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

Leaving ConAgra no room to deny the obvious, according to the CDC, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states. To date, three of these patients’ pot pies have yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern. I guess that is more than a “smoking gun,” but a smoking pot pie.

Most people infected with Salmonella develop diarrhea, fever, and abdominal cramps 12–72 hours after infection. Infection is usually diagnosed by culture of a stool sample. The illness usually lasts 4 – 7 days. Although most people recover without treatment, severe infections may occur. Infants, elderly persons, and people with impaired immune systems are more likely than others to develop severe illness. In severe infection, Salmonella spreads from the intestines to the bloodstream and then to other body sites, and death can occur if the person is not treated promptly with antibiotics.

To date we have been contacted by over 100 people who believe they have become ill as a result of eating ConAgra Banquet Pot Pies.  Of those thus far we have been able to confirm nearly 20 as suffering from a Salmonella I 4,[5],12:i:- infection.  Three lawsuits have been filed to date.

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Beef recalls raise concerns about food safety

Jeffrey Gold, AP Business Writer (a.k.a. “E. coli Guy”) interviewed the husband and father of two of my clients in the Topps E. coli case:

‘Food is being pushed out at such a rapid pace to keep up with demand, the product is not as safe as it could be. And we’re risking human life.’
—Keith Goodwin

Topps eventually issued a recall Sept. 25, and then expanded it Sept. 29 to include all frozen patties it had made in the past year—21.7 million pounds—the second-largest beef recall in U.S. history. Much of the meat had already been eaten, however, and illness in at least 40 people in eight states has been linked to the Topps hamburgers.  Keith Goodwin said the victims include his wife and a son, and wondered if the timing of the recall was at fault. He said they ate Topps hamburgers at a family picnic Sept. 15 in upstate New York, more than a week after authorities had evidence that Topps patties were contaminated.

“If the public had been made aware of that, a lot of these illnesses would have been avoided,” said Mr. Goodwin, of Groton, N.Y., who teaches at the town’s elementary school. He said his wife, Kristin, 34, was hospitalized for two days, while his son Lucas, 8, suffered kidney failure and was hospitalized for eight days. “The whole ordeal has been very scary,” Goodwin said.

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Jeff Gold, AP Business Writer in New Jersey, has continued to dig into the complete failure of the “voluntary recall” system to get this E. coli - contaminated Topps hamburger off store shelves. I posted nearly a week ago when reports first surfaced that the product was still being sold a month after Topps issued a recall (and went out of business). So, who is responsible for removing E. coli – contaminated meat off store shelves?  Mr. Gold’s story:

State inspectors find more recalled meat at New Jersey stores

Meat recalled a month ago that could be contaminated with a potentially fatal bacteria was found in seven northern New Jersey stores, state consumer safety officials said Tuesday. Inspectors in the past week have seized 138 boxes of frozen hamburgers made by Topps Meat Co., which issued a nationwide recall on Sept. 29 for 21.7 million pounds of frozen patties.

Greater New York Frozen Food Distribution Co. Inc., of New York, was subpoenaed last week. A spokesman for the company said Tuesday that no meat was delivered after the recall. "The meat was delivered before the recall, on Sept. 10," spokesman Frank Conner said. "We are one of many companies that delivered the meat before the recall. We stopped delivering the meat as soon as we heard about the recall. We have no control over what a grocery store owner does with his stock."

"Recall," that it has been reported that there are at least three "genetic fingerprints" of E. coli O157:H7 (potentially meaning that the contamination at Topps came from multiple sources - at least three) that has been found in ill people and in left over product.  One of those fingerprints was found in a Canadian Meat Plant (now also in bankruptcy) that was the source of both meat to Topps and to the death of one Canadian and the sickening of 44 others this past summer.  It will be interesting if the paperwork and grinding records at Topps allows for the "traceback" of all genetic fingerprints to the source.

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Recalled Pot Pie product:
* Banquet
* Albertson’s (sold at Albertson’s)
* Food Lion (sold at Food Lion)
* Great Value (sold at Wal-Mart)
* Hill Country Fare (sold at HEB)
* Kirkwood (sold at Aldi)
* Kroger (sold at Kroger)
* Meijer (sold at Meijer)
* Western Family (now discontinued; previously sold at a variety of small retailers)

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The numbers keep rising from the CDC. Between January 1, 2007 and October 29, 2007, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (4), California (18), Colorado (9), Connecticut (7), Delaware (5), Florida (2), Georgia (2), Idaho (11), Illinois (7), Indiana (3), Iowa (1), Kansas (4), Kentucky (9), Massachusetts (7), Maryland (7), Maine (2), Michigan (3), Minnesota (7), Missouri (18), Montana (6), Nevada (6), New York (10), North Carolina (2), Ohio (11), Oklahoma (1), Oregon (4), Pennsylvania (18), Tennessee (6), Texas (4), Utah (12), Virginia (9), Vermont (2), Washington (27), Wisconsin (24), Wyoming (3). Their ages range from <1 to 89 years with a median age of 18 years; 51% of ill persons are female. At least 65 people have been hospitalized.

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Bill Marler, guest barfblogger: Suing the church over E. coli O157:H7?

When Nebraska Beef first raised the issue that it intended to sue the Salem Lutheran Church for “mishandling” its E. coli O157:H7 contaminated meat - I laughed. I then calmly tried to respond that the Meat Industry, that makes a profit off of selling “USDA Inspected Meat,” couldn’t blame the consumer if the product actually contains a pathogen that can severely sicken or kill a bunch of nice older ladies at a church supper. What other product in the United States would a manufacturer expect consumers to fix themselves before they used it?

The reply to my calm response was “the consumer should know that meat may contain bacteria and they are told to cook it.” My calmness faded. Think about the little labels on meat that you buy in the store – the ones that tell you to cook the meat to 160 degrees – of course they also say USDA inspected too. However, the labels do not say:

“The USDA inspection means nothing. This product may contain pathogenic bacteria that can severely sicken or kill you and/or your child. Handle this product with extreme care.”

I wonder why the Meat Industry does not want a label like that on your pound of hamburger? It knows that the label is truthful. Do you think it might be concerned that Moms and Dads would stop buying it? The day the industry puts a similar label on hamburger is the day that I will go work for them.

The reality is that the Meat Industry cannot assure the public that the meat we buy is not contaminated. So, instead of finding a way to get cattle feces out of our meat, they blame grandparents (and presumably all the teenagers that work at all the burger joints in America) when children get sick.

Consumers can always do better. However, study after study shows that, despite the CDC estimated 76 million people getting sick every year from food borne illnesses, the American public still has misconceptions and overconfidence in our Nation’s food supply.

According to a study by the Partnership for Food Safety Education, fewer than half of the respondents knew that fresh vegetables and fruits could contain harmful bacteria, and only 25% thought that eggs and dairy products could be contaminated. Most consumers believe that food safety hazards can be seen or smelled. Only 25% of consumers surveyed knew that cooking temperatures were critical to food safety, and even fewer knew that foods should be refrigerated promptly after cooking. Consumers do not expect that things that you cannot see in your food can kill you.

Consumers are being blamed, but most lack the knowledge or tools to properly protect themselves and their children. The FDA has stated, “unlike other pathogens, E. coli O157:H7 has no margin for error. It takes only a microscopic amount to cause serious illness or even death.” Over the last few years our Government and the Meat Industry have repeatedly told the consumer to cook hamburger until there is no pink. Yet, recent university and USDA studies show meat can turn brown before it is actually “done.” Now the consumer is urged to use a thermometer to test the internal temperature of the meat. However, how do you use one, and who really has one?

Many consumers wrongly believe the Government is protecting the food supply. How many times have we heard our Government officials spout “The US food supply is the safest in the world.”

Where is the multi-million dollar ad campaign to convince us of the dangers of hamburger, like we do for tobacco? The USDA’s FightBAC and Thermy education programs are limited, and there are no studies to suggest that they are effective. Most consumers learn about food safety from TV and family members – If your TV viewing habits and family are like mine, these are highly suspect sources of good information.

The bottom line is that you cannot leave the last bacteria “Kill Step” to a grandparent or to a kid in a fast food joint. The industry that makes billions off of selling meat must step up and clean up their mess. They can, and someday will, if I have anything to say about it. That day will come much faster if they start working on it now, and stop blaming the victims.

Jane Genova of Law and More and I have had several conversations about the policy and personal implications to what Jane calls “The Case of the Last Supper Flings Open Pandora Box of Liability Issues.”

And from Curly Dog Blog

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I had a nice chat with Neil Waugh of the Edmonton Sun yesterday about the twisted trail of E. coli from Canada. I am hurt (not really) that he called me a “legal vulture.”

Fallout from 'dirty' Alberta beef plant felt on both sides of the border

According to Mr. Waugh:

Ranchers Beef Ltd. of Balzac collapsed on Aug.15 after company president Tony Martinez reported in a court affidavit that his outfit was "in the midst of a severe liquidity crisis". In other words it was broke. And likely would have stayed that way if the United States Department of Agriculture hadn't blown the whistle on what Ranchers and the feds' controversial Canadian Food Inspection Agency were doing - or apparently NOT doing -last summer. Which might or might not have resulted in the death of "one elderly individual" from E. coli poisoning, another 44 cases in Canada, plus 40 cases with 26 "known hospitalizations" as of last Friday in the U.S.

The above is shocking, however, here is the most ominous part, Ranchers was funded in large part by the Canadian Government:

The company business plan was "developed in the wake of the 2003 BSE crisis," Martinez told the court, as a result of the "near decimation" of the Canadian cattle industry when the U.S. border was closed. And it wasn't just a brainwave of 45 unidentified ranchers plus Sunterra Foods and Picture Butte feedlot kingpin Cor Van Raay. In an attempt to "ameliorate the reliance" on U.S. markets, the Alberta and federal governments "developed policies to encourage construction of Canadian-based meat processing facilities." The feasibility study costs were split between the partners and the Alberta Tories. Then the taxpayers' grease really started to roll. There was a $46.5-million loan from Alberta Treasury Branches, the feds' Business Development Bank and the National Bank of Canada. A $20-million "credit enhancement" from the federal ag department added to the taxpayers' exposure. The Alberta Agricultural Financial Services also kicked in $9.35 million in "credit facilities" so investors could "purchase" company preferred shares.

Now Mr. Waugh tries to hurt my feelings (assuming I actually have any):

And now there are legal vultures hovering over the border planning on following the DNA fingerprints all the way back to the Alberta Tories and their BSE Bingo boondoggle. "We will clearly have to look at additional assets," said Seattle lawyer Bill Marler, who has already filed a class-action suit against Topps. "We're going upstream looking at who supplied the meat," said Marler, who has already collected more than $250 million in food poisoning litigation. "Who owns them and what's their backing."

Hey, do I get to wear a wig when I go to Canada?

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In one of the boldest, yet boneheaded, moves I have ever seen in 15 years of litigating E. coli O157:H7 cases, after we sued it, Nebraska Beef filed a third party complaint against the Salem Lutheran Church of Longville, Minnesota claiming, among other things:

That, upon information and belief, an environmental assessment of the church kitchen and food preparation procedures by the Minnesota Department of Health indicated that there was a high potential of cross-contamination between the ground beef [filled with pathogenic cow shit] and other foods during food preparation.

That, upon information and belief, the damages sustained by the Plaintiff[s], if any, [one died of E. coli-related complications, and one suffered acute kidney failure] are the direct and proximate result of the negligence and/or other fault for tortuous conduct of Third-Party Defendant Salem Lutheran Church.

We have the honor of representing several of the folks and families who were sickened and died in this needless outbreak caused by Nebraska Beef’s E. coli contaminated beef. In late July and early August 2006, the Minnesota Department of Health (MDH) received three E. coli O157:H7 stool isolates from residents of, and visitors to, Longville, Minnesota. Pulsed-field gel electrophoreses (PFGE) patterns for all three were indistinguishable, and the pattern had never been seen before in Minnesota. At the same time, MDH learned of an outbreak of gastrointestinal illnesses among members of the Salem Lutheran Church in Longville. The church had served meals on July 10 and 19, and multiple congregation members subsequently fell ill with cramps and bloody diarrhea.

The MDH opened an epidemiological and environmental health investigation of the three confirmed E. coli O157:H7 illnesses and the church outbreak. MDH obtained the member directory from the church and interviewed parishioners to obtain information concerning their attendance at church events along with a general food and activity history. In addition, an MDH sanitarian visited the Salem Lutheran Church to conduct an environmental assessment of the kitchen where the food for the July 19 meal had been prepared. The Minnesota Department of Agriculture (MDA) contacted local grocery stores and restaurants to obtain information on the type and source of beef products involved.

MDA and MDH learned that ground beef used to make meatballs for the church meal, as well as the ground beef purchased by numerous area restaurants, where others were sickened, was purchased at Tabaka’s Supervalu. On July 17, members of the church had purchased 40 pounds of ground beef from the Supervalu. MDA conducted an on-site inspection at the store on August 7, 2006.

MDA conducted a traceback of the ground beef purchased at the Supervalu and used in the July 19 meal. The store had received approximately 1,900 pounds of chuck rolls from distributor, Interstate Meat on July 10. The majority of the chuck rolls were ground into ground beef at the Supervalu. The Supervalu sold ground beef from the July 10 shipment to three Longville restaurants in the same time period as the sale to church members.

