Marler Blog - Providing commentary on food poisoning outbreaks & litigation

According to United Press International customers remain leery because the Spinach E. coli outbreak, which killed three (possibly as many as 5) people and sickened at least 200 others.

U.S. sales of fresh packaged spinach remain way down four months after an E. coli outbreak ended, a fresh-food market researcher reported. Packaged spinach sales were down 37 percent the week ended Dec. 23, compared with the same period a year earlier, to $976,699, the Perishables Group of West Dundee, Ill., said. Bulk spinach sales, a smaller market, were off 22 percent. Sales of packaged salads that contain spinach are down 28 percent year-over-year to $1.4 million, it said.

Tainted Spinach May Be Responsible

Family members of two elderly women -- one from Washington and another in Maryland -- said spinach tainted with E. coli may be at least partly responsible.  The Food and Drug Administration and Centers for Disease Control are investigating the deaths.

If confirmed, the cases would bring the number killed as a result of the E. coli outbreak from three to five. Many others were sickened, but recovered.  Officials said 83-year-old Betty Howard of Richland, Wash., died Friday, five months after being hospitalized after eating spinach.  Howard's family said the woman actually died of heart failure. But the family's attorney, William Marler, said the woman's body began giving out only after she fell ill from tainted spinach.

Marler, who is representing more than 90 of the E. coli victims, said Dole has paid all of the out-of-pocket medical expenses for his clients who were hospitalized, including Howard.

The second recent death being investigated is 86-year-old June Dunning.  Health officials said Dunning, who died in September, tested positive for E. coli. However, the sample that tested positive was lost.  But Dunning's family members said they have other proof: a half-eaten bag of pre-washed Dole baby spinach with the same use-by date and lot number implicated in the outbreak. They said they have handed it over to the CDC but still have not received any test results.

However, it appears that Dole and Earthbound Farm/Natural Selection Foods are probably going to be paying a lot more money than that. Marler said he has filed eight lawsuits in six states.  Earthbound Farm/Natural Selection Foods opted not to comment on the deaths, citing pending legal action.

An E. coli outbreak last year sickened about 81 people who had eaten at Taco John’s restaurants in Austin, Albert Lea and Cedar Falls, Iowa, in November and December. Among those sickened, 26 were hospitalized.

Tim Engstrom, managing editor of the Albert Lea Tribune and I spoke last week about the Taco John's lawsuit specifically and food safety in general.  Here are a few excerpts from the story - Lawsuit: Restaurant must provide safe food

Albert Lea resident Julie Johnson is suing the owners of Taco John’s in Albert Lea and not the restaurant’s distributor of produce or others up the line because of laws regarding strict liability, said her lawyer, Bill Marler of Seattle, in an interview with the Tribune.

“It is their responsibility to provide safe, wholesome food to their customers,” Marler said. “They are the ones who invite customers in to eat their food.”

Under strict liability law, anyone who makes a product — whether it is a taco or an automobile — is responsible for that product, even if something in it — such as lettuce in the taco or tires on an automobile — turns out faulty, Marler said.

It doesn’t mean, he added, that local owners can’t turn around and seek to recover their losses through the companies up the chain of distribution. Sometimes they do that in the form of a simple request and sometimes the owners bring them into the existing lawsuit.

It’s not unheard of in these cases, Marler said, for the owners of the restaurant to seek not only direct cost of lawsuits and discarded products but also the lost revenue from a decline in customers.

“I’m a strong believer that restaurants need to be more proactive in who their supplier is,” Marler said. “Once that product gets in that restaurant, it is too late to do anything about it.”

Marler has made a career on litigating food-borne illnesses and has represented people against Chili’s, Chi-Chi’s, ConAgra, Dole, KFC, Supervalu and Wendy’s, among others. He was part of the infamous Jack in the Box lawsuit of 1993. He also has been part of many cases concerning contaminated water. He speaks to food industry groups, public health organizations and fair associations about safety and avoiding litigation.

Marler said there has been a reduction in cases for E. coli outbreaks in meat because the major food retailers — McDonald’s, Wal-Mart and others — became stricter with their suppliers. As a result, meat packers began testing more.

“And guess what? It worked,” Marler said.

It seems that hardly a week passes without a warning from a health department somewhere that an infected food handler is the source of yet another potential hepatitis A outbreak. Absent vaccinations of food handlers, combined with an effective and rigorous hand washing policy, there will continue to be more hepatitis A outbreaks. It is time for health departments across the country to require vaccinations of foodservice workers, especially those that serve the very young and the elderly.  Over the last several years, I have brought Hepatitis A claims against Carl's Jr., Chi-Chi's, D'Angelo's, Friendly's, Maple Lawn Dairy, McDonald's, Quizno's, Silver Grill Location Catering and Subway.

The Centers for Disease Control (CDC) estimates that 83,000 cases of hepatitis A occur in the United States every year, and that many of these cases are related to foodborne transmission. In 1999, over 10,000 people were hospitalized due to hepatitis A infections and 83 people died. In 2003, 650 people became sickened, 4 died and nearly 10,000 people got Ig shots after eating at a Pennsylvania restaurant. Not only do customers get sick, but businesses lose customers or some simply go out of business.

Hepatitis A continues to be one of the most frequently reported, vaccine-preventable diseases in the United States, despite the FDA-approval of hepatitis A vaccine in 1995. Widespread vaccination of appropriate susceptible populations would substantially lower disease incidence and potentially eliminate indigenous transmission of hepatitis A infections. Vaccinations cost about $50. The major economic reason that these preventative shots have not been used is because of the high turnover rate of foodservice employees. The argument is that why should I vaccinate my employee only to have them leave in a few months to another restaurant? That argument disappears, and eating out becomes a whole lot less of a gamble, if all foodservice workers faced the same requirement.

