted that there were reports of 551 probable cases, and another 122 possible cases.

BJ's Wholesale Club, Inc. ("BJ's") is a membership-only supermarket that offers, according to its website, a "no-frills" environment [that] helps keep prices low. When you walk into a BJ's, you'll find cement floors, open-beamed ceilings, simple shelving - and plenty of savings." What BJ's members are not supposed to find are ground beef products contaminated with E. coli O157:H7. On May 11, 2002, BJ's ground, packaged, and sold several packages of 90% lean ground beef. Lora Langan purchased one of these packages, took it home, and divided the ground beef for two meals. That evening, the Langan family enjoyed hamburgers made with the fresh beef, and on May 14, Lora made meatloaf with the remaining ground beef.

On August 22, 2000, Marion County Health investigators contacted the Oregon Health Department to report that a number of County residents were suffering from E. coli O157:H7. Three days later Wendy's International, Inc voluntarily closed its Salem restaurant. The findings by the Marion Health Department made the link to this Wendy's restaurant clear:

The matched case-control study implicated Wendy's Restaurant at 2375 Commercial Street SE in Salem as the source of this outbreak of E. coli O157:H7 infection. Molecular sub-typing linked the first nine cases to eight additional cases, including one whose only exposure to Wendy's was a [Wendy's] restaurant in Tualatin, Oregon.

Late in the day on Friday, August 29, 2003, staff in the Communicable Disease (CD) section at the St. Clair County Health Department (SCCHD) received a telephone call from Brett Hellinga, a Sangamon County (Illinois) resident, who reported that he, his roommate and fiance (Jamie Eastwood Hellinga), and a friend from Rantoul, Illinois (Katie Reed) had recently traveled to the St. Clair area to attend a wedding in St. Louis. All three were now experiencing bloody diarrhea and had gone to emergency rooms in their respective hometowns for treatment. Laboratory results were pending. CD staff notified the SCCHD Environmental Health section.

On May 12, 2004, the Oregon State Public Health Laboratory identified a cluster of five patients infected with Salmonella Enteritidis (SE). The isolates of these patients stool cultures were found to be genetically indistinguishable through the use of pulsed-field gel electrophoresis (PFGE). The five patients were from four Oregon counties and had onsets of illness ranging from February to April, 2004. Further investigation would lead to documentation of at least 29 patients in 12 states and Canada with matching SE isolates, since at least as far back as September, 2003. After a thorough investigation by local, state, and federal officials, the illnesses were definitively linked to raw almonds distributed by Paramount Farms. The investigation led to the recall of roughly 18 million pounds of Paramount Farms raw almonds.

On June 30, 2002, the USDA Food Safety and Inspection Service ("FSIS") announced the recall of 354,200 pounds of ground beef manufactured at the ConAgra Beef Company ("ConAgra") plant in Greeley, Colorado. According to ConAgra's Vice President Jim Herlihy, "one sample of the product tested positive [for E. coli O157:H7], so what ConAgra did was recall the entire day's production." The contaminated ground beef was produced at the plant on May 31, thirty days prior to the recall, and was distributed nationally to retailers and institutions.

On July 12, the Colorado Department of Public Health and Environment ("CDPHE") disclosed that 17 Colorado residents had been infected with E. coli O157:H7. No source of the infections was identified at the time. Several other cases were subsequently reported in neighboring states. Three days later, on July 15, the Centers for Disease Control and Prevention ("CDC") announced that the strain of E. coli O157:H7 that had infected the 17 sickened individuals was genetically indistinguishable from the strain of the recalled ConAgra beef.

Between early May and early June 2005 the Michigan Department of Community Health (MDCH) identified 11 state residents as being infected with an indistinguishable genetic strain of Salmonella Typhimurium as determined by pulsed field gel electrophoresis (PFGE) analysis. Eight of the cases were reported in children and five of the cases had required hospitalization. Interviews with case patients indicated that all had consumed store brand orange juice from 1 of 2 grocery chains in Michigan in the week before becoming ill. Health investigators at the MDCH and the Michigan Department of Agriculture conducted a product trace back and learned that both store brands were made by the same processor in Florida. The company was identified as the Orchid Island Juice Company.