The MDA traceback of the chuck rolls from Interstate Meat revealed that the source of the chuck rolls delivered to the Supervalu was the Nebraska Beef processing plant. In addition to this, the USDA reported that a sample of beef trimmings collected on June 14, 2006 at Nebraska Beef cultured positive for E. coli O157:H7, and that the isolate was indistinguishable by PFGE analysis to the outbreak strain.

Ultimately, MDH concluded that:

• “There was an outbreak of E. coli O157:H7 infections among members of the Longville, Minnesota community.
• Ground beef from Tabaka’s Supervalu was the “source of E. coli O157:H7 for this outbreak.”
• “The isolation of the rare outbreak PFGE subtype of E. coli O157:H7 from a sample of beef trimmings from a USDA-inspected plant in the weeks prior to the outbreak suggests that the chuck rolls that were used to produce the ground beef at the store were likely already contaminated when received by the store.”
• “…records that were available from the Tabaka’s Supervalu and [Interstate Meat] suggested that the ultimate source of the implicated chuck rolls was [Nebraska Beef].

Nebraska Beef sues a church for serving its E. coli contaminated meat (that was also served in restaurants that people were sickened in too) - shame on you Nebraska Beef.

Full disclosure - I was an acolyte in a Lutheran Church growing up.  Not only is there no legal reason for Nebraska Beef to sue the church in this instance - my mom (age 80) and dad (age 78) would have killed me if I had.

From the Wall Street Journal -  Law Blog

From the Minneapolis Start Tribune

Meat plant sues Longville church over E. coli outbreak

State health officials, meanwhile, took genetic samples of the E. coli found in Minnesota victims and sent those to the CDC as well, leading to a match with the Nebraska plant, according to Marler.

"The reality is they cannot hide from the genetic fingerprint that was found at their plant," said Marler. He said he plans to subpoena the USDA to release the genetic fingerprint tying Nebraska Beef to the Longville outbreak.

State epidemiologist Kirk Smith said he also believes that Nebraska Beef was the source, wondering why they would file a lawsuit blaming the church if they weren't.

"If they're not involved in this, why do they care?" he asked.

Case of Volunteer Church Cooks & Alleged Contaminated Meat - Can Blow Up into Landmark Liability Issues

Bill Marler featured in Wall Street Journal Law Blog again

- Continue Reading News Coverage:
Continue Reading...

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When they are mixed together at ConAgra?* (hopefully, people recall the TV ads of a few years ago - "you have chocolate in my peanut butter.")



UPDATE - Between January 1, 2007 and October 29, 2007, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states.  Illnesses began January 2007 and have continued through at least October 2007.

Investigation of Outbreak of Human Infections Caused by Salmonella I 4,[5],12:i:-

Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (4), California (16), Colorado (7), Connecticut (6), Delaware (5), Florida (2), Georgia (2), Idaho (8), Illinois (6), Indiana (3), Kansas (3), Kentucky (8), Massachusetts (6), Maryland (7), Maine (1), Michigan (3), Minnesota (7), Missouri (16), Montana (4), Nevada (6), New York (10), Ohio (10), Oklahoma (1), Oregon (3), Pennsylvania (17), Tennessee (6), Texas (4), Utah (12), Virginia (9), Vermont (2), Washington (17), Wisconsin (23), Wyoming (3). Their ages range from <1 to 87 years with a median age of 20 years; 51% of ill persons are female. At least 50 people have been hospitalized. No deaths have been reported.  State health departments are collecting and testing pot pie products recovered from patients’ homes. To date, one pot pie yielded Salmonella I 4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.



So far, the CDC has reported that the other ConAgra Salmonella outbreak has held fast at 628 cases in 47 States.

Multistate Outbreak of Salmonella Serotype Tennessee Infections Associated with Peanut Butter --- United States, 2006--2007

In November 2006, public health officials at CDC and state health departments detected a substantial increase in the reported incidence of isolates of Salmonella serotype Tennessee. In a multistate case-control study conducted during February 5--13, 2007, illness was strongly associated with consumption of either of two brands (Peter Pan or Great Value) of peanut butter produced at the same plant. Based on these findings, the plant ceased production and recalled both products on February 14, 2007. The outbreak strain of Salmonella Tennessee subsequently was isolated from several opened and unopened jars of Peter Pan and Great Value peanut butter and from two environmental samples obtained from the plant. As of May 22, 2007, a total of 628 persons infected with an outbreak strain of Salmonella serotype Tennessee had been reported from 47 states since August 1, 2006. on February 13, 2007.  Subsequent laboratory testing of leftover peanut butter from patients was performed at state public health laboratories and CDC. Salmonella Tennessee with a PFGE pattern matching one of the outbreak strains was isolated from 21 opened and unopened peanut butter jars with production dates ranging from July 2006 to December 2006.


I am not an owner or stockholder of ConAgra (yet, anyways).  However, if I was, here are a few questions I would ask:

1.  What the hell is going on with food safety and quality assurance?

2.  Why to date have no Salmonella culture positive cases from either outbreak been settled despite spending millions of dollars on legal defense fees?

One other thing, it is clear that the numbers the CDC cites as cases related to Pot Pies (238) and to Peanut Butter (628) are gross undercounts.  According to AC Voetsch, “FoodNet estimate of the burden of illness caused by nontyphoidal Salmonella infections in the United States,”Clinical Infectious Diseases 2004;38 (Suppl 3):S127-34.  The real numbers are some 38.6 times higher, or 9,187 ill in Pot Pies and 24,241 ill in Peanut Butter.

*  I am not implying that Reese's Peanut Butter has anything to do with ConAgra's mess.

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The following is a comprehensive description of the hemolytic uremic syndrome (HUS), its symptoms, and the complications and long-term risks associated with HUS.

*** A glossary of terms can be found at the bottom of this entry. ***

Hemolytic uremic syndrome is a severe, life-threatening complication of an E. coli bacterial infection that was first described in 1955, and is now recognized as the most common cause of acute kidney failure in childhood. E. coli O157:H7 is responsible for over 90% of the cases of HUS that develop in North America. In fact, some researchers now believe that E. coli O157:H7 is the only cause of HUS in children.

HUS develops when the toxin from E. coli bacteria, known as Shiga-like toxin (SLT) [1,2], enters cells lining the large intestine. The Shiga-toxin triggers a complex cascade of changes in the blood. Cellular debris accumulates within the body’s tiny blood vessels and there is a disruption of the inherent clot-breaking mechanisms. The formation of micro-clots in the blood vessel-rich kidneys leads to impaired kidney function and can cause damage to other major organs.
Continue Reading...

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I’m a bit confused. Yesterday it was reported that Ranchers Beef Ltd (now out of business) was both the source of an E. coli outbreak in the United States that had sickened at least 40 tied to the consumption of Topps Meat (also out of business) AND 44 ill persons and 1 death in Canada.  See, "Topps story continues to grow more ominous."  Now the Ottawa Government releases this press statement:

The Canadian Food Inspection Agency (CFIA) is warning the public not to consume the various beef products described below because these products may be contaminated with E. coli O157:H7 bacteria. The affected products are being recalled as a result of the CFIA’s investigation and traceback conducted on contaminated beef involving Ranchers Beef Ltd. (Establishment 630), Balzac, Alberta.  There have been no reported illnesses associated with the consumption of these products.

This does seem to contradict the press release from the same government entity just the day before:

The Canadian Food Inspection Agency (CFIA) and the Public Health Agency of Canada (PHAC) are currently investigating possible linkages between E. coli cases that occurred earlier this summer in Canada. The investigation is examining 45 cases of E. coli O157:H7 that were found in New Brunswick, Quebec, Saskatchewan, Ontario and British Columbia. These cases were previously reported from July to September, 2007. As a result of these cases, eleven people were hospitalized and one elderly individual died.

However, according to the USA FSIS, there seems to be a “genetic link” to both the 40 people ill from the Topps outbreak and the 44 people ill and 1 death in Canada:

On October 25, the CFIA provided FSIS with PFGE patterns, or DNA fingerprints, from tests of beef trim from a Canadian firm, Ranchers Beef, Ltd., Canadian establishment number 630. This firm provided trim to the Topps Meat Company. While the firm, which had been located in Balzac, Alberta, ceased operations on August 15, 2007, some product remained in storage and was collected and tested by CFIA as part of the joint investigation of the Topps recall and as part of CFIA's own investigation into 45 illnesses in Canada from E. coli O157:H7.

It is hard to imagine that our USDA/FSIS might be more competent that its Canadian counterpart. 

Remember, according the New Jersey AP, Topps products revealed three different E. coli O157:H7 genetic "fingerprints," according to Kenneth Petersen, an assistant administrator at the USDA's Food Safety and Inspection Service. This means that although one of these fingerprints has been traced to Ranchers Beef, Ltd., in Canada, it will be interesting to see if we can track the other fingerprints to the source - Tyson, IBP, Cargill, others?  It will also be interesting to get legal jurisdiction over out of country corporations.

Also, recall the report from the New York Times, revealed that Topps sourced a significant amount of beef trimmings from countries like Australia, New Zealand, Canada and Uruguay – countries that FSIS has required little E. coli O157:H7 testing.  Will FSIS change this rule too soon?

So, FSIS has limited requirements that out of country producers test for E. coli.  And, we have learned during the Topps recall that Topps had cut back on its testing for E. coli.  It will be interesting to see if other meat companies have been doing the same.  Perhaps more testing at the retail (grocer store) would be helpful in tracking this ugly bug?  According to the FSIS website, “the agency still collects some samples from retail stores, but normally only when the retail store actually produces raw ground beef using trimmings from a cutting/boning operation conducted at the store.”  Perhaps it or someone should do more retail testing?

I also think we need to look at several other reasons for the spike in E. coli illnesses and recalls (in addition to testing product), such as: 1)  has the make-up of workers in slaughter plants changed in 2007?  Do we have less experienced workers?  2)  has cattle feed in 2007 changed significantly to allow greater growth of E. coli O157:H7?  3)  has global warming impacted the ecology of E. coli O157:H7?  Other ideas?

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More hamburger recalled:

Recall Release CLASS I RECALL
FSIS-RC-048-2007 HEALTH RISK: HIGH

Del-Mar Provision Co., Inc., a Buffalo, N.Y., firm, is voluntarily recalling approximately 50 pounds of ground beef products because they may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today.

The product subject to recall is:

* 10-pound poly bags of "GROUND BEEF."

Each bag bears the establishment number "Est. 2759" inside the USDA mark of inspection and a date code of "296." The ground beef products subject to recall were produced on Oct. 23, 2007, and distributed to a Buffalo area restaurant (not named).

For a good discussion of why we are seeing so many recalls and illnesses:

Why is E. coli making a comeback? - USDA's lack of teeth, industry's 'lazy' practices to blame for outbreaks

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I was reading the St. Cloud Times and saw this small note about a completely preventable tragedy:

Fundraiser for Stephanie Smith

When: Noon-5 p.m., Nov. 4.

Where: 103 River Oaks Drive (by Rocori High School on River Oaks Golf Course), Cold Spring.

What: Stephanie Smith is a 20-year-old Rocori High School graduate and is the daughter of Sharon Smith of Cold Spring and Tom Smith of St. Cloud. She is at St. Mary’s Hospital in Rochester in a drug-induced coma, battling from E. coli poisoning. Friends and family are having a fundraiser to help Stephanie with expenses.

Contact: Jackie Mueller, 320-685-8485; Kim Anderson, 320-685-3073.

Where is help from Cargill and Sams Club as I posted a few days ago?

I have a challenge for my avid blog readers.  Since this family will have to sue to get Cargill to do the moral thing, let's step up.  I will personally match, dollar for dollar, each donation up to $10,000 total.

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I have been in Minneapolis the entire week working to resolve nearly 20 severe E. coli cases (HUS Illnesses) tied to last years Dole spinach E. coli outbreak and a few cases from this year involving E. coli contaminated meat.  Late Friday night, after nearly the full week of negotiations, we were able to resolve them all.  I also had the chance to meet with clients on the new Cargill outbreak.  However, bad news from the meat industry continues:  Jeffrey Gold from the New Jersey AP broke a disturbing story today that Topps recalled product is still on store shelves - State inspectors find recalled meat at New Jersey store

"New Jersey consumer safety officials on Thursday said its inspectors were able to buy boxes of potentially tainted frozen hamburgers at a store weeks after the meat was recalled, sparking fear that a distributor may have delivered boxes to other stores."

In another, both frightening and bizarre announcement, FSIS and CFIA also announced today that it is likely that the Topps E. coli contamination came from a Canadian company, Ranchers Beef, Ltd., after 45 Canadian illnesses were linked to its beef products months before illnesses were reported in the US.  According to a press release issued by the CFIA, the investigation is looking at 45 cases that were reported between July and September in New Brunswick, Quebec, Saskatchewan, and British Columbia. Eleven people were hospitalized and one elderly person died.

FSIS Provides Update on Topps Meat Company Recall Investigation



A joint investigation between the Canadian Food Inspection Agency (CFIA) and the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) has identified a likely source of the multistate outbreak of E. coli O157:H7 infections linked to the Topps Meat Company.