According to the CDC, the costs associated with hepatitis A are substantial. Between 11% and 22% of persons who have hepatitis A are hospitalized. Adults who become ill lose an average of 27 days of work. Health departments incur substantial costs in providing post-exposure prophylaxis to an average of 11 contacts per case. Average costs (direct and indirect) of hepatitis A range from $1,817 to $2,459 per case for adults and from $433 to $1,492 per case for children less than 18 years of age. In 1989, the estimated annual direct and indirect costs of hepatitis A in the United States were more than $200 million, equivalent to more than $300 million in 1997 dollars.

From this moning's Kane County Chronicle

Hep A shots continue, lawsuit in works

On Thursday, the Seattle-based law firm Marler Clark said in a release that they would be filing a class-action lawsuit against the restaurant on behalf of Geneva resident Rebecca Johnson and her family.

People who ate at the restaurant between Jan. 8 and Jan. 19, especially those who ordered drinks with ice, should call the health department hotline at (630) 444-3300. The department set up a clinic that runs from 7:30 a.m. to 7 p.m. It started Monday and ends Feb. 2 at 1330 N. Highland Ave., Aurora.

Department spokesman Tom Schlueter said that, as 3 p.m. Thursday, the department had given 2,335 shots of immunoglobulin and returned 1,001 calls from the hotline.

According to Jacob Adelman of the Associated Press, State Sen. Dean Florez, D-Shafter, is butting heads with farmers over proposed regulations. The regulations would:

1. force growers to protect their crops by monitoring water quality
2. restrict wild animals from farm areas
3. call for a system to track produce from fields to store shelves
4. ban the use of manure as fertilizer and reclaimed water for irrigation

According to the AP, the new regulations promoted by Florez would be tougher and more precisely worded than the current state guidelines that urge growers to be mindful of bacteria sources but specify no punishment for problems. Florez wants the state to allocate as much as $25 million to pay for government inspectors who will have the authority to quarantine fields that violate the regulations.

Unfortunately, the legislation is proving to be a hard sell to state farmers who could have their crops condemned if they're caught violating its rules.

The Western Growers Association, is preparing a self-regulating scheme to head off Florez. Their plan would require handlers and shippers to buy from growers who can show they protected crops against E. coli and other contamination.

"We're the guys who understand our business and what needs to be done," said Imperial Valley spinach and lettuce farmer Jack Vessey, who supports the industry-led approach.

Of course the industry hasn't done a thing over the last ten years and twenty-one outbreaks to solve the problem, so why should we believe them now?

From USA Today:

Some farmers are leery of having state laws govern them and would rather set the rules themselves, said Jasper Hempel, general counsel for the Western Growers Association, which has more than 3,000 members in the fruit and vegetable industry.

Some California legislators say the safety standards should be set by the state. "Should our health and safety standards be in the hands of an industry that has been the source of so many contaminations in the past?" asks Democratic state Sen. Dean Florez.

Consumer groups fear that the rules will be hammered out behind closed doors with little input from the public. "Industry self-regulation seldom protects consumers and often provides industry with cover when contamination occurs," said Elisa Odabashian, director of the West Coast office of Consumers Union, which publishes Consumer Reports.

The real question is whether any of these standards will really make food safer, says Doug Powell, a professor of food safety at Kansas State University in Manhattan. Simply following current guidelines known as Good Agricultural Practices, such as providing field workers with portable toilets and testing irrigation and produce wash water for E. coli, would go a long way toward making food safer, he says. "Every farmer has to create a culture that values food safety on each and every farm," Powell says.

AP this morning noted:

Some members of the industry said they want even stronger regulations than those in the marketing agreement. which covers California produce companies.

"It quite frankly needs to be done on a federal level and on a mandatory level because that's what the public needs to hear," said Steve Dickstein, a spokesman for Irwindale-based Ready Pac Produce.

The United Fresh Produce Association, which represents growers nationwide, has asked the U.S. Food and Drug Administration to institute federal produce-handling standards.

E. coli O157:H7 is one of hundreds of strains of the bacterium Escherichia coli.^[1] Most strains of E. coli are harmless and live as normal flora in the intestines of healthy humans and animal.^[2]  The E. coli bacterium is among the most extensively studied microorganism.^[3] The combination of letters and numbers in the name of the E. coli O157:H7 refers to the specific markers found on its surface and distinguishes it from other types of E. coli.^[4]  The testing done to distinguish E. coli O157:H7 from its other E. coli counterparts is called serotyping^.[5]  Pulsed-field gel electrophoresis (“PFGE”),^[6]sometimes also referred to as genetic fingerprinting, is used to compare E. coli O157:H7 isolates to determine if the strains are distinguishable.^[7]

E. coli O157:H7 was first recognized as a pathogen in 1982 during an investigation into an outbreak of hemorrhagic colitis^[8]associated with consumption of hamburgers from a fast food chain restaurant.^[9] Retrospective examination of more than three thousand E. coli culturesobtained between 1973 and 1982 found only one isolationwith serotype O157:H7, and that was a casein 1975.^[10]  In the ten years that followed there were approximately thirty outbreaks recorded in the United States.^[11] This number is likely misleading, however, because E. coli O157:H7 infections did not become a reportable disease in any state until 1987 when Washington became the first state to mandate its reporting.^[12]  As a result, only the most geographically concentrated outbreak would have garnered enough notice to prompt further investigation.^[13]