On September 12, 2005 Public Health Seattle King County received an unusual number of E. coli O157:H7 reports. Case interviews by county investigators subsequently revealed that three unrelated residents of King County and one Pierce County resident had all eaten at the same Olive Garden restaurant in Federal Way on September 1, 2005. All four cases became ill on September 5, and two were hospitalized. Detailed food histories were obtained. The common foods consumed by the four ill individuals were the house salad and fresh parsley used either as a topping or as an ingredient in entrees. Pulsed field gel electrophoresis (PFGE) analysis of isolates obtained from patients' stool cultures was conducted at the Washington Department of Health (WDOH) Public Health Laboratory (PHL). Results showed that all four patients were infected with the same strain of E. coli O157:H7 and shared indistinguishable PFGE patterns derived from restriction by two enzymes. The WDOH PHL assigned state identification number EC472 to the outbreak patterns.

On September 7, 2005 Rebecca O'Donnell, Infection Control Nurse at the Albany Medical Center Hospital, informed Marcia Fabiano at the Albany County Health Department (ACHD) that Erika Boehlke was hospitalized at AMCH with a diagnosis of Hemolytic Uremic Syndrome (HUS). Preliminary laboratory testing of Erika's stool had been conducted at St. Peter's Hospital, and tests were negative for the presence of E. coli O157:H7. Ms. Fabiano arranged for Erika's specimen to be sent to the New York State Department of Health (NYSDH) Wadsworth Center for more definitive testing.

On September 12 Ms. Fabiano spoke with Erika's parents, who were at their daughter's side at the hospital. Mr. and Mrs. Boehlke agreed to be interviewed at the hospital on September 14. Janet Christensen, ACHD staff person, conducted the interview, completing a standardized questionnaire, "E. coli O157:H7 and Shiga-toxin Related Disease Questionnaire." During the interview, investigators learned that on August 26 Erika had consumed a Topps brand quarter pound beef patty cooked on the grill at home. Most of the patties that came in the package of 12 frozen hamburgers had been eaten. Two uncooked patties, however, were still in the Boehlke's freezer. Ms. Christensen said the NYSDOH would want to test the leftover meat for E. coli O157:H7, a test that became critically important the next day when the Wadsworth Center bacteriology lab verbally confirmed to the Albany County Health Department that E. coli O157:H7 had been isolated in Erika's stool specimen. Written confirmation of the positive result would follow on September 21, 2005.

E. coli O157:H7 outbreaks associated with lettuce or spinach, specifically the "pre-washed" and "ready-to-eat" varieties sold under various brand and trade names, are by no means a new phenomenon. In October 2003, 13 residents of a California retirement center were sickened and 2 died after eating E. coli-contaminated "pre-washed" spinach. In September 2003, nearly 40 patrons of a California restaurant chain became ill after eating salads prepared with bagged, "pre-washed" lettuce. In July 2002, over 50 young women were stricken with E. coli at a dance camp after eating "pre-washed" lettuce, leaving several hospitalized and one with life-long kidney damage. The Center for Science in the Public Interest found that, of 225 food-poisoning outbreaks from 1990 to 1998, nearly 20 percent (55 outbreaks) were linked to fresh fruits, vegetables, or salads.

It is clear that the risks associated with E. coli O157:H7 and lettuce were well known to Dole and the industry prior to the 2005 outbreak. For some time prior to the outbreak, the FDA had been aggressively trying to get the industry to address serious deficiencies that were creating a critical risk to consumers. The response by Dole and many of its industry brethren was woefully inadequate.

The Wall Street Journal weighed in today on the FDA's new safety guidelines for prepared produce.

From the article:

Bill Marler, a Seattle lawyer who has sued Dole and other companies over outbreaks related to fresh-cut produce, said the FDA should focus more on outdoor areas, such as ground or surface water, than employee hygiene. "I certainly think that focusing on that is positive to employees and public health, but I'm certainly not convinced that it's the most likely source of outbreaks."

And Caroline Smith DeWaal, food safety director of the advocacy group Center for Science in the Public Interest, said the guidelines aren't sufficient. "FDA's strictly voluntary why-bother approach won't address the myriad hazards showing up on foods and vegetables," she says. "With the growth of imported produce, FDA needs to do more than recommend best practices."