On October 25, the CFIA provided FSIS with PFGE patterns, or DNA fingerprints, from tests of beef trim from a Canadian firm, Ranchers Beef, Ltd., Canadian establishment number 630. This firm provided trim to the Topps Meat Company. While the firm, which had been located in Balzac, Alberta, ceased operations on August 15, 2007, some product remained in storage and was collected and tested by CFIA as part of the joint investigation of the Topps recall and as part of CFIA's own investigation into 45 illnesses in Canada from E. coli O157:H7.

Today, PulseNet provided verification to FSIS that this PFGE pattern matched those from patients who were ill and from positive tests conducted by the New York Department of Health on product (both intact packages and open packages from patients' homes) that was later recalled by the Topps Meat Company on September 29. PulseNet is the Centers for Disease Control and Prevention's (CDC) searchable database of all PFGE patterns from patients and food products in the United States.

So, let's get this straight - CFIA knew in July that 45 Canadians had been sickened by Ranchers Beef meat last Summer but no one traced where that product or trim may have gone.  We now know that product made it into the Topps hamburger production and that Topps product seems to still be on some store shelves.  What a mess.  Perhaps more enforcement from the FSIS?  How would that have helped with the Canadian company sending is contaminated trim over the border?  I spoke to Julie Schmidt at USA Today:

Bigger, riskier plants to get more frequent E. coli checks

The stepped-up enforcement is "pretty ambitious," says Bill Marler, the nation's leading E. coli plaintiff's attorney. But he says the USDA required many of the measures years ago and failed to adequately monitor and enforce them.

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We filed two lawsuits today - one against Cargill on behalf of a Minnesota boy who became ill after eating an E. coli-contaminated hamburger and another on behalf of a Michigan man who became ill after eating a Salmonella-contaminated turkey pot pie.

In the Minnesota case:

According to the complaint, Scott Reber ate a hamburger made from a Cargill ground beef patty on September 22. By September 25, Scott had developed a gastrointestinal illness with symptoms typical of E. coli infection, and was hospitalized on September 28. While he was hospitalized, Scott’s parents learned that a stool specimen submitted for testing had tested positive for E. coli O157:H7.

Elk River family sues Cargill for E. coli

An Elk River family filed the second E. coli lawsuit against Cargill.  Elk River residents John and Barb Reber’s son Scott, 7, became ill with E. coli after eating a hamburger made from a Cargill ground beef patty.  According to the complaint, Scott ate a hamburger on Sept. 22 and by Sept. 25 had developed a gastrointestinal illness with symptoms typical of E. coli. He was hospitalized on Sept. 28.

And in the Michigan case:

According to the lawsuit, David Small ate a Banquet brand turkey pot pie on Saturday, September 24, 2007 and became ill with symptoms of Salmonella infection the following day. Mr. Small’s symptoms worsened over the next days, and he sought medical attention at Munson Medical Center on September 27, 2007. He was admitted and remained hospitalized until September 29. Mr. Small later learned that his stool specimen had tested positive for Salmonella serotype I 4,[5],12:i:-, the strain associated with the Banquet pot pie outbreak.

TC man sues over tainted pot pie

David Small regularly ate pot pies for lunch, but a recent bout with salmonella prompted the Traverse City man to sue the company that produced the tainted pies.  Small, 51, filed a lawsuit Thursday against ConAgra Foods Inc. and Tom's Food Markets Inc. after he said he was infected with salmonella in September.  ConAgra recalled all of its store-brand and Banquet pot pies Oct. 11 after a investigation by the Centers for Disease Control linked the tainted pies to recent salmonella outbreaks in several states.

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I spoke to Jeff Gold, AP writer, this afternoon during a break in mediations.  His story, just hit the wire:

Report: Topps Plant Reduced Inspections

In the months before issuing a massive recall of its frozen hamburgers, Topps Meat Co. curtailed testing of ground beef and skipped other safeguards aimed at preventing contaminated meat from reaching consumers, according to a published report Tuesday.

Meanwhile, the USDA on Tuesday announced more steps it was taking to protect the public from E. coli infections from beef. Recent outbreaks have reversed a steady decline that began in 2000.

The new effort should probably reduce E. coli contamination, said William D. Marler, a Seattle lawyer who represents victims of food-borne illness, including several who have sued Topps.

However, Marler added, "I'm still perplexed as to why, after all these years, they weren't doing this."

After the USDA/FSIS phone conference today, FSIS announced:

"FSIS Takes Aggressive Actions To Combat E. Coli O157:H7"

Key initiatives targeted to federally inspected plants that produce raw beef products include:

• Testing and analysis of trim. Based on preliminary data from the agency's beef trim baseline and scientific literature indicating that contamination of trim is related to contamination of ground beef, FSIS began trim testing in March 2007, not waiting for final analysis of the baseline. By testing earlier in the production chain to identify contaminated beef trim intended for ground beef, FSIS prevents this source from contaminating the ground beef available to consumers. This also gives the agency more data to analyze in determining and implementing the most appropriate actions to reverse upward trends.

• Verifying control of E. coli O157:H7. FSIS notified the beef industry that, as of November, all beef plants will be expected to verify that they are effectively controlling E. coli O157:H7 during slaughter and processing. The agency also provided the industry specific examples of minimum controls that would meet the minimum criteria for a "well-controlled" process. Identifying which establishments achieve the minimums, and which establishments do not, will provide FSIS the critical information on establishments with vulnerabilities.

• New checklist for verifying control. FSIS inspection program personnel will review both suppliers and processors based on a new checklist, once they complete specialized training beginning the week of Oct. 29. Data from the checklists will be completed in November and will be updated quarterly to help the agency more quickly identify significant changes in plants' production controls and ensure the company takes corrective action. FSIS will analyze the checklist data and use it to adjust programs or policies as needed.

• Testing more domestic and imported ground beef components. FSIS will begin testing materials that are used as components in raw ground beef, in addition to the beef trim already tested, which is the primary component. FSIS is also requiring countries whose beef is imported to the U.S. to conduct the same sampling or an equivalent measure.

• More rapid recalls. FSIS now takes into account a broader, more complete range of evidence when evaluating whether to seek a recall or take regulatory action. This gives the agency a credible approach to more rapidly taking action when certain types of evidence are available. In two recent cases, FSIS acted upon epidemiological evidence that linked illness to opened, FSIS-inspected product found in consumers freezers.

• Targeting routine testing. In January 2008, FSIS will begin routine targeted sampling for E. coli O157:H7 at slaughter and grinding facilities. Currently, all plants have an equal chance of being tested. Under this new verification testing program, FSIS will test larger volume operations more frequently than in the past. Data from the checklists will be used to determine testing frequency for establishments.

• Ensuring safety of imported beef products. FSIS notified countries that export raw beef product to the U.S. of new policies and programs and is working with them to ensure they implement the same or equivalent measures to protect the public from E. coli O157:H7 risks.

Although the above programs are good, one wonders why USDA/FSIS had not implemented these years ago or at least six months ago when the E. coli spike happened.  The Consumer Man, Herb Weisbaum and I spoke today about the USDA taking new steps to curb E. coli contamination:

As for reaction to the USDA proposal, Seattle attorney Bill Marler, who handles the bulk of the E. coli cases in the country and who has been one of the USDA's chief critic, calls this "a positive step that could make a significant difference." But he adds, "this should have been in place a long time ago."  If the USDA's new meat safety program is going to work, Marler says there needs to be serious enforcement: "I hope USDA has the willpower and manpower to do that."

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I am in Minnesota this week working on resolving 10 severe HUS cases stemming from the 2006 Dole Spinach E. coli outbreak and investigating cases stemming from the PM Beef Holding and the more recent Cargill E. coli recall.  Regarding the “hamburger issue,” the New York Times this morning wrote about the E. coli issue:

Many Red Flags Preceded a Recall of Hamburger

This graphic says it all:

A couple of the best lines:

In the case of Topps, the government has determined that the company reduced its testing of ground beef and neglected other safety measures in the months before the recall.

Two years ago, after an 8-year-old girl in Albany County, N.Y., was sickened by Topps ground beef, the Agriculture Department scrutinized the Elizabeth plant and found relatively few problems [we sued on this kid’s behalf and thought Topps got the message]. But since then, the department said, Topps cut its microbial testing on finished ground beef from once a month to three times a year, a level the department considers inadequate.

Federal investigators said they had recently learned that the company failed to require adequate testing on the raw beef it bought from its domestic suppliers, and it sometimes mixed tested and untested meat in its grinding machines.

Why would Topps risk poisoning customers by cutting back on testing and using product that was not tested at all?  Mixing product so you could not tell where the meat came from?  Where was the cost/benefit? Perhaps the pressure to fulfill orders for Wal-Mart, et al was more important than safety? Perhaps the drive by Wal-Mart for the lowest prices gave Topps no financial room to risk testing (and rejecting) contaminated meat? Testing and rejecting would have required Wal-Mart to be an understanding customer – Right!

In August 2006 I warned in my blog about the current of the increase in hamburger recalls and illnesses that became a wave in June 2007.

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Well, for a food safety attorney, I was living a bit dangerously in Hong Kong a month ago.  I swear I only ate one.

According to Wikipedia, the century egg, also known as preserved egg, hundred-year egg, thousand-year egg and thousand-year-old egg is a Chinese cuisine ingredient made by preserving duck, chicken or quail eggs in a mixture of clay, ash, salt, lime, and rice straw for several weeks to several months, depending on the method of processing. The yolk of the egg is concentrically variegated in pale and dark green colors while the egg white is dark brown and transparent, like cola. The yolk is creamy with a strong aroma and an almost cheese-like flavor. The egg white has a gelatinous texture similar to cooked egg white, but has very little taste. Some eggs have patterns near the surface of the egg white which are likened to pine branches. The egg is considered a delicacy in the west, but is quite common in the Far East.

            Yummy

Well, I did have a scotch or two with it.

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From the October/November 2007 of Food Safety Magazine:

Food Safety & the CEO - Keys to Bottom Line Success

By William Marler (that's me)

Foodborne illness has, of course, been around as long as there has been food. But the identification and diagnosis of these diseases is an emerging science that is changing all sectors of the food business, and those chief executive officers (CEOs) and senior level directors and managers who do not keep up are bound to be at a significant disadvantage when making critical decisions about their businesses.

It is one thing to read or view media reports on the latest foodborne illness outbreaks and brand-damaging product recalls; it is quite another to really understand the widespread, adverse impact these incidents have on your consumer base, on your employees, on the efficiencies of your operations, and ultimately, on your bottom line. In other words, today's food company CEO needs to know a lot more than producers in the fresh-cut produce industry initiated massive recalls last week, or that a regional restaurant chain closed down, or that a recent spate of pet fatalities due to the inclusion of a banned substance on an international scale means his or her company should look more closely at imported ingredients for awhile.

What you, the CEO, should know about food safety comes down to a few key concepts. First, all companies along the food supply chain need to go beyond managing the business: To be successful, food companies are now in the business of managing risk. This means garnering a good understanding of why food safety is important to your business, what risks there are to the business, how you can mitigate or eliminate those risks, and how in doing so the food safety program will provide a return on your investment. Continue Reading...

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Last week I called on Cargill (same applies to Sam's Club) to pay the medical costs and wage loss of victims of the E. coli outbreak traced to the company’s frozen ground beef patties.  Despite suing Cargill in Minnesota, it has been very quiet on taking responsibility.

Cargill recalled nearly 1,000,000 pounds of frozen hamburger nearly two weeks ago and yet has continued to remain silent on selling poisoned product to its customers. Victims of the E. coli contamination include families of children who have been hospitalized in Minnesota, Wisconsin, Tennessee, and North Carolina. In the past, companies like Dole, Odwalla, ConAgra and Jack in the Box willingly paid medical bills and wage loss when their products were identified as the source of E. coli outbreaks.

As I said:

“Without assistance in the form of monetary compensation for medical expenses and lost wages, many of the families with members in the hospital will face financial hardship in the coming months when the bills start coming in.”

“Cargill should do the right thing and begin compensating victims of this outbreak for those most basic needs now. Of course, Cargill will still be responsible for the costs of long-term medical care for victims, but it is better to step up now.”

“Cargill knows it’s going to pay those medical expenses in the end in the form of a settlement or jury verdict. The question is, since they know their product was the cause of these kids’ illnesses, why wait to help these families?”

So, Cargill, Sam's Club, do you have a response?

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Over the years we have been retained my families stricken by Botulism and we are presently prosecuting claims on behalf a Nevada couple who spent nearly a year hospitalized. Below are some helpful research and links.  Most of the public was reminded of the risks of Botulism in the recent Castleberry outbreak.

Botulism is a rare but serious paralytic illness caused by a nerve toxin that is produced by the bacterium Clostridium botulinum. Clostridium botulinum is the name of a group of bacteria commonly found in soil. It is an anaerobic, gram-positive, spore-forming rod that produces a potent neurotoxin. These rod-shaped organisms grow best in low oxygen conditions. The bacteria form spores which allow them to survive in a dormant state until exposed to conditions that can support their growth. The organism and its spores are widely distributed in nature. They occur in both cultivated and forest soils, bottom sediments of streams, lakes, and coastal waters, and in the intestinal tracts of fish and mammals, and in the gills and viscera of crabs and other shellfish. There are seven types of botulism toxin designated by the letters A through G; only types A, B, E and F cause illness in humans.
Continue Reading...