The virulence of E. coli O157:H7 is a result of its ability to produce Shiga-like toxins.^[14]  It has been theorized that generic E. coli picked up this deadly ability through horizontal transfer of virulence genes from the Shigella bacteria.^[15] Genome sequencing of E. coli O157:H7 has since confirmed that gene transfer did in fact occur, and that the evolution of ever more virulent forms of bacteria will likely continue to occur.^[16] The prospect of emerging pathogens as a significant public health threat has been emphasized by the CDC for some time.^[17]

Foods of a bovine origin are the most common cause of both outbreaks and sporadic cases of E. coli O157:H7 infections.^[18] Surveys performed on feed lots have demonstrated that cattle can be infected with E. coli O157:H7 through close contact, and under muddy conditions.^[19]  The prevalence of E. coli O157:H7 among cattle in these feed lots can reach 63-100%, especially during the summer.^[20] The prevalence of E. coli O157:H7 in the summer, which is when outdoor grilling of hamburgers becomes most common, is a significant public safety risk.

According to a recent study, an “estimated 73,480 illnesses due to E. coli O157:H7 infections occur each year in the United States, leading to an estimated 2,168 hospitalizations and sixty-one deaths annually.”^[21]  The hemorrhagic colitis caused by E. coli O157:H7 is characterized by severe abdominal cramps, diarrhea that typically turns bloody within twenty-four hours, and sometimes fever.^[22] The typical incubation period—which is to say the time from exposure to the onset of symptoms—in outbreaks is usually reported as three to eight days.^[23]  Infection can occur in people of all ages but is most common in children.^[24]  The duration of an uncomplicated illness can range from one to twelve days.^[25]  In reported outbreaks, the rate of death is 0-2%, with rates running as high as 16-35% in outbreaks involving the elderly, like those at nursing homes.^[26]

What makes E. coli O157:H7 truly and decidedly deadly is its very low infectious dose,^[27] and how relatively difficult it is to kill these bacteria.^[28]  Unlike Salmonella, for example, which usually requires something approximating an “egregious food handling error, E. coli O157:H7 in ground beef that is only slightly undercooked can result in infection.”^[29]  As few as twenty organisms have been said to be sufficient to infect a person and, as a result, possibly kill them.^[30] And unlike generic E. coli, the O157:H7 serotype multiplies at temperatures up to 44° Fahrenheit, survives freezing and thawing, is heat resistant, grows at temperatures up to 111° Fahrenheit, resists drying, and can survive exposure to acidic environments.^[31]

And, finally, to make it even more of a dangerous threat, E. coli O157:H7 bacteria are easily transmitted by person-to-person contact.^[32]  There is also the serious risk of cross-contamination between raw meat and other food items intended to be eaten without cooking.Indeed, a principle and consistent criticism of the USDA E. coli O157:H7 policy is the fact that it has failed to focus on the risks of cross-contamination versus that posed by so-called improper cooking.^[33]  With this pathogen, there is ultimately no real margin of error, and the cost of error can be death.  It is for this precise reason that the USDA has repeatedly rejected calls from the meat industry to hold consumers responsible for E. coli O157:H7 surviving the cooking process.

Sanford Nax of The Fresno Bee wrote a story last week entitled: Florez gets tough on produce



Senator Dean Florez, D-Shafter has been the only consistent political figure over the last several months focusing on the E. coli crisis in leafy greens grown in California. He held a hearing in October following the Dole spinach E. coli outbreak and was in Monterey a few weeks ago at public meetings with the produce industry. He is correctly focused on public safety, but is also smart enough to help the industry help themselves:

"Where does this leave us?" asked Sen. Dean Florez, D-Shafter, on Monday. "From my perspective, with a very small window to regain confidence in the marketplace. I don't think the leafy green industry will be able to sustain any more crises in confidence."

Florez supports creating buffer zones around dairies and plans within 10 days to introduce legislation that would require more frequent testing of irrigation water, give the state Department of Food and Agriculture full authority to recall produce and increase worker sanitary procedures, among other things.

In one of the oddest quotes in the article Ryan Jacobsen, Fresno County Farm Bureau executive director, said:

"We have by far the safest food supply in the world," he said, adding the Taco John's incident underscores the importance of buying produce grown in the United States. "This is another reason we need a domestic food supply. We can go back and figure out what went wrong. You can't necessarily do that when we go overseas," he said.

Now, that is a spin – I have been doing E. coli-tainted lettuce cases for years and do you know how many have happened because of foreign produced lettuce or spinach – ZERO.

As for where the lettuce came from, it is odd that the health officials will not tell the public where the contamination occurred. What we do know is that in both the Taco Bell and Taco John’s E. coli outbreaks, the lettuce was reported (by LA Times) to have been grown in California. Taco Bell received lettuce from Ready-Mix (who was fired) and Taco Johns received lettuce from Bix (who was fired too). Bix is rumored to have received lettuce from a grower in Buttonwillow, California.  I'm still looking for the lettuce grower in the Taco Bell case.

Rumor has it that one or both of the lettuce growers may have been using liquefied cow manure to irrigate the lettuce that was the cause of the E. coli outbreaks at Taco Johns and Taco Bell.  Ironically, I found some interesting information about dairy herds and their leftovers in the Michigan Daily Telegram article - Environmental impact depends on how well dairy operators follow the rules

Manure and wash water from a large dairy is stored in a lagoon. The liquid mixture of feces, urine, water and sand — sand is used for the cows’ bedding — is then spread on fields as a fertilizer.