But David Gombas, vice president of technical services at the International Fresh-cut Produce Association, calls the guidelines "thorough," and "practical."

The new 64-page "Guide to Minimize Microbial Food Safety Hazards of Fresh-cut Fruits and Vegetables" makes detailed recommendations for supervising employees and for cleaning and maintaining equipment. For example, it says, hoses that touch the floor shouldn't touch fresh produce, food-contact surfaces or packaging materials and recommends that forklifts and other equipment go through sanitizer baths before entering areas with fresh produce. The FDA also suggested that companies make sure raw products never cross paths or mingle with finished fresh-cut produce. And, noting that cantaloupe, mangoes, tomatoes and some other types of produce are at risk if warm produce is placed in cooler water -- because that tends to pull water, and possible pathogens, into the fruit or vegetable -- it suggests cooling produce before immersion.

On March 1, 2006, the Food and Drug Administration (FDA) issued additional Guidelines "for the Safe Production of Fresh-Cut Fruits and Vegetables." This seems to have been prompted by the August 2005 outbreak of E. coli O157:H7 infections of some thirty people, including children, who ate DOLE bagged, pre-washed lettuce. At least 245,000 bags of lettuce were recalled across the country. In that outbreak alone, eight were hospitalized, and one child developed acute kidney failure, all from eating bagged, "pre-washed" lettuce. However, this is not the first time the FDA has warned this industry, with sales nearing $4 billion annually, to clean up its act.

In 1998 the FDA published a "guide to Minimize Microbial Food Safety Hazards for Fruit and Vegetables." In 2004 the FDA sent a letter to the lettuce and tomato industry to "make them aware of [FDA's] concerns regarding continuing outbreaks and to encourage the industries to review their practices." All of these concerns by the FDA were prompted by fifty-five outbreaks tied to fresh fruits and vegetables between 1990 and 1998.

There have been more. A few examples:

In 2004, 13 residents of a California retirement center were sickened and 2 died after eating E. coli-contaminated "pre-washed" spinach.

In September 2003, nearly forty patrons of a California restaurant chain became ill after eating salads prepared with bagged, "pre-washed" lettuce. Dozens were hospitalized and several developed life-threatening kidney failure.

In July 2002, over fifty young women were stricken with E. coli at a dance camp after eating "pre-washed" lettuce, leaving several hospitalized, and one with life-long kidney damage.

Following these lettuce-related outbreaks, the FDA issued a stern warning to the industry "to reiterate our concerns and to strongly encourage firms in your industry to review their current operations." In this letter, the FDA cited research linking some or all of the outbreaks to sewage exposure, animal waste, and other contaminated water sources. Now in 2006, the FDA asks the industry to address concerns about employee infectious disease as a possible contributing factor in these outbreaks. Will the industry listen? Will the industry clean up its act and stop poisoning its customers? Will the industry put me out of business?

I am a trial lawyer who has built a practice on food pathogens. Since the Jack in the Box E. coli outbreak in 1993, I have represented hundreds of families who were devastated for doing what we do every day - eating food. This may prompt some readers to consider me a blood-sucking ambulance chaser who exploits other people's personal tragedies.

If that is the case, here is my plea:

Put me out of business, please.

For this trial lawyer, E. coli has been a far too successful practice - and a heart-breaking one. I am tired of visiting with horribly sick kids who did not have to be sick in the first place. I am outraged with a food industry that allows E. coli and other poisons to reach consumers. So, stop making kids sick and I will happily move on. Here is how:

Use common sense - stop using water that is contaminated with cattle and human feces to irrigate. Wash fresh fruits and vegetables. Provide workers in the fields and factories with adequate restroom and hand-washing facilities, and if they are ill with an infectious disease, do not let them work. These simple, common sense steps are good for your customers and good for your business.

None of this will stop E. coli entirely. This microscopic poison has been around a long time and is bound to pop up again. But these steps will help make our food supply safer, and will enable us to keep our most vulnerable citizens - kids and seniors - out of harm's way.

And, with a little luck, it will force one damn trial lawyer to find another line of work.