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A fellow blogger, the Fanatic Cook, both mentioned my Blog (thanks to Law Professor Blog) and the Safe Food Act of 2007.  She has set up a Blog to track Congressional sponsors and a way to email those who have not yet to encourage sponsorship.  We also just updated our Foodborne Illness site.

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It was much easier to track the illnesses caused by Topps E. coli contaminated hamburger as there is a report on-line on the CDC website and the 21,000,000 pounds of hamburger recalled.  No such luck with being able to see the same on the Cargill recall.   Remember, Cargill recalled nearly 1,000,000 pounds of E. coli infected hamburger.  A search through Health Department websites and news, has shown at least 13 people ill, and probably 14, 3 still hospitalized -  2 still in critical condition. 

This is what I have been able to find:

• North Carolina Department of Health reports 2 ill.

• Minnesota Department of Health reports 4 ill (likely 5).

We represent 3 of those children and have filed suit on behalf of 2 with number 3 coming this week while I am in Minnesota mediating the Dole spinach E. coli cases and Lunds and Byerly's.  We had asked that Cargill help all victims who have incurred medical expenses.  It has been silent.  According to the St. Cloud Times, Stephanie Smith, 20, remains in critical condition as of last Sunday morning at St. Mary’s Hospital after contracting what appears to be a critical case of E. coli poisoning.

• Tennessee Department of Health reports 3 ill.

According to the Knoxville Sentinel, 4-year-old John McDonald, who contracted E. coli linked to Cargill is in serious condition in UT’s pediatric intensive care unit. Surgeons removed part of the boy’s colon and lower bowel Tuesday night.

• Wisconsin Department of Health reports 4 ill.

Heck, Cargill even poisons people from its own state - go figure.  But then again, this is not the first time Cargill has had E. coli problems.

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Multistate Outbreak of E. coli O157 Infections Linked to Topp's Brand Ground Beef Patties

CDC reports as of 12 PM (ET) October 18, 2007, 40 cases of E. coli O157:H7 infection have been identified with PFGE patterns that match at least one of the patterns of E. coli strains found in Topp's brand frozen ground beef patties. Ill persons reside in 8 states [Connecticut (2), Florida (1), Indiana (1), Maine (1), New Jersey (9), New York (13), Ohio (1), and Pennsylvania (12)]. Twenty-nine (88%) of 33 patients with a detailed food history consumed ground beef. Seven illnesses have confirmed associations with recalled products because the strain isolated from the person was also isolated from the meat in their home. The first reported illness began on July 5, 2007, and the last began on September 24, 2007. Among thirty-two ill persons for whom hospitalization status is known, twenty (63%) were hospitalized. Two patients developed a type of kidney failure called hemolytic-uremic syndrome (HUS).  We have filed two lawsuits against Topps.  Given the number of ill persons, finding who supplied the product to Topps is becoming an important part of our investigation.

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Everett dad sues over illness linked to pot pie

Jim Davis of the Everett Herald talked today:

An Everett man is expected to file a lawsuit today against ConAgra Foods in Snohomish County Superior Court, saying his 2-year-old daughter became ill with salmonella after eating one of the company’s pot pies.  Eric Robertson alleges that his daughter, Rebecca, became ill with severe diarrhea on Sept. 22.

The girl was taken to a walk-in medical clinic and required medical care for the next several days.  As of this month, state health officials say they have linked eight cases of salmonella in Washington to the multistate outbreak blamed on pot pies sold under the Banquet brand name and some store brand names.

The state Health Department says two cases have been identified in Spokane County, and one each in Yakima, Snohomish, Benton, Stevens, Skagit and Pierce counties. The cases occurred from May to September.  A recall has been issued for all chicken, turkey and beef pot pies manufactured by ConAgra Foods.

More coverage from the Seattle PI and Everett Herald this morning.

"First it was peanut butter, now it's potpies," said William Marler, the Robertsons' attorney, who filed a similar lawsuit on behalf of a Minnesota family. "It's time ConAgra took a hard look at the manufacturing processes for all of its food products and stopped shipping contaminated product to consumers."

Again, the CDC's new numbers - Between January 1, 2007 and October 17, 2007, at least 211 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 34 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (3), California (5), Colorado (7), Connecticut (6), Delaware (5), Florida (2), Georgia (2), Idaho (7), Illinois (6), Indiana (3), Kansas (2), Kentucky (8), Massachusetts (6), Maryland (7), Maine (1), Michigan (3), Minnesota (7), Missouri (13), Montana (4), Nevada (6), New York (9), Ohio (10), Oklahoma (1), Oregon (3), Pennsylvania (15), Tennessee (6), Texas (4), Utah (11), Virginia (7), Vermont (2), Washington (14), Wisconsin (22), Wyoming (3). Their ages range from <1 to 87 years with a median age of 20 years; 51% of ill persons are female. At least 40 people have been hospitalized.

King 5 TV here in Seattle covered the story too. 

And, when ConAgra makes it on a stupid YouTube video entitled, "Drop that Pot Pie," you know you are in trouble.

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A Banquet frozen turkey pot pie has tested positive for salmonella, according to the Wisconsin Department of Agriculture, Trade and Consumer Protection laboratory and the Wisconsin Department of Health and Family Services.  The unopened pot pie came from the freezer of an individual diagnosed with salmonella in September.  We filed our second lawsuit against ConAgra this morning.

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So, yesterday I was at the CDC/USDA/FSIS/FDA sponsored meeting on whether non-E. coli O157:H7 shiga toxins should be considered an adulterant in food and had the opportunity to talk briefly with Dr. Raymond of FSIS about the status of the Topps investigation specifically, and the meat industry in general.  I do love my job.  Sometimes I am not quite sure what bloggger Jane Genova means, but I do love my job.

The below letter must have arrived at his office about the same time I sued Topps (again).  From the Ithaca, New York Paper:

“We are asking for punitive damages because had the company acted responsibly and recalled its products the day they discovered the E. coli contamination, Kristin and her son's infections could have been prevented,” said attorney William Marler, managing partner of Marler Clark. “It was poor judgment on the part of Topps, and although Topps paid for this mistake by going out of business, consumers like the Goodwins paid with their health.”

Senator Durbin below outlines quite well many of the issues in the case and ones I tend to explore inside of a courtroom with Topps and USDA officials under oath. I hope Senator Durbin, and other members of congress, follow up on these issues and other food safety challenges facing our country.

October 17, 2007

Dr. Richard Raymond
Under Secretary
Food Safety Inspection Service
U.S. Department of Agriculture
1400 Independence Ave., SW
Washington, DC 20250

Dear Dr. Raymond:

I am writing in response to the recent string of recalls of ground beef contaminated with E. coli O157:H7 bacteria. The safety of our nations food is dependent on the commitment and diligence of food manufacturers, combined with the insistent oversight of food safety inspectors. Any lapses must beswiftly addressed. We must not accept the status quo when it comes to foodborne illnesses.

It is alarming that, following several years of reductions in the number of cases of E. coli infections, we are now witnessing a sharp rise in both the number of incidents requiring a recall and the number people infected by this harmful bacteria. In 2007 alone, there have been 16 separate and independent recalls of ground beef due to E. coli, resulting in dozens of cases of significant foodborne illnesses and more than 28 million pounds of product being removed from the stream of commerce. This spike warrants additional attention.

See full text of letter below: Continue Reading...

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Herb Weisbaum, aka, “ The Consumer Man” wrote:

It has been a really bad year for the meat industry. A record 29 million pounds of contaminated ground beef has been recalled so far this year. The culprit is E. coli O157:H7, the same nasty bacteria that caused the widely publicized Jack in the Box outbreak in 1993 and the nationwide spinach recall last year. No one has the exact numbers, but this bad meat has sickened dozens of people across the country, and in some cases, changed their lives forever.

Cynthia Cintura, a mother in Hemet, Calif., made spaghetti with meat sauce for dinner back in May. Two days later, her daughter Lauren — only 4-years-old at the time — became extremely ill.



“It was the worst experience of my life.” Cintura says. “Every day I was just basically praying, hoping that she would get through this.” Lauren spent three weeks at San Diego Children’s Hospital. It took eight dialysis treatments and five blood transfusions to save her life. Doctors say she could develop kidney or liver problems as she grows older. “Our food is supposed to be safe,” Lauren’s mother says. “Well, it’s definitely not safe enough.”

“We don’t know why we’re seeing this blip,” says Dr. David Goldman of the USDA’s Food Safety and Inspection Service. In fact, the uptick comes as a surprise to everyone. Until this summer, great progress had been made in reducing E. coli contamination in ground beef.

Seattle attorney Bill Marler, who represents more E. coli victims than any other lawyer in the country, blames both the government and industry. He calls some of USDA’s policies “silly” and he says the meat industry has gotten “a little bit lazy.” A few weeks ago, he called for congressional hearings into the situation. Continue Reading...

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While I was sitting in a USDA/FSIS/FDA/CDC meeting on E. coli today, we also filed a lawsuit seeking punitive damages against Topps, the New Jersey beef supplier that recalled nearly a year’s supply of frozen ground beef patties after its products were identified as the source of an E. coli outbreak in September. The lawsuit was filed on behalf of Groton, New York, residents Keith and Kristin Goodwin and their 8-year-old son, Lucas, in Tompkins County Supreme Court.

In the lawsuit, we allege that Topps had knowledge of consumer illness tied to its products and a positive E. coli sample from its ground beef patties no later than September 8th, seven days before Kristin and Lucas Goodwin ate Topps hamburgers. Both mom and son were hospitalized on September 24th, and both later tested positive for a genetically indistinguishable strain of E. coli O157:H7 from that isolated from Topps ground beef patties. Kristin was released from the hospital on September 26th, but Lucas developed hemolytic uremic syndrome and remained hospitalized for eight days. While they were hospitalized, Topps recalled 332,000 pounds of ground beef products. The company later expanded the recall to include 21.7 million pounds of ground beef.   As I said in a press statement:

“We are asking for punitive damages because had the company acted responsibly and recalled its products the day they discovered the E. coli contamination, Kristin and Lucas’ infections could have been prevented.  It was poor judgment on the part of Topps, and although Topps paid for this mistake by going out of business, consumers like the Goodwins paid with their health.”

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I'm off to the "other Washington" in the morning to meet with Congressmen and Senators on food safety issues and to attend a conference on E. coli.  I know, ya'll wish you were going.  The U.S. Department of Agriculture's (USDA) Food Safety and Inspection Service (FSIS), the Food and Drug Administration's Center for Food Safety and Applied Nutrition (FDA CFSAN), and the National Centers for Disease Control and Prevention (CDC) will co-sponsor a public meeting on October 17, 2007. The purpose of the meeting is to consider the public health significance of non-Escherichia coli (E. coli) O157:H7 Shiga toxin-producing E. coli.

DATES: The public meeting will be held on Wednesday, October 17, 2007, 8:30 a.m. to 3:30 p.m.

ADDRESS: The meeting will be held at the Arlington campus of George Mason University, 3401 N. Fairfax Drive, Room 244, Arlington, VA 22201.

hmmm, do you think that I have sued, Topps, Nebraska Beef and Cargill in the last week will come up?  See, Lawsuits Filed Against Nebraska Beef and Cargill Today.  My friends at Barfblog (yes, there really is such a blog) were on top (no pun intended re: Topps) of non-O157 outbreaks.  Here is a listing that they put together:

Interestingly, they did miss adding in the fact that the Dole 2006 spinach outbreak included ill persons, and at least one who died, of non-O157 Shiga toxin-producing E. coli.  Perhaps at todays meeting the government will actually announce that.

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No, sorry, this is not a lecture on how to poison lawyers.  On Wednesday I get the opportunity to discuss how to determine the strengths and weaknesses of a foodborne illness claim by phone.  The below PowerPoint and Paper may be helpful.

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It seems that the wheels are coming off the meat industry.  Nearly 30,000,000 pounds of meat has been recalled in 2007.  More recalls were announced tonight.