“Ultimately, the manure kind of enhances the healthiness of the land, so it becomes more productive,” Conway said.

While manure has long been used as a fertilizer, Woiwode said modern dairy farms and the manure they produce are very different from their forebears. She called modern manure “toxic waste.”

Previously, “the animals would be grazed and the waste would be deposited in fields directly or be deposited on hay and produce a product that would be much more likely to stay on the ground when deposited,” Woiwode said.

Now, the methods and technology are very different.

“When the waste is liquefied, as opposed to being deposited on the ground or mixed with straw and composting as it’s applied to fields, it’s much more readily running into the soil, into the ground water or into the field tiles,” Woiwode said. “It’s not staying where it’s supposed to be.”

I also found an interesting article on salmonella in herds - see here.

Anthony Welsch of KIMT NewsChannel 3 reported on our filing of our third E. coli lawsuit, and first in Minnesota, against Taco Johns.  I was in Albert Lea yesterday meeting with several other clients.  According to Mr. Welsch:

The E. coli outbreak hit about 80 people -- of those, 26 were sent to the hospital. There were no deaths. Health officials say contaminated lettuce from California was the source of the E. coli.

Late Wednesday afternoon, Julie Johnson from Albert Lea filed suit on behalf of herself and her three year old son Mitchell. She says they were both sick and suffered because of contaminated lettuce. Her attorney says Taco Johns is to blame.

“Taco Johns has complete responsibility, regardless of negligence, regardless if they’re a good company or a bad company. They have a responsibility to their customer,” Bill Marler, her Seattle based attorney told KIMT NewsChannel 3 in an exclusive interview.  Marler contends Taco Johns has a moral responsibility to make sure the product they sell is fit for its use. In this case, he says the tacos they sell should be safe to eat.

Marler is also representing about a dozen other people who were hit by the same E. coli outbreak and has a reputation for spear-heading similar lawsuits. In the early ‘90s he was on the fore-front of the Jack in the Box hamburger lawsuits.  The E. coli strain that was in the Taco Johns lettuce could have killed people -- but the attorney says even those like the Johnson’s who were “lucky” and didn’t have to be hospitalized still went through a lot of pain.

“This is not us trying to make a quick buck for a tummy ache. That’s not what this is at all,” he said.

The weather in Albert Lea yesterday was:

The FDA has reported that the location of the farm in Bakersfield where the lettuce was grown is next to a dairy farm that has tested positive for the same genetic strain of E. coli that sickened the folks who ate at Taco Johns.

Law.com reprinted an AP story about our client:

A Minnesota woman and her son have filed a lawsuit against Taco John's after they became ill after eating food tainted with E. coli from the restaurant last year.  The lawsuit was the first of its kind in Minnesota related to the infection of at least 33 state residents who became ill in November and December after eating at Taco John's restaurants, according to the company and the lawyer who brought the case.

Seattle-based William D. Marler has filed two other lawsuits on behalf of people who ate tainted food at Taco John's restaurants in Iowa and Minnesota. He filed them last month in Waterloo and Cedar Rapids in Iowa.

The E. coli outbreak last year sickened about 81 people who had eaten at Taco John's restaurants in Minnesota and Iowa in November and December. Among those sickened, 26 were hospitalized. There were no deaths.Health officials have said contaminated California-grown lettuce was the possible source of the E. coli found at the Cheyenne, Wyo.-based company's restaurants.

Taco John's spokesman Brian Dixon said Thursday he could not comment on the specifics of the lawsuit since the company had not been formally served with it.  He said the company's focus at the moment was trying to determine exactly how its customers were sickened. "We will not rest until we get it resolved," he said.

I might be able to help here - the contamination has been traced to a lettuce farm near Bakersfield, California which was quite close to a dairy farm where the same E. coli strain was found.  There are rumors, not yet confirmed, that liquefied cattle manure might have been used to irrigate the lettuce.

An Albert Lea woman and her son filed a lawsuit Wednesday against Taco John's after they became ill after eating food tainted with E. coli from the restaurant last year.

The lawsuit was the first of its kind in Minnesota related to the infection of at least 33 state residents who became ill in November and December after eating at Taco John's restaurants, according to the company and the lawyer who brought the case.

Seattle-based William D. Marler has filed two other lawsuits on behalf of people who ate tainted food at Taco John's restaurants in Iowa and Minnesota. He filed them last month in Waterloo and Cedar Rapids in Iowa.

The E. coli outbreak last year sickened about 81 people who had eaten at Taco John's restaurants in Minnesota and Iowa in November and December. Among those sickened, 26 were hospitalized. There were no deaths.

Health officials have said contaminated California-grown lettuce was the possible source of the E. coli at the Cheyenne, Wyo.-based company.

On Thursday I will be speaking at the Minnesota Environmental Health Association (MEHA) on "Liability of Environmental Health Professionals for Alleged Negligent Inspections."  See the PowerPoint below:

I will also be filing another E. coli lawsuit against Taco Johns - this time in Minnesota on behalf of an Albert Lea family.  For more information on the status of the Taco John's litigation see the link below:

Third E. coli Lawsuit Filed against Taco John’s by E. coli Lawyer

ALBERT LEA, MN (January 16, 2006) – On Thursday, Seattle-based Marler Clark (www.marlerclark.com) filed its third lawsuit on behalf of a victim of last year’s E. coli O157:H7 outbreak traced to Taco John’s restaurants in Iowa and Minnesota. The lawsuit was filed against Taco John’s in Minnesota state court in Albert Lea on behalf of Albert Lea resident Julie Johnson and her young son, Mitchell. Mitchell is one of at least 33 Minnesota residents who became ill with E. coli infections after eating contaminated food at Taco John’s restaurants in late November and early December, 2006.

On the heels of investigations into other large E. coli outbreaks traced to California produce, the Food and Drug Administration announced that investigators from FDA and the state of California, working in conjunction with state health officials in Minnesota, Iowa, and Wisconsin, had isolated the Taco John’s outbreak strain of E. coli from dairy farms near California’s Central Valley on January 12.

“It’s time for restaurants to demand more stringent safety standards on the part of their fresh produce suppliers,” said William Marler, attorney for Ms. Johnson. “Taco John’s and companies like Taco Bell need to use their purchasing power as an influence for industry change. This could become a classic economics lesson in supply and demand.”

Marler, who represents 14 victims of the Taco John’s E. coli outbreak, 20 victims of the Taco Bell E. coli outbreak, and 93 victims of last fall’s outbreak traced to contaminated spinach, is in Minneapolis, and will be speaking at the Minnesota Environmental Health Association’s winter conference at the University of Minnesota’s Continuing Education & Conference Center in St. Paul from 10:00 – 11:30 a.m. on Thursday. His presentation is titled, “How to Sue a Health Department: Understanding the risk of legal liability for negligent inspections and other alleged failures.” He also publishes a blog about foodborne illness litigation, www.marlerblog.com.

BACKGROUND: Marler Clark, (www.marlerclark.com) has extensive experience representing victims of foodborne illnesses. Marler represented Brianne Kiner in her $15.6 million settlement with Jack in the Box in 1993. In 1998, Marler Clark resolved Odwalla Juice E. coli outbreak cases for five families whose children developed HUS and were severely injured after consuming contaminated apple juice for a reported $12 million. Since that time, Marler Clark has represented thousands of victims of foodborne illness, and has recovered several multi-million dollar settlements for children who developed HUS. The firm also represented over 50 people who became ill with hepatitis A after eating contaminated green onions at a Pennsylvania Chi-Chi’s restaurant in 2003, including one man who received a liver transplant as a result of his hepatitis A infection.

On September 14, 2006 the U.S. Food and Drug Administration (FDA) released a “Warning on Serious Food borne E. coli O157:H7 Outbreak.” The FDA announced that a multi-state outbreak of E. coli O157:H7 that “may be associated with the consumption of produce.” The FDA stated that, “preliminary epidemiological evidence suggest that bagged fresh spinach may be a possible cause of this outbreak.” As of that date, 50 cases of illness had been reported to the Centers for Disease Control and Prevention (CDC), including 8 cases of HUS and 1 death. The impacted states were noted to include Connecticut, Idaho, Indiana, Michigan, New Mexico, Oregon, Utah and Wisconsin.

In the ensuing three weeks, the FDA issued numerous press releases reporting on the expanding size and scope of the outbreak. The releases also followed the FDA as it zeroed in on its conclusion that the source of the outbreak was Dole bagged spinach.

On September 15, the FDA issues an additional press release advising, “people not eat fresh spinach or fresh spinach containing products.” The FDA indicated that 94 cases of illness, including 14 cases of HUS and 1 death were now associated with the outbreak. The outbreak was identified as affecting 20 states. Concurrently, Natural Selection Foods (NSF) recalled all of its products containing spinach with “use by” dates from August 17, 2006 through October 1, 2006. The recall included Dole brand spinach.

New press releases on September 16, 17, 18, 19 updated the number of illness to 131, including 20 cases of HUS, 66 hospitalizations, and 1 death in 21 states. By this time there were two recalls, including the one initiated by NSF.

The FDA and CDC, in conjunction with local and state health agencies across the country continued its investigation of the outbreak. On September 20, the FDA reported that the New Mexico Department of Health had “linked a sample from a package of spinach with the outbreak strain of E. coli O157:H7.” The package had contained spinach eaten by a New Mexico outbreak member before becoming ill. The package of spinach that tested positive was “Dole Baby Spinach, Best if Used by August 30.” At the same time, the FDA indicated that it had no evidence that frozen spinach, canned spinach, or spinach in pre-made meals manufactured by food companies were affected, and announced those products safe to eat.

The following day, September 21, the FDA confirmed that the genetic testing done on the Dole bag in New Mexico was a match to the strain of E. coli O157 that had sickened what was then a reported 157 people across the country. The list of affected states had grown to 23.

On September 22, the FDA announced that the implicated spinach had all been grown in one or more of three counties in California, Monterey, San Benito, and Santa Clara. The FDA was working with the CDC to further narrow the area of implicated spinach. The outbreak had grown to 166 illnesses in 25 states.

On September 24, the FDA announced further laboratory confirmation of the outbreak. The Utah Department of Health and the Salt Lake Valley Health Department reported that another bag of Dole baby spinach had tested positive for the outbreak strain of E. coli O157:H7. The list of victims on that date included 173 illnesses, 27 cases of HUS, 92 hospitalizations and 1 death.

On September 29, the FDA announced its preliminary conclusions regarding the outbreak. The FDA announced that:

…all spinach implicated in the current outbreak has traced back to Natural Selection Foods LLC of San Juan Bautista, California. This determination is based on epidemiological and laboratory evidence obtained by multiple states and coordinated by the [CDC].