Georgia Firm Recalls Ground Beef Products Due to Possible E. coli O157:H7 Contamination
Recall Release CLASS I RECALL
FSIS-RC-046-2007 HEALTH RISK: HIGH

Arko Veal Co., a Forest Park, Ga., establishment, is voluntarily recalling approximately 1,900 pounds of ground beef products because they may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today. The product subject to recall includes:

* 50-pound cases of "BEEF PATTIES MIX," "80/20." Each case bears the establishment number "Est. 20766" inside the USDA mark of inspection and a product code of "502250." Each case bears a production date of "07-Oct-07," "08-Oct-07" or "09-Oct-07." The beef products were produced between Oct. 7 and Oct. 9, 2007, and were distributed to restaurants in Alabama, Georgia, North Carolina and South Carolina. There was no retail distribution of these products. The problem was discovered through routine FSIS microbiological testing. FSIS has received no reports of illnesses associated with consumption of these products

Illinois Firm Recalls Ground Beef Products Due to Possible E. coli O157:H7 Contamination
Recall Release CLASS I RECALL
FSIS-RC-045-2007 HEALTH RISK: HIGH

J & B Meats Corporation Inc., a Coal Valley, Ill., establishment, is voluntarily recalling approximately 173,554 pounds of frozen ground beef products because they may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today. Each package also bears the establishment number "Est. 5712." The frozen ground beef products were produced on June 12, June 18 and June 22, 2007, and were distributed to retail establishments nationwide.  The products subject to recall include:

* 2-pound boxes of "TOPPS PREMIUM 100% PURE SIRLOIN BEEF SIRLOIN STEAK BURGERS, 6 1/3 LB. HOMESTYLE BURGERS." Each box bears a use by date of "06/22/08."
* 8-pound boxes of "TOPPS 100% PURE GROUND BEEF HAMBURGERS, 32 QUARTER POUNDERS." Each box bears a use by date of "06/12/08," "06/18/08" or "06/22/08."
* 3-pound bags of "SAM'S CHOICE BACKYARD GOURMET BEEF BURGERS, 80/20, 12 QUARTER POUND ROUND PATTIES." Each bag bears a use by date of "03/08/08."
* 3-pound boxes of "TOPPS 100% PURE GROUND BEEF HAMBURGERS, 12 QUARTER POUNDERS." Each box bears a use by date of "06/18/08.

And, guess what J&B Meats had this problem in 2002 and 2003.

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Amy and Joshua Reinert took their daughter Isabelle to the emergency room in August when she had a seizure and lost consciousness. Reinert said her daughter continued to have diarrhea for nearly six weeks. It’s the first federal lawsuit stemming this week’s announcement to pull ConAgra’s Banquet and generic pot pies from the shelves due to a potential salmonella contamination.  Remember this outbreak began in January of 2007.  Also, notice that there are no ill people in Nebraska, home state of ConAgra.  What gives?

Salmonella count increases to 174 in 32 states

Between January 1, 2007 and October 12, 2007, at least 174 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 32 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1), Arkansas (3), California (6), Connecticut (3), Delaware (5), Georgia (2), Idaho (7), Illinois (5), Indiana (3), Kansas (2), Kentucky (8), Massachusetts (6), Maryland (5), Maine (1), Michigan (3), Minnesota (6), Missouri (13), Montana (4), Nevada (6), New York (8), Ohio (8), Oklahoma (1), Oregon (3), Pennsylvania (14), Tennessee (5), Texas (4), Utah (2), Virginia (6), Vermont (2), Washington (8), Wisconsin (21), Wyoming (3). Their ages range from <1 to 87 years with a median age of 20 years; 52% of ill persons are female. At least 33 people have been hospitalized.

When is a recall not a recall?  When it is not a recall. 

Although the lawsuit is filed and we can begin to determine how this could have happened, how the recall was handled is also still at issue. 

Kirsti Marohn, of the St. Cloud Times:  ConAgra Foods recalls all pot pies

A recall on frozen pot pies was expanded Friday to include all varieties produced by ConAgra Foods. Health officials are warning consumers to check their freezers for the products that could be contaminated with salmonella. While an earlier advisory focused on certain types of Banquet brand pot pies, the new voluntary recall includes Albertson's, Food Lion, Great Value, Hill Country Fare, Kirkwood, Kroger, Meijer and Western Family branded products. Consumers who purchased the products days or weeks ago might still have some in their freezer. And whether they hear of the recall before they unknowingly eat them largely depends on a notification system that one attorney says isn't always effective.

Bill Marler, a Seattle-based lawyer who is representing Amy and Joshua Reinert of Sauk Rapids in their lawsuit against ConAgra, says the company should have recalled the products sooner. And he said some stores didn't remove the pot pies from their shelves right away.

"The store has a better reason to know that there's a possibility of a problem with a product than a consumer does," Marler said. "They're really in a better position to protect their customers than the customers themselves."

Josh Funk, Omaha Associated Press Writer - Critics: ConAgra Mishandled Pot Pie Recall

ConAgra Foods Inc. shouldn't have waited two days to recall its Banquet and generic pot pies after they were linked to nationwide salmonella outbreak.

Food poisoning lawyer Bill Marler said those mixed messages, and the lack of a recall for two days, may have helped make it possible for the pot pies to linger on store shelves "Without a recall, the stuff was still on the shelves and being sold," Marler said.

If anyone bought ConAgra's pot pies this week after the company knew about the link to the salmonella outbreak, Marler said the company could face punitive damages in a lawsuit because the product wasn't immediately recalled. Marler, of Seattle-based law firm Marler Clark, handles many food-borne illness cases, and his firm has already filed one against ConAgra because of the pot pie outbreak.

Andy Martin of the New York Times wrote a great story today entitled: Did Your Microwave Nuke the Bacteria? He interviewed the mother of my client.

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Cargill recalled E. coli contaminated Frozen Hamburger Patties last week.  E. coli cases have been linked in Minnesota, Wisconsin, North Carolina and now Tennessee.  Many of the E. coli cases involve HUS, acute kidney failure.  We will be filing suit against Cargill Monday morning in Minnesota.  This is not the first time we have had to deal with Cargill in this manner.



More news from Tennessee:

State and local health officials are investigating four cases of E. coli in East Tennessee, including a brother and sister whose father says they were infected by recalled Cargill-brand hamburger patties from Sam’s Club.

And, from Minnesota:

Stephanie Smith, 20, is struggling for her life after contracting what appears to be a critical case of E. coli poisoning.

For a great overview of the beef supply mess, see Jeffrey Gold AP business writer from Newark, New Jersey:

Beef recalls raise concerns about food safety - Nationwide recalls by two frozen hamburger companies have brought renewed demands to update the nation's century-old meat inspection system and give the government more power to keep questionable products off the dinner table.

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WATE Channel 6 Knoxville Reports:

3 cases of children's E. coli infections under investigation in Knoxville

Three cases of E. coli infections in children are under investigation in the Knoxville area, according to the Knox County Department of Health. At least two of the children are still being treated at East Tennessee Children's Hospital. And two of the children are from the same family.

Health officials are interviewing the children and their families, trying to retrace how they may have come into contact with the bacteria. Investigators are also checking stores to determine whether recalled foods have been removed from their shelves. A report in the Knoxville News Sentinel says the family of the related children believes they were infected by eating Cargill-brand hamburger patties. However, the health department has not confirmed this as the cause. Officials also haven't confirmed that the causes of the infections are connected. State health investigators will run DNA from the infected children through a databank containing DNA from infected food products to see if they match. The results should be available early next week.

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ConAgra recalls all frozen pot pies

All ConAgra's pot pies are made at the Marshall plant, which began producing microwavable frozen pot pies in 2005.  "We're recalling all of them, all ever made at that plant," said Childs.

From a ConAgra Press Release:

OMAHA, Neb.--(BUSINESS WIRE)--Oct. 11, 2007--ConAgra Foods announced today that it is continuing its efforts to ensure consumer safety by voluntarily recalling all varieties of Banquet brand frozen pot pies and all varieties of store brand frozen pot pies sold under the names of Albertson's, Hill Country Fare, Food Lion, Great Value, Kirkwood, Kroger, Meijer and Western Family. The recall includes all Banquet pot pie varieties, including poultry and beef. The store brand not-ready-to-eat pot pie products include all varieties under the following brand names:

Albertson's (sold at Albertson's);
Hill Country Fare (sold at HEB);
Food Lion (sold at Food Lion);
Great Value (sold at Wal-Mart);
Kirkwood (sold at Aldi);
Kroger (sold at Kroger);
Meijer (sold at Meijer);
Western Family (now discontinued; previously sold at a variety of small retailers).

No one is more pleased that I am that ConAgra did the right thing (perhaps a bit slowly) and put public health before company profits. I started blogging about the potential problem on Monday and pleaded with ConAgra to institute a recall on Tuesday and Wednesday. We sued them today.  I am sure that the blogs and the suit had no relationship to the recall?  Perhaps other reasons included www.barfblogs.com cooking show "Cooking a frozen pot pie in a microwave" or the Oregonians article in Wednesday paper "ConAgra refuses to recall potpies".  And, the FSIS and CDC weigh in:

Missouri Firm Recalls Frozen Pot Pie Products For Possible Salmonella Contamination
Recall Release     CLASS I RECALL
FSIS-RC-044-2007     HEALTH RISK: HIGH

WASHINGTON, Oct. 11, 2007 - ConAgra Foods, a Marshall, Mo., firm, is voluntarily recalling an undetermined amount of all varieties of frozen pot pie products in commerce that may be linked to an outbreak of salmonellosis, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today.  These frozen pot pies include all varieties in 7 oz. single serving packages bearing an establishment number "P-9" or "Est. 1059" printed on the side of the package.

Salmonella victims increase to 165 in 31 states



ATLANTA, Oct. 11, 2007 - Between January 1, 2007 and October 11, 2007, at least 165 isolates of Salmonella I 4,[5],12:i:- [this strain needs a name - "Salmonella ConAgra" or "Salmonella Marler"] with an indistinguishable genetic fingerprint have been collected from ill persons in 31 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1), California (6), Connecticut (3), Delaware (5), Georgia (2), Idaho (6), Illinois (5), Indiana (3), Kansas (2), Kentucky (8), Massachusetts (5), Maryland (5), Maine (1), Michigan (3), Minnesota (6), Missouri (13), Montana (4), Nevada (6), New York (8), Ohio (8), Oklahoma (1), Oregon (2), Pennsylvania (13), Tennessee (5), Texas (4), Utah (2), Virginia (6), Vermont (2), Washington (8), Wisconsin (20), Wyoming (2).

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Speechwriter/Ghostwriter Jane Genova recently posted on her blog that she thinks Hillary Clinton will win the Whitehouse and when she does, I should be appointed Food Safety Czar: 

I have someone in mind for the job of food-safety czar.  It's Bill Marler of Marler Clark Law firm. Actually Hillary might already know Marler, a plaintiff attorney specializing in food-borne diseases.  Marler was among the coalition of experts who helped create a new system after the E-Coli outbreak early in Bill Clinton's first administration.  The new president was delivering a televised town meeting when a couple whose child ate some of that contaminated meat spoke up. That child later died.

I worked with former President Bill Clinton to arrange congressional hearings and victim testimony after the Jack in the Box E. coli outbreak in 1993. What we needed – and still need – was change in our food safety system. Significant change. 

What we got then was a classification of E. coli O157:H7 as an adulterant in meat products. A good step in the right direction. What we need now is a single agency responsible for food safety – one that has the power to shut down processing plants and recall contaminated food products, among other things.

“Bill Marler: Food Safety Czar” does have a nice ring to it, but since I don’t think my wife and kids would let me move them to Washington, D.C. here’s my offer: When the Democrats win the Whitehouse and create a single food safety agency, and when companies stop poisoning people, I’ll stop calling for Congressional hearings on food safety and asking the food industry to “put me out of business.” 

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The Portland Oregonian reported:

Minnesota couple first to sue ConAgra over tainted potpies

Attorneys filed the first lawsuit this morning against ConAgra Foods Inc. over potpies tied to a multistate salmonella outbreak. The suit was filed in federal court in Minnesota by attorneys representing a couple whose 22-month-old daughter suffered a seizure, fever and severe diarrhea in August. State health officials in Minnesota later matched the type of salmonella that infected Isabelle Reinert with others who had fallen ill after eating Banquet-brand potpies.

Bill Marler, a Seattle attorney representing the Reinert family, said a recall is necessary. Marler also sued ConAgra earlier this year following a nationwide recall of the company's Peter Pan and Great Value peanut butter, also tied to a salmonella outbreak. "I don't quite understand what ConAgra's doing," Marler said. "They may never recall the stuff officially, but it's just going to come back to them as consumers hear of problems."

David Unze of the Saint Cloud Times and I spoke this morning:

Sauk Rapids family sues over salmonella poisoning

A Sauk Rapids family has sued ConAgra Foods after their daughter contracted salmonella poisoning from a Banquet-brand pot pie. Amy and Joshua Reinert’s 19-month-old daughter, Isabelle, was seriously ill this summer and required outpatient treatment that included two eight-hour days of receiving antibiotics and fluids through an IV drip. The Minnesota Department of Health confirmed through genetic testing that the salmonella that Isabelle contracted had the same genetic fingerprint associated with the pot pie outbreak, said Bill Marler, a Seattle-based attorney representing the Reinert family.

Marler called ConAgra’s efforts the worst management of a food-related illness he has seen in his years of litigating such cases, and said the company should have recalled the pot pies.  He’s more concerned now with making sure the word gets out to consumers about the dangers and that stores pull the pot pies before more are sold to people who don’t know about the salmonella outbreak.  “That stuff is still on the shelf being sold in grocery stores around the country and people are buying it,” Marler said. “Talk about criminal. That almost borders on criminal behavior.”

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CNN Money Posted the AP story by Josh Funk from Omaha:

A Minnesota couple sued ConAgra Foods Inc. (CAG) Thursday for selling the pot pies they believe made their young daughter ill with salmonella. The federal lawsuit Amy and Joshua Reinert filed is the first one related to this week's announcement that ConAgra's banquet and generic pot pies had been linked to a salmonella outbreak.