The FDA also updated the number of illnesses, and reported on numerous new laboratory findings of the outbreak strain of E. coli O157:H7 in bags of Dole baby spinach.

Over the ensuing 10 days, the FDA continued to update the number of illnesses, as well as the growing number of Dole baby spinach bags that had tested positive for the outbreak strain of E. coli O157:H7. On October 5, the U.S. Department of Justice issued the following press release:

The US Attorney's Office for the Northern District of California announced that agents of the FBI and FDA Office of Criminal Investigations executed two search warrants today on Growers Express in Salinas, CA, and Natural Selection Foods in San Juan Batista, CA, in connection with the September 2006 outbreak of E. coli 0157:H7 that the FDA has traced to spinach grown in the Salinas area…United States Attorney Kevin V. Ryan stated that "I want to reassure the public that there is no indication in this investigation that leaf spinach was deliberately or intentionally contaminated. We are investigating allegations that certain spinach growers and distributors may not have taken all necessary or appropriate steps to ensure that their spinach was safe before it was placed into interstate commerce…

On October 12, the FDA reported that test results from the investigation of the outbreak indicated that environmental samples taken from the implicated fields on four ranches had tested positive for the outbreak strain of E. coli O157:H7. According to the FDA, the four fields were located in Monterey and San Benito counties.

The most recent tally from the FDA included 204 illnesses due to E. coli O157:H7 reported the CDC. This number included 31 cases of HUS, 102 hospitalizations, and 3 deaths. The FDA maintained its conclusion that all the implicated spinach was traced back to NSF. The FDA also reported 13 “confirmed product samples that contain the E. coli O157:H7 outbreak strain.” Each of these products was bagged Dole baby spinach.

Read more about E. coli O157:H7 outbreaks at Marler Clark.  Read more on prior lettuce and spinach-related E. coli O157:H7 outbreaks, specifically the Dole outbreak of 2005 below:

Workers at Arizona Subway Found to Have Hepatitis A

East Valley Tribune Mesa Friday, January 12, 2007 ?- Sarah J. Boggan

On Thursday, health officials in Pinal County said people who ate at a Subway restaurant at 1781 W. Hunt Hwy. from Dec. 10- 23 may have been exposed to hepatitis A. A food handler at the restaurant has been diagnosed with the disease. Symptoms, which may include jaundice, abdominal pain, loss of appetite, fever, diarrhea and nausea, can appear between 15 and 50 days, though they typically appear 28-30 days after exposure. County officials urged people who have symptoms and think they may have been exposed at the restaurant to contact their doctor. "It's to the operator's best interest to ensure that there aren't sick people handling food," said Reg Glos, director of the Pinal County Division of Environmental Health. "We encourage operators to have sick policies to not penalize employees for not working when they're sick."

This is not the first time that Subway has been implicated  in a Hepatitis A  incident.  We represented  over thirty people sickened when an ill worker was allowed to handle food.  The suit was Schuerhoff v. Subway.     We have also been involved in several other Hepatitis A outbreaks - See Marler Clark and Hepatitis A Litigation.  I have been an advocate of requiring all food handlers getting Hepatitis A vaccines prior to handling our food.

According to Kelli Hernandez of the Valdosta Daily Times, 72 cases of Salmonella infection found in Lowndes County. She further reports that:

Following the investigation and interviewing patients infected, 72 cases of Salmonella Montevideo infections with indistinguishable patterns were reported with the onset of gastrointestinal illness between Aug. 21 and Nov. 15, and investigators were able to determine the outbreak strain, according to the report. Of the 72 cases, 19 patients were hospitalized and no deaths were reported, according to the report.

Tad Williams, Environmental Health director for the South Georgia Health District, was notified by investigators that the fast food restaurant Arby’s was considered a possible source for the outbreak.

Investigators found that the restaurant had been closed for remodeling and reopened on Aug. 18, 2006, and was utilizing a brand new meat slicer following the reopening. Nineteen days after the restaurant was identified as the possible source of the outbreak, on Oct. 25, GPHL reported that one of the swab samples collected from the new meat slicer was positive for the Salmonella outbreak strain and the slicer was immediately removed from service. All food items that may have been in contact with the slicer were thrown away and additional food items were collected for testing, according to the report.

We have done dozens of Salmonella cases across the United States and a few in Georgia over the years.  Information on Salmonella and the cases that we have done can be found at www.marlerclark.com.

I'm flying back to Seattle tonight where it is only slightly colder than both the weather and my reception in Monterey this morning.  The hearing today sponsored by the State of California at the Monterey County Fairgrounds was well attended - seems there were at least 200 (about 25 were press).  It was great that hot coffee was provided as heat in the building was not.  Western Growers put forth an ambitious marketing agreement that would "voluntarily require" certain standards (to be determined later) by a board consisting of dozens of producers and one, yes one, possible consumer.  Most seemed to be in agreement that voluntary is better than mandated, although frankly, that rationale was not very clearly articulated.  From my perspective I would think that the "leafy green" industry would want mandatory regulations that were required by all producers in and out of the United States.  Seems like that would create a level playing field for all and safer food too.

I thought I would never get to use this photo again, but the FDA announced that cattle again seem to be the source of the E. coli bacteria that contaminated the lettuce that lead to the Taco John's outbreak.

E. coli outbreak tied to California lettuce
81 sickened at Taco John's in Minnesota, Iowa; dairy farms scrutinized

WASHINGTON - Contaminated California-grown lettuce was the possible source of the E. coli outbreak that sickened 81 people late last year at Taco John’s restaurants in two states, health officials said Friday.

State and federal investigators said they have matched the strain of the bacteria associated with the outbreak to two samples taken from dairy farms in California’s Central Valley. The farms are near lettuce fields, the Food and Drug Administration said.

Investigators continue to study whether bacteria-laden manure from the dairy farms could have contaminated the nearby lettuce-growing areas, the FDA said. The FDA said other sources of contamination were possible.

The outbreak sickened 81 people who had eaten at Taco John’s restaurants in Minnesota and Iowa in November and December. Among those sickened, 26 were hospitalized. There were no deaths.

The Taco John’s outbreak occurred at roughly the same time as a separate and more widely publicized outbreak of food poisoning that sickened 70 patrons of Taco Bell restaurants in the Northeast. Though E. coli-contaminated iceberg lettuce was the likely culprit behind both outbreaks, the two are not thought to be linked.

I posted a request for ideas to present while I am in Washington D.C. to the Foodsafe listserve.  Foodsafe is an industry-supported discussion group to connect those interested in food safety to each other, and to information. The sender is responsible for content. For archives or to unsubscribe from the list, go to http://www.foodsafetyweb.info/foodsafe. For questions or problems, contact the list owner at FOODSAFE-request@LISTS.FOODSAFETYWEB.INFO.

Here were some ideas:

1. Don’t let the Congress get bogged down in the single food safety agency quagmire. However, the Government Accountability Office (GAO) and the National Academy of Sciences have supported it.
2. Place produce (and animal) growing under some food authority (e.g., USDA-APHIS).
3. Make HACCP mandatory for the produce processing industry.
4. Require FDA Risk Assessment for E. coli O157:H7 and Salmonella in produce.
5. Require FDA surveillance of produce with associated recalls.
6. Encourage Congress to seek mandatory post-processing treatment of fresh produce that has been implicated in outbreaks. This could be any effective treatment - irradiation, chemicals, electrolyzed water, etc. Don’t try to make it produce-wide, as regulating before a proven problem is tough and widens the opposition.
7. Get money for research into ways of protecting growing crops from contamination caused by wild animals (birds, deer) or nearby livestock (cattle, hogs, chickens).
8. Get money for research that addresses item #6 above. We need to get the effective interventions rapidly approved for use.
9. The FDA is both significantly under funded in the food area and in the midst of a terrible “brain drain.” Congress needs to fully fund an expansion of FDA’s food activities and urge the Commissioner to try to keep what’s left of the Agency’s institutional knowledge.
10. Avoid writing a law that would allow defendants to argue Federal Preemption - make sure they preserve the private right of action.
11. That they require all those who import food products into the US to have insurance and to consent to jurisdiction of US courts and to accept service of process by certified mail.
12. Traceability in the food supply is something that Congress could and should mandate.

Any other ideas?  Comments?

“From both sides of the valley little streams slipped out of the hill canyons and fell into the bed of the Salinas River. In the winter of wet years the streams ran full-freshet, and they swelled the river until sometimes it raged and boiled, bank full, and then it was a destroyer. The river tore edges of the farm lands and washed whole acres down…”

John Steinbeck, East of Eden

No surprise that the Monterey County Grand Jury found that water is an efficient carrier of E. coli.

“During years of heavy winter rainfall many sloughs, creeks, streams, and other tributaries overflow their banks onto the floodplain depositing contaminated water or material on agricultural land,” the Grand Jury observed.

The county Health Department says feces should be kept off any agricultural floodplain and if not only produce that must be cooked should be grown there.

The Grand Jury says the county Supervisors should fund the necessary floodplain, water, and irrigation water testing to ensure that fresh produce can be grown safely in the Salinas Valley.

Last May, before the big spinach outbreak of ’06, the Grand Jury visited a farm on Santa Rita Creek. “Sheep, horses, pigs, chickens, goats, and cattle were observed on separate parcels of land throughout the survey site,” the Grand Jury reported. “In one instance fecal material was overflowing toward the creek on a parcel containing a pig.”

The Grand Jury’s recommendations, which require responses from both the Monterey County Board of Supervisors and the District Attorney, should remind us all that only effective actions at the local level will ensure safe fresh produce nationally.

Water testing with consequences program laid out by the Grand Jury strikes me as the type of changes that are desperately needed in the Salinas Valley. Funding that program instead of having some advertising agency design some smiley face seal is what is needed and now.

I'm off to Washington D.C. next week to gauge the interest of the new Congress in taking a hard look at Food Safety, specifically, fresh fruits and vegtables, in light of all the recent E. coli outbreaks.  Below is a letter that I had sent to key lawmakers:

During the last four months of 2006, U.S. consumers suffered an epidemic of bacterial contamination in their produce supply. The numbers are staggering. In September, people across the country were struck with the largest E. coli O157:H7 outbreak in history associated with leafy greens. FDA’s official figures reflect 204 confirmed illnesses and three deaths. FDA quickly followed with announcements that two distinct Salmonella outbreaks had been traced to contaminated tomatoes grown in the Southeast and served in restaurants, sickening nearly 400. But there was still more. In early December, several state health departments, along with FDA and CDC, announced another outbreak of E. coli O157:H7. This time, over 70 people were confirmed ill as the result of eating contaminated lettuce in products sold at Taco Bell restaurants. Almost immediately thereafter, it happened again. Nearly 100 more restaurant customers became ill with E. coli O157:H7 infections after consuming lettuce provided at Taco John’s restaurants in Iowa and Minnesota.