The company and federal officials warned customers not to eat the pot pies and to throw them away, and ConAgra is offering refunds. A company spokeswoman did not immediately respond to a message Thursday seeking comment about the lawsuit.

Amy Reinert said her daughter Isabelle continued to have diarrhea for nearly six weeks after she initially became ill in August at the age of 19 months. An ambulance took the youngest of the Reinerts' three children to the emergency room on Aug. 18 after she had a seizure and lost consciousness. "That was the worst thing I've ever experienced as a parent," Amy Reinert said. "It was horrible." A few days later, doctors told the Reinerts that Isabelle had salmonella, but it wasn't until this week - after countless interviews with health officials - that the family learned what caused the illness. Isabelle's salmonella matched the strain of the illness that health officials have linked to at least 152 cases of salmonella in 31 states. The federal Centers for Disease Control and Prevention said at least 20 people have been hospitalized as part of the ongoing outbreak, but so far no deaths have been linked to the pot pies.

The lawyer who is handling the Reinerts' lawsuit, Bill Marler, has criticized ConAgra's decision not to immediately recall the product. Marler, of Seattle- based law firm Marler Clark, handles many food-borne illness cases.

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Email I received this morning - says it all:

I had no idea that Banquet had any association to the
company w/ the peanut butter recall.
I actually went to Wal-Mart yesterday to buy more pot pies. (There
were non in the frezzer, and no sign to inform of the recall, I
actually had more at my home and my daughters apartment at school) We
have been getting sick on and off for weeks and had no idea it was
from our food. My doctor put me on antibiotics today, when I
explained that I still was having problems. My 19 year old ate one for
supper last night (before, my mother called and told me of the recall
[she knows I buy several weekly and send them for lunch for my younger
daughter]) Needless to say she was sick all night and today! The
compamy down played the situation so the News barely mentioned it. I
called their hotline, and they say "there is no problem if you
properly cook the product" this is to put the blame back on the
consumer! When I talked to a rep, again down played, but yes my
products were included in the recall and someone would be calling me.
(I can get rid of the 2 pies that are left...wouldn't that be getting
rid of my proof. They also make a comment about Dr. documentation,
hmmm does this sound like they know they are at fault?

I am very upset with this situation, but I am more upset with our
Government not taking action right away and letting more comsumers get
sick. (and sometimes die!)
I was also upset with the differant information I've been given, from
Doctors (and the confusion) I had no idea someone could catch if from
us either! I am furious and Nauseas

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CDC confirms Salmonella Pot Pie outbreak has been ongoing since January 2007 - a month before the Salmonella outbreak tied to ConAgra peanut butter was announced in February 2007.



Investigation of Outbreak of Human Infections Caused by Salmonella I,4,[5],12:i:-

CDC is collaborating with public health officials in multiple states across the United States and with the U.S. Department of Agriculture Food Safety Inspection Service to investigate an ongoing multi-state outbreak of Salmonella I,4,[5],12:i:- (pronounced “four five twelve eye minus”) infections in humans. An investigation that used interviews comparing foods eaten by ill and well persons is showing that eating Banquet brand pot pies produced by the ConAgra Foods company is the likely source of the illness.

Between January 1, 2007 and October 9, 2007, at least 152 isolates of Salmonella I,4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 31 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1), California (6), Connecticut (3), Delaware (5), Georgia (2), Idaho (6), Illinois (3), Indiana (3), Kansas (2), Kentucky (8), Massachusetts (5), Maryland (5), Maine (1), Michigan (3), Minnesota (6), Missouri (11), Montana (4), Nevada (6), New York (6), Ohio (8), Oklahoma (1), Oregon (2), Pennsylvania (13), Tennessee (5), Texas (4), Utah (2), Virginia (6), Vermont (2), Washington (2), Wisconsin (19), Wyoming (2). Their ages range from <1 to 87 years with a median age of 20 years; 49% of ill persons are female. At least 20 people have been hospitalized. No deaths have been reported.

So, why recall peanut butter, but not pot pies?

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What a great way to make money. Produce a contaminated product, do not remove it from store shelves, but urge consumers to throw it away. So consumers buy it, throw it away, and they are still hungry - Brilliant.

Despite warnings, ConAgra’s Salmonella Pot Pies are still on store shelves – And, why no recall?  ConAgra's response is this:

On October 9 ConAgra Foods announced that Banquet brand frozen chicken or turkey pot pie products or generic store brand not-ready-to-eat pot pie products bearing the number "P-9" printed on the side of the package were contaminated with Salmonella. The generic store brand not-ready-to-eat pot pie products bearing the number “P-9” printed on the side of the package are sold under the generic store brand names as shown below:

* Hill Country Fare (sold at HEB);
* Food Lion (sold at Food Lion);
* Great Value (sold at Wal-Mart);
* Kirkwood (sold at Aldi);
* Kroger (sold at Kroger); and,
* Meijer (sold at Meijer).

ConAgra suggested that consumers might return these products to ConAgra Foods for a refund. If consumers prefer, they may return the product to the store from which it was purchased for a refund; consumers should discard the product prior to returning the entire package to their retail store.

It is also great to see our government weigh in to advise us not to eat ConAgra Salmonella Pot Pies – And, why no recall?

FSIS Issues Public Health Alert For Frozen Chicken and Turkey Pot Pies

FSIS is advising consumers to discard and not to eat these chicken or turkey pot pie products until we are able to determine the source, products and potential production dates of contamination and to verify proper cooking instructions for these not-ready-to-eat products.

Well at least the State Health Departments of Health care about the public. And, again, why no recall?

Salmonella cases traced to Banquet brand pot pies - Consumers urged to discard product

Consumers who have Banquet or other brands of pot pies with a code beginning with 5009 in their freezer should not eat them. The product should be thrown away or can be held but not consumed until the investigation is completed and additional recommendations on its safety are available.

Josh Funk, AP reporter in Omaha broke the following story this evening:

ConAgra defends its pot pies and decision not to recall them

A day after warning consumers about the link between pot pies and a salmonella outbreak, officials from ConAgra Foods Inc. and USDA defended the decision not to recall the product. But two East Coast grocery chains announced plans Wednesday to pull the Banquet and generic pot pies from store shelves, and a prominent food poisoning lawyer criticized the decision not to recall the pies.

ConAgra spokeswoman Stephanie Childs said the Omaha-based company decided with USDA officials that a consumer alert would more appropriate than a recall, and consumer interests would still be protected. "From the consumer perspective, there's not much difference," Childs said.

But unlike with a recall, the pot pies remain available in many stores.

And the most important part:

But Bill Marler, of Seattle-based law firm Marler Clark, said recalling the product would have been the right course of action. "Frankly, given the numbers of ill persons ... the responsible thing for ConAgra to do is to recall all implicated product," said Marler, whose firm handles many food-borne illness cases. "Chicken and turkey pot pies should not be contaminated with salmonella."

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Like Sherman’s march through the South in the Civil War, Cargill’s E. coli contaminated frozen meat patties have headed South as well. The News Observer reports that a 10-year-old in Durham County and a 14-year-old in Orange County were infected with E. coli that authorities believe came from ground beef patties that were recalled last week. Cargill Inc. last week recalled more than 840,000 pounds of ground beef patties distributed at Sam's Club stores nationwide after four Minnesota children developed E. coli illness. State officials said stool samples from the Durham and Orange children had the same DNA fingerprint as that in the contaminated beef.

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Emails and phone calls are coming in about Salmonella Pot Pies.  Most people simply want to know what they should do - ConAgra says cook it or return it to the store, USDA says do not eat it, but keep it and Health Departments say to throw it away - what is a consumer to do?  Here is an email that I thought I would share to give a little insight into ConAgra's operation:

I am a food safety microbiologist with more than 35 years of
experience. I follow your food poisoning blog closely, and am usually
in agreement with your philosophy. I also respect your attention to
accuracy in your scientific comments - something sorely lacking in
many places on the Internet.

I have been following the ConAgra/Banquet situation, and was
nonplussed at the Company's comment that any problems were due to its
customers undercooking the pot pies. This did not make any sense to
me, so I did a bit of digging on-line and came up with the following
1994 article from Prepared Foods magazine. Please note, especially,
the final paragraphs on the first page of this link.

See Article at Find Articles

Unless the Company has drastically changed its production procedure
since 1994, the pot pie fillings are PRECOOKED. Only the crust is
raw. In 1994, ConAgra was cooking the fillings to 205ºF (96ºC) and
then cooling to 60-70ºF (15.5º-21ºC) before filling the pie shells.
The Company's claim that the filling must be cooked by the customer
in order to be consumed safely is nonsense.

I thought that I would forward this article to you in the hope that
you would find it useful.

Keep up the good work.

Come on ConAgra, recall this product before someone really gets hurt.

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Four of the eight people who have gotten sick with E. coli infections are from Wisconsin, and three of those are students at Marquette University. According to WTMJ News Radio, one person ended up hospitalized, two others were also diagnosed with E. coli bacterial infections.

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From a Press Release this morning:

SEATTLE--(BUSINESS WIRE)--Oct. 10, 2007--William Marler called on ConAgra this morning "to do the right thing for its customers and to immediately recall all of its Banquet Pot Pies without question and without hesitation." According to a press release this morning, the CDC announced, "The outbreak appears to be ongoing." Marler added, "As of last night these products were still on store shelves and in fact were on sale -- 2 for $1.00. ConAgra, the USDA and all health authorities, should put people's safety above sales."

The Center for Disease Control (CDC) reported 139 people in 30 states have been linked to the consumption of ConAgra's Banquet Pot Pies. The states with ill persons are: Arizona (1 person), California (5), Connecticut (3), Delaware (5), Georgia (2), Idaho (2), Illinois (3), Indiana (3), Kansas (2), Kentucky (7), Massachusetts (5), Maryland (5), Maine (1), Minnesota (5), Missouri (11), Montana (4), Nevada (6), New York (6), Ohio (6), Oklahoma (1), Oregon (2), Pennsylvania (13), Tennessee (5), Texas (4), Utah (2), Virginia (6), Vermont (2), Washington (1), Wisconsin (19), Wyoming (2). At least 20 people have been hospitalized. No deaths have been reported.

BACKGROUND: Marler’s Seattle-based law firm, Marler Clark (www.marlerclark.com) has represented thousands of victims of E. coli, Salmonella, Hepatitis A, Listeria, Shigella, Campylobacter and Norovirus illnesses in over thirty states. In 1998, Marler and his current law partners formed www.outbreakinc.com, a non-profit food safety organization. Marler dedicates a significant amount of his time to travel to food-industry and public health conferences, giving speeches about how to prevent food poisoning and the consequences of foodborne illness outbreaks. Marler comments on foodborne illness outbreaks and litigation at www.marlerblog.com. For more information about Salmonella, see www.about-salmonella.com. Mr. Marler can be reached on his mobile phone at 206-719-4705 or by email at bmarler@marlerclark.com.

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Investigation of Outbreak of Human Infections Caused by Salmonella I,4,[5],12:i

CDC is collaborating with public health officials in multiple states across the United States and with the U.S. Department of Agriculture Food Safety and Inspection Service to investigate an ongoing multi-state outbreak of Salmonella I,4,[5],12:i:- (pronounced “four five twelve eye minus”) infections in humans. An investigation that used interviews comparing foods eaten by ill and well persons is showing that eating Banquet brand pot pies produced by the ConAgra Foods company is the likely source of the illness.

Between January 1, 2007 and October 9, 2007, at least 139 isolates of Salmonella I,4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 30 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), California (5), Connecticut (3), Delaware (5), Georgia (2), Idaho (2), Illinois (3), Indiana (3), Kansas (2), Kentucky (7), Massachusetts (5), Maryland (5), Maine (1), Minnesota (5), Missouri (11), Montana (4), Nevada (6), New York (6), Ohio (6), Oklahoma (1), Oregon (2), Pennsylvania (13), Tennessee (5), Texas (4), Utah (2), Virginia (6), Vermont (2), Washington (1), Wisconsin (19), Wyoming (2). Their ages range from <1 to 87 years with a median age of 20 years; 49% of ill persons are female. At least 20 people have been hospitalized. No deaths have been reported.

Salmonella enterica subsp. enterica serovar 4,[5],12:i:-

Salmonella serotype I 4,[5],12:i:- was first identified in the U.S. in 1998 and became the 14th most common serotype recovered from human illness in 2002. In 1998, this was the 4th most commonly identified serotype in Spain. Pulsed field gel electrophoresis (PFGE) patterns for most I 4,[5],12:i:- isolates suggests evolutionary links with S. Typhimurium. Analysis of this related genovar of increasing health importance can help uncover evolutionary aspects of the S. Typhimurium complex, the most common Salmonella pathogen.

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Five cases of E. coli-related illness are being investigated in Wisconsin and one has been confirmed as identical to the strain that sickened consumers in Minnesota, launching Cargill Meat Solutions' ground beef recall over the weekend. ??Three of the cases were reported in Milwaukee County and two in southeastern Wisconsin, Milwaukee Health Commission Communications Manager Raquel Filmanowicz told Meatingplace.com. The confirmed case was in Milwaukee County. ??"We were made aware of these cases through our communicable diseases area and started making the connections, " Filmanowicz said, adding that test results are expected in the next day or so on the four unconfirmed cases.