Standing alone, the events of the past four months evidence a serious problem. But these outbreaks do not stand alone. In particular, there is a long history of E. coli O157:H7 outbreaks associated with leafy greens. Prior to September’s spinach outbreak, the fresh produce industry and the FDA were aware of what the regular consumer was not aware: that prepackaged spinach and lettuce were potentially risky foods with respect to contamination with E. coli. According to a new article in the New England Journal of Medicine written by Dr. Dennis G. Maki, the latest outbreak is “at least the 26th reported outbreak of E. coli infections that has been traced to contaminated leafy green vegetables since 1993.” FDA counts 20 such outbreaks since 1996, and states “a majority of the outbreaks, including the recent outbreak in September of 2006, traced product back to California, eight of which were from the Salinas Valley.” Among these was an outbreak associated with Salinas Valley spinach that killed two elderly nursing home residents in 2003.

FDA has made past attempts to spur the fresh produce industry into action. In 1998, FDA issued guidance to the industry entitled “Guide to Minimize Microbial FoodSafety Hazards for Fruits and Vegetables.” The guide was specifically designed to assist growers and packers in the implementation of safer manufacturing practices. On February 5, 2004, the FDA issued a letter to the lettuce and tomato industries to “make them aware of [FDA’s] concerns regarding continuing outbreaks associated with these two commodities and to encourage the industries to review their practices.”

Nevertheless, the outbreaks continued, apparently unabated. In the fall of 2005, another E. coli outbreak was traced to lettuce grown in the Salinas Valley, and distributed nationwide. FDA sharpened its rhetoric with growers in its November 2005 “Letter to California Firms that Grow, Pack, Process, or Ship Fresh and Fresh-Cut Lettuce.” Still in the end, FDA was simply “encourage[ing] firms in your industry to review their current operations.”

Encouragement is no longer enough. It is time that growers, producers, manufacturers, restaurants, grocers, and consumers were asked to the table to talk about these ongoing outbreaks and how to prevent them in the future. Congress needs to act now and discuss the following:

- How these recent outbreaks actually happened and what can be done to prevent or limit the next one.
- Increasing funding for university-based research, health department epidemiological surveillance, and prevention of bacterial and viral contamination.
- Pre-consumption bacterial and viral testing of raw food products, especially those where no “kill step” is expected.
- Making mandatory good agricultural and food handling practices.
- The proposal to create a single federal agency charged with ensuring the nation’s food safety, whether the food is grown within the United States or in foreign countries.

It is time for Congress to accept a leadership role and call hearings, not only to explore the reasons for the past months’ outbreaks, but also to help prevent the next one. Congress must reach out to all facets of the produce industry, from “farm to fork,” to consumers who bear the burden of illnesses, and to academics and regulators, to find reasonable, workable solutions to prevent produce-related illnesses. Getting all interested parties at the same table is a start.

As an attorney who has represented hundreds of victims of past produce-related outbreaks, I would like to offer whatever assistance you would find useful in finding solutions to this plague on consumers and farmers. Many of my clients who have suffered acute kidney failure or lost family members to E. coli poisoning would be willing to speak with you directly or at hearings so all can understand the devastation caused by contaminated produce.

I will be in Washington, DC, on Wednesday, January 10, 2007, for the American Association for Justice’s 7th Annual Leaders Forum Legislative Day, and would welcome the opportunity to meet with you in person. Please let me know what I can do to help.

For those who find humor in the pages of the New Yorker, I thought this was good:

It says: "I'm not a lawyer, I'm just drafting."

cattlenetwork.com reported in a recent posting that “Rates Of Foodborne Illness Are Decreasing”

The Center for Disease Control (CDC) reported that rates of foodborne illness and the incidence of pathogens in food declined significantly between the late 1990s and 2005. The incidence rates of infection for major pathogens declined by the following rates: Listeria, 32% Campylobacter, 30% E. coli O157:H7, 29% and Salmonella, 9%.

The decline in the incidence of pathogens found in beef and other meats have been especially dramatic. E. coli O157:H7 in ground beef has declined by 80% since 1999, and Salmonella in ground beef has declined 75% since 1998 (SOURCE: CDC Foodborne Diseases Active Surveillance Network).

I would agree that E. coli illnesses related to hamburger are down - one wonders if my "ambulance chasing" made a difference?

Fred Minnick of QSR wrote today in his 2006 "In Review" about banning trans-fats and E. coli litigation - both of which I enjoy, but trans-fats not in as many locations.

This was one year that operators didn’t necessarily have control over their own fate. Politicians debated banning trans-fats, spinach was contaminated with E. coli, and many brands faced a plethora of litigation.

E. coli was another big headline maker in the QSR segment as Taco Bell and Taco John’s served food contaminated with the virus. Both brands quickly responded to consumer and public concerns with targeted store closures and the temporary removal of green onions from its menu. Taco John’s even paid hospital bills for those inflicted with the illness. Despite their efforts, however, both brands are being sued.

"This latest outbreak is proof that the food industry has not done enough to protect consumers from deadly pathogens like E. coli O157:H7," said William Marler, a food safety advocate who has represented over a thousand victims of E. coli outbreaks. "It is time for Congress to step into the arena and call hearings to explore the causes of recent outbreaks and to help prevent future outbreaks from happening."

It seems as though Congress listened to Marler, who also represented the plaintiffs in the 1993 Jack in the Box case.

"We've just got to go in and have, really, a top-to-bottom look at what is going on," said Rep. Rosa DeLauro, a Connecticut Democrat. The food safety system "appears to have broken down when you have these outbreaks almost every single week."