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This is silly - hundreds of people sickened in 35 States and Con Agra issues no recall, FSIS tells us to not eat them, but don't throw them away either, Health Departments tell us to throw them away  - and you still can buy them 2 for a $1.00 in Kansas:

Photo Credit -- Amy Hubbell

And I made honorable mention on the BARFBLOG and SLAW, a blog.

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Click on the above logo to go to Con Agra's press release.  Interestingly, Con Agra does not do a recall of its Salmonella Pot Pies, but instead tells customers to return the product or throw it away.  I guess FSIS/USDA is tired of doing recalls since it has spent the last two weeks assisting in the recall of nearly 23,000,000 pounds of hamburger?

I have an idea - since Con Agra and USDA/FSIS are not doing a recall, why not mail the Salmonella Pot Pies directly to your Congressman or Senator?  Remember, "we have the safest food supply in the world."

I

INGREDIENTS:

Filling: Chicken broth (water, chicken flavor [chicken stock, salt, hydrolyzed soy protein, flavors, autolyzed yeast extract, chicken fat, cooked chicken powder, whey protein concentrate and citric acid), cooked chicken (chicken meat, chicken, water, salt, sodium triphosphate), carrots, potatoes (calcium chloride), mechanically separated chicken (mechanically separated chicken, sodium tripolyphosphate, natural flavoring, citric acid), contains 2% or less of the following: modified food starch, peas, chicken fat, flavorings, soybean oil, emulsifier (sodium stearoyl, lactylate), sugar, natural flavoring, paprika, beta carotene (corn oil, beta carotene), oleoresin tumeric.

Crust: Wheat flour, shortening (BHT), water, dextrose, salt, maillose (water, caramel color).

Allergy Warning - Contains: Soy, Milk, Wheat.

hmmmm, no Salmonella Warning?

Salmonella cases traced to Banquet brand pot pies - Consumers urged to discard product

According to the Minnesota Department of Health, six cases of Salmonella infection in Minnesota residents have been linked to eating Banquet brand turkey or chicken pot pies, the Minnesota Department of Health (MDH) said today. The finding prompted health and agriculture officials to warn consumers not to eat any Banquet brand pot pies. An investigation is ongoing.  Banquet brand pot pies are sold in the freezer section at grocery stores and other outlets throughout the country. Pot pies made at the same plant are also sold under a dozen store labels, but all carry a code number beginning with 5009. “Best if used by” dates for implicated product are not known at this time.

I received the following Email:

I just wanted to contact you because I am fed up..My
granddaughter and I got sick over the peanut butter
and now we were all eating pot pies and on the news
it was talking about them ..checked the package and yep
..these were some of the batch so everyone quit eating
and threw what was left away ..may be too late because
last week I bought about 20 of them and the kids all snack on
them .Anyways somebody needs to do something about Con Agra
 ...I know I am steering away from their products from now on.

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FSIS Issues Public Health Alert For Frozen Chicken And Turkey Pot Pies

Banquet brand and generic store brand frozen not-ready-to-eat pot pie products with "P-9" printed on the side of the package may be the potential source of reported illnesses caused by Salmonella based on epidemiological evidence collected by the CDC and State public health departments.

WASHINGTON, Oct. 9, 2007 - The U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) is investigating a Missouri establishment that on October 9 voluntarily ceased operations due to reported illnesses linked to their products. Banquet brand and generic store brand frozen not-ready-to-eat pot pie products with "P-9" printed on the side of the package may be the potential source of reported illnesses caused by Salmonella based on epidemiological evidence collected by the Centers for Disease Control and Prevention (CDC) and State public health departments.

On October 3, the CDC launched a multi-state case control study with detailed questions on chicken and egg consumption. Based on additional information provided by the Minnesota Department of Health, CDC added questions to the study on October 5 focusing on frozen chicken or turkey pot pie product consumption. FSIS was notified on October 5 that states had identified an FSIS-regulated product to the CDC as the potential source of contamination.

The Agency is advising consumers not to eat or to discard these chicken or turkey pot pie products until we are able to determine the source, products and potential production dates of contamination and to verify proper cooking instructions for these not-ready-to-eat products. We will provide updates as further information becomes available.

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By Josh Funk, Omaha AP Business Writer, posted on Yahoo News a few moments ago:

Health Officials Call ConAgra About Possible Pot Pie Problems

Several state health departments have told ConAgra Foods Inc. its Banquet pot pies may be linked to cases of salmonella, but the company said the pies are safe if they're cooked properly.  ConAgra spokeswoman Stephanie Childs said Tuesday she didn't know how many health departments had contacted the company, which is working with officials to determine whether any additional precautions are necessary. No recall is being planned, she said.  Dave Daigle with the federal Centers for Disease Control and Prevention confirmed Tuesday that the agency is tracking a large salmonella outbreak with cases in several states.  More details of the salmonella outbreak, including the number of cases reported and states involved, were expected to be released later Tuesday.  Salmonella sickens about 40,000 people a year in the U.S. and kills about 600. It can cause diarrhea, fever, dehydration, abdominal pain and vomiting. Most cases of salmonella poisoning are caused by undercooked eggs and chicken.  Childs said ConAgra is confident in the safety of its chicken and turkey pot pies when all the cooking instructions on the package are followed, especially when the pies are cooked in a microwave.  "Consumers should always read the directions to make sure they are cooking the product properly," Childs said.  Pot pies need to be cooked longer in microwaves that have less power, Childs said. A good sign that the pot pie is done is when steam rises out of it.  Childs said the cooking will kill any common pathogens routinely found in uncooked products that contain poultry.

So, no recall, REALLY?

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Mark Johnson of the Milwaukee Journal Sentinel posted last night on the online edition that now “five people in Wisconsin have been infected with E. coli O157:H7, three of whom consumed beef at the same event in the Milwaukee area in mid- or late September, according to the Milwaukee Health Department. The Cargill patties were produced between Aug. 9 and Aug. 17 and were sent to retail establishments, restaurants and institutions nationwide…. Cargill is voluntarily recalling 845,000 pounds of frozen ground beef patties produced at its Butler, Wisconsin plant.”

As I posted earlier, Cargill has had problems with E. coli in the past and they have been tragically tied to Milwaukee.

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Six year old Sidney Jacobi remains on dialysis, in lots of pain

WAVE Shayla Reaves reported that the E. coli outbreak at Galena Elementary School in Indiana continues to cause major problems for some of the kids who were infected. A 6-year-old girl is now on dialysis, and has been in the hospital for weeks. Sidney Jacobi is one of eight Galena students who tested positive for E. coli. She has been on dialysis for about a week now, and just wants to go home according to her mother, Marcia. Still, Sidney has continued to test positive for the infection, and her mother says the hardest part is not knowing when she'll be OK again.  You can keep up with Sidney's online journal by visiting: www.caringbridge.org/visit/sidneyjacobi.

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According to the CDC, 32 cases of E. coli O157:H7 infection have been identified with PFGE patterns that match at least one of the patterns of E. coli strains found in Topp's brand frozen ground beef patties. Ill persons reside in 8 states - Connecticut (2), Florida (1), Indiana (1), Maine (1), New Jersey (7), New York (9), Ohio (1), and Pennsylvania (10).

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According to Milwaukee AP, Wisconsin Woman Tests Positive For E. Coli Infection, an 18-year-old Milwaukee County woman tested positive for the same strain of bacteria that sickened four Minnesota children last week, the state Department of Health and Family Services said Monday. The E. coli strain, O157:H7, is identical to the one linked to ground-beef patties produced in Wisconsin by Cargill Inc. and sold at three Sam's Club stores in the Twin Cities area, the health agency said in a statement.

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Salmonella typhimurium is a leading cause of human gastroenteritis. The genus Salmonella contains over 2,000 sero-species and is one of the most important pathogens in the family Enterobacteriaceae. Salmonella enterica serovar Typhimurium is the among the most common Salmonella serovars causing Salmonellosis infections in the US. In humans, Salmonellosis causes diarrhea, fever, and abdominal cramps 12 to 72 hours after infection and may last for up to 7 days. Some cases result in hospitalization. Salmonella is readily transmitted through the feces of people or animals. The incidence of non-typhoid salmonellosis (which is caused by Salmonella enterica typhi) is increasing worldwide, causing millions of infections and many deaths in the human population each year.



Fox 12 of Idaho reported today:

Salmonella Scare Prompts Health Warning

Boise, Idaho -- A salmonella scare has local health officials concerned.  A number of Salmonella infections have been reported across southern Idaho since mid September.  Experts at the Idaho Health and Welfare Department believe they could be linked to undercooked chicken pot pies.  Residents are being warned to follow cooking instructions carefully -- since some frozen convenience foods are not pre-cooked.

We understand that there may be in excess of 200 culture-positive Salmonella typhimurium ill persons nationwide tied to the consumption of chicken pot pies and turkey pot pies.  As I told Law and More blogger Jane Genova this evening, we have seen a disturbing trend of contacts with our office where Salmonella and Con Agra Banquet chicken and turkey pot pies seem linked.  It will be interesting to see what health officials do in the morning - "voluntary recall" perhaps?  No recall at all?  By the way, are pot pies USDA or FDA responsibility?

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It will be busy week at Marler Clark judging from the phone calls and email traffic over the weekend.  We expect to file additional lawsuits against Cargill and Topps on behalf of families of children sickened by E. coli from the recall of 23,000,000 pounds of frozen hamburger.  We will also be doing testing on left over hamburger as well as keeping the pressure on USDA/FSIS.  I will also keep pressing for Congressional hearings to put and end to this.  Some key pictures with links for the week:





Here is a post of Cattle Networks that made me smile this morning:

"It’s like the old Buffalo Springfield song, ‘Somethin’s happenin’ here, what it is ain’t exactly clear."

(Source: MEAT&POULTRY, September 2007)

Bill Marler, chief partner at Marler Clark L.L.P., the attorney who won the original multi-million dollar Jack in the Box judgments against the beef industry 14 years ago, talking about the recent increase in E. coli cases.

PS: ‘60 Minutes’ knocking at your door?  No problem.  Now Bill Marler is another story altogether.

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The below Timeline is directly from the transcript of the Press Conference held by the USDA/FSIS on October 4, 2007.

Some questions that need to be answered:

1.  When did Topps know that there was a possible E. coli O157:H7 illness tied to its product? Given that USDA/FSIS was testing Topps product by September 7, 2007, it seems evident that Topps knew of the problem at some point between August 31, 2007 and September 8, 2007. Once it knew, what did it do?

2.  Did Topps seek any advise from USDA/FSIS, or other sources, between August 31, 2007 and September 7, 2007 about commencing a recall?

3.  When did Topps and USDA/FSIS discuss the recall, and what advise to USDA/FSIS give Topps regarding the timing of the recall?

August 31, 2007 – Florida parent complaint of E. coli O157:H7 illness of daughter logged on USDA/FSIS website.

September 7, 2007 – USDA/FSIS has positive E. coli O157:H7 sample from opened box of hamburger from Florida parent’s freezer.

September 8, 2007 – USDA/FSIS received hamburger sample from Topps. Tests were negative.

September 14, 2007 – Confirmed stool sample from Florida daughter and from hamburger in Florida parent’s freezer are identical E. coli O157:H7 genetic matches.

September 20, 2007 – USDA/FSIS was informed of two additional E. coli O157:H7 illnesses from New York State.

September 22, 20007 – Confirmed E. coli O157:H7 stool sample from New York cases were found to be genetic matches to both hamburger in Florida parent’s freezer and the daughter.

September 24, 2007 – New York State Department of Health confirmed E. coli O157:H7 positive sample from “unopened” box of Topps product.

September 25, 2007 – Recall announced.

September 29, 2007 – Recall expanded.

October 4, 2007 - "Opened vs unopened box of meat rule" changed.

October 5, 2007 – CDC confirms 30 illnesses in 8 states.

For other stupid USDA/FSIS rules - see these posts where I wrote about the USDA/FSIS's failure to inform the Minnesota Health Department where E. coli contamination came from and where USDA/FSIS embargoed E. coli contaminated trim, but allowed the intact meat that the trim was removed from to be shipped despite the fact that it knew the intact meat would be used for hamburger.  Post 1, 2, 3, 4.   Why do these people keep their jobs?

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It was a bit cold and rainy on Bainbridge Island today as I watched my eight-year-old daughter, Sydney’s, soccer game. You see at 50 I don’t feel old - my wife is younger and my three daughters are very young. So, I was a bit disturbed that the AARP (American Association of Retired Persons) would send me a membership card in the mail today. As I cut the card into several dozen pieces and burned it in the fireplace, I smiled to myself and thought – well, at least I am not Cargill. I might be getting older, but at least I did not sicken four little kids in Minnesota over the last month and have to recall nearly 1 million pounds of meat even after it proclaimed in 1995 that the “End to E coli is found.”

Really, Cargill did. In an article in the New York Times, Cargill and Frigoscandia announced that they “had developed a method to eliminate virtually all disease-causing bacteria in beef, pork and poultry. The process was to use a blanket of steam to pasteurize the surface of carcasses and could be easily inserted into meat-processing lines, the two companies said. The main target of the new technology was E. coli O157: H7.” What the hell happened?

August 2000 – Cargill Implicated In 1993 and 2000 Sizzler E. coli Outbreaks - Lawsuit filed

In the summer of 2000 Cargill meat was found to be the source of the Milwaukee Sizzler E. coli outbreak that sickened 62 people and killed one child. We represented many of the victims. In 1993 Cargill was also implicated in an E. coli outbreak in Oregon that sickened nearly 100. In both instances the contaminated beef originated at Cargill’s meat plant located in Fort Morgan, Colorado.

July 2001 - E. coli lawsuit filed against Cargill on behalf of injured child

We filed suit against Cargill on behalf of a young child who became seriously ill after eating a hamburger patty contaminated with E. coli.  A month earlier, Cargill issued a voluntary recall of 190,811 pounds of ground beef and ground pork it manufactured at a Newnan-based meat packaging plant and then supplied to Kroger supermarkets in southeast Georgia. According to a Washington Post-Dateline NBC Report, an Excel plant located in Fort Morgan, Colorado, was cited 26 times from September 1999 to July 2000 for fecal contamination of meat. Also, according to a June 26, 2001 story in the Atlanta Journal-Constitution, “Excel’s parent company, Cargill, recalled 16.7 million pounds of cooked, ready-to-eat turkey and chicken products in December to safeguard against potentially fatal Listeria contamination.”

2002 - Lawsuit filed against Cargill

We filed another E. coli suit against Cargill. This time on behalf of several women who were sickened along with 57 others traced to Cargill’s Peck Meats Packing division in Milwaukee, Wisconsin. These illnesses led to a 400,000-pound ground beef recall on October 1. That recall was expanded to 2.8 million pounds on October 3. Cargill closed its Peck Meats plant on October 3, but issued a new recall of 568,000 pounds of fresh beef on October 10.

So, you see I might be getting older, but at least I am not Cargill.

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 CLASS I RECALL - HEALTH RISK: HIGH

Cargill Meat Solutions Corporation is voluntarily recalling approximately 845,000 pounds of frozen ground beef patties produced at its Butler, Wis., location because they may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today.  We have been contacted by the families of two of the four ill children.  It is not our first dance with Cargill - See 1 and 2 and 3.  It is also not Cargills or one of its subsidiaries experience with RECALLS.  All this after Cargill reported in 1995 that "End To E. Coli Is Found"

The frozen ground beef patties were produced on various dates from Aug. 9 through Aug. 17, 2007, and were distributed to retail establishments, restaurants and institutions nationwide. Each label bears the establishment number "Est. 924A" inside the USDA mark of inspection.

* 6-pound boxes of "American Chef's Selection Angus Beef Patties 18-1/3 Pound Patties." Each package bears a case code of "7703100" and various package codes of Best If Used By dates of "02/05/08," "02/06/08," "02/12/08," and "02/13/08."



Products distributed to restaurants and institutions and subject to recall include: Continue Reading...

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William D. Marler
Op-ed

Dr. Richard Raymond, Under Secretary for Food Safety at the USDA/FSIS told us last week: “our meat supply is the safest in the world.” This when in the past days Topps, a company in operation for nearly 70 years closes its doors and recalls 21 million pounds of ground meat after sickening 30, and Cargil, one of the largest food producers in the US, recalls hamburger after sickening 4 children in Minnesota. ”The US beef supply is safe?” Well, I suppose the thought is that if the lie is big enough we will not notice?

Earlier this year J. Patrick Boyle, President and Chief Executive of the American Meat Institute, wrote in part in the New York Times: “Since 1999, the incidence of E. coli in ground beef samples tested by the Agriculture Department has declined by 80 percent to a fraction of a percent, a level once thought impossible.” In January 2007 I agreed with Mr. Boyle. In fact, according to the Centers for Disease Control and Prevention, E. coli outbreaks linked to tainted meat declined by some 42 percent over the last five years. Perhaps our beef was safer in January but something has changed, and it has not changed for the better.

A decade ago most of my clients were sickened by E. coli-tainted meat. In fact, between 1993 and 2002 I represented hundreds of children with acute kidney failure caused by consuming E. coli-tainted ground beef. And, then it nearly stopped. For the last five years there were few recalls or illnesses tied to ground beef. I touted the meat industry as a model of what an industry could do that was right to protect consumers.

But then it changed this spring. Since April of this year, 30 million pounds of red meat, mostly ground beef products, has been recalled. To put that in perspective, that is enough red meat to make 120 million hamburgers. E. coli illnesses once on a downturn have spiked. Kids are getting sick, seriously sick, again – nearly 100 since April. Topps Meat Company expanded its 300,00-pound recall to include 21 million pounds of ground beef. This recall tops the Con Agra recall of 19 million pounds in 2002 that sickened over forty and killed one and is just under the 25 million pounds recalled by now-bankrupt Hudson Foods in 1997.

We also learned in the past few days that Dr. Raymond’s food safety bureaucracy knew weeks in advance that our meat supply might be tainted by Topps meat and did not alert the public until dozens of children had already become ill. And he tells us: ”the US beef supply is safe?”

One would think that with hundreds of Americans poisoned that Dr. Raymond would not be acting as the “cheerleader in chief” for the beef industry, but would be asking one simple question – “What is going on?” Clearly, the USDA/FSIS seems incapable of asking simple questions.

Congress needs to act now. It is time for Congress to accept a leadership role and call hearings on “How safe is our meat supply, really?” Hearings need to not only 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 meat 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 the next meat-related illnesses. More regulation may not help. Testing all products may not be feasible. More funding for the CDC and USDA may not be enough. And, more research at universities may not find all of the answers. But, getting everyone concerned to the same table is a start.

Several times a month Bill Marler, a Seattle lawyer, through his non-profit, Outbreak Inc., speaks to industry and government on why it is important to prevent foodborne illnesses. He is also a frequent commentator on food litigation and food safety on www.marlerblog.com.

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CDC Investigators compared the “DNA fingerprints” patterns of E. coli O157 strains found in ground beef with “DNA fingerprints” patterns of E. coli O157 strains isolated from ill persons. As of 12 PM (ET) October 5, 2007, 32 cases of E. coli O157:H7 infection have been identified with PFGE patterns that match at least one of the patterns of E. coli strains found in Topp's brand frozen ground beef patties. Ill persons reside in 8 states [Connecticut (2), Florida (1), Indiana (1), Maine (1), New Jersey (7), New York (9), Ohio (1), and Pennsylvania (10)]. Twenty-one (91%) of 23 patients with a detailed food history consumed ground beef. Three illnesses have confirmed associations with recalled products because the strain isolated from the person was also isolated from the meat in their home. The first reported illness began on July 5, 2007, and the last began on September 15, 2007. Among twenty-three ill persons for whom hospitalization status is known, fifteen (65%) were hospitalized. One patient developed a type of kidney failure called hemolytic-uremic syndrome (HUS). No deaths have been reported. Fifteen (47%) patients are female. The ages of patients range from 1 to 77 years; 50% are between 15 and 24 years old (only 14% of the US population is in this age group).



A person from Kane County and another from Grundy County Illinois have confirmed cases of food poisoning, E. coli O157:H7, from frozen ground beef produced by Topps Meat Co. of New Jersey, the McHenry County Health Department said Friday. The two people became ill in early September. A ground beef sample from one of their houses is being tested at the Illinois Department of Public Health laboratory/

As I said to the Washington Post yesterday about the Topps Plant closing:

"It's not like Topps didn't have a chance to not have this problem in the first place, had they paid more attention to the lawsuit we filed against them in 2005," said Marler.

While this was Topps' first recall, two months ago it settled a lawsuit involving a 9-year-old girl who spent a month in the hospital after being sickened by tainted meat, said her attorney William Marler. Marler has filed suit on behalf of an eight-year-old who became sick in the latest recall and has 10 other potential clients.

By Renae Merle
The Washington Post

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In the category - "when it rains it pours," the Minnesota Department of Health announced today that four E. coli O157:H7 cases linked to frozen ground beef patties purchased at Sam’s Club stores in August and September.  According to the Departments Press Release:

State health and agriculture officials are investigating four cases of E. coli O157:H7 infection in Minnesota residents associated with eating ground beef patties purchased from Sam’s Club stores in August and September.

Routine monitoring by the Minnesota Department of Health (MDH) found that the cases of illness were caused by E. coli O157:H7 with the same DNA fingerprint. All four cases were related to pre-made frozen ground beef patties purchased at Sam’s Club stores in the Twin Cities metro area. The people became ill between September 10 and 20 after consuming the meat. The brand name of the implicated frozen ground beef patties was “American Chef’s Selection Angus Beef Patties.”

All four cases were children. Two of the cases developed hemolytic uremic syndrome and were hospitalized. One case has been discharged and one remains hospitalized.

“The Sam’s Club stores currently involved include the Eagan, Maple Grove and White Bear Lake stores. However, we can’t be certain that meat from other stores is not involved, since the brand of implicated frozen ground beef patties was likely sold at other Sam’s Club locations,” said Heidi Kassenborg, Acting Director of the Dairy and Food Inspection Division of the Minnesota Department of Agriculture (MDA).

American Chef’s Selection Angus frozen Ground Beef Patties that were purchased on or after August 26, 2007 from a Sam’s Club store, whether still in the refrigerator or freezer, should not be used, but should be discarded or returned to the store, officials said.

We have already been contacted by two of the families.  It will be interesting to see who produces “American Chef’s Selection Angus Beef Patties" and where it is produced.  UPDATE - Well that didn't take long, Minneapolis AP this morning wrote:

Sam's Club pulls beef patties after E. coli illnesses reported

The Sam's Club warehouse chain has pulled a brand of ground beef patties from its shelves nationwide after four children who ate the food, produced by Cargill Inc., developed E. coli illness. Cargill on Friday asked customers to return any remaining patties purchased after Aug. 26 to the store or destroy them. Cargill, based in Wayzata, Minn., is one of the nation's largest privately held companies and makes food ingredients, moves commodities around the world and runs financial commodities trading businesses.


Wikipedia facts about Cargill

* As of 2007, it is the second largest privately owned company in the USA.
* In fiscal year 2007, Cargill declared revenues of $88.3 billion USD, and earnings of $2.34 billion USD.
* It is responsible for 25 percent of all United States grain exports.
* It supplies approximately 22 percent of the United States domestic meat market.
* It employs over 158,000 employees at 1,100 locations in 66 countries.
* The company exports more products from Argentina than any other company.
* It is the largest poultry producer in Thailand.
* All of the eggs used in McDonald's restaurants in the United States pass through Cargill's plants.

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Not surprisingly, Jeff Gold of AP reported this morning:

Topps closes 6 days after the second-largest U.S. beef recall

The company at the center of the nation's second-largest beef recall in U.S. history is closing its doors. Elizabeth-based Topps Meat Company, which was founded in 1940, has recalled almost 22 (M) million pounds of its frozen hamburgers. That is one years production. Thirty people in eight states had E. coli infections matching the strain found in the Topps patties. In a statement today announcing the closure, Topps chief operating officer Anthony D'Urso said the company is praying for people who became sick.

While watching a business shut down and people lose their jobs is tragic, we’ve seen it before and for the same reasons. It appears that significant food safety errors and omissions that occurred repeatedly for over a year are what led to this closure. What did Topps learn after poisoning Erik Boehlke and nearly killing her in 2005 – apparently, not enough.

It is inconceivable to me that of 87 Topps employees and managers, not one of them caught the mistake – which apparently happened every day for a year – that allowed E. coli to enter the plant and potentially contaminate ground beef products. After all, the Topps plant should have had a hazard analysis and critical control point (HACCP) plan in place to aid the now-unemployed workers in identifying areas in the manufacturing process where contamination was likely to occur.

What is almost of as great of concern is what the USDA and FSIS knew about this recent recall and when they knew it?

According to the Daily Green, a consumer newspaper:

USDA Waited 11 Days to Recall E. coli- tainted Meat

The Department of Agriculture waited 11 days after discovering E. coli bacteria in Topps Meat hamburgers to start the recall that grew into the second largest this nation has ever seen.  As many as 29 illnesses resulted — and it’s not clear if, or how many, of those could have been prevented had the USDA not had its head stuck up its bureaucracy.

According to Julie Schmit of USA Today:

USDA revamps recall procedures - Move comes after criticism it was slow to act in beef case

The USDA's promise to revamp some recall procedures is likely to dampen criticism sparked by news reports about its handling of the Topps recall. Eleven days before the recall, the USDA had confirmation that a Florida teen was sick with the same strain of E. coli O157:H7 that was found in a box of Topps burgers from her freezer. But because the box was open and there was a rare chance that the E. coli had originated in the home, no recall was begun until after New York state found the same E. coli strain in an unopened box of Topps burgers from a supermarket. "We are not completely satisfied with the time" that elapsed, says David Goldman, assistant administrator. The standard will be changed in some cases.

In the past, beef recalls have not occurred or have been delayed because initial confirmed cases came from opened packages of beef, says Bill Marler, the nation's leading E.coli plaintiff's attorney. "It has been a stupid policy," he says.

Jeff Gold of AP also wrote:

Beef Recall Forces Topps to Shut Down

Topps Meat Co. on Friday said it was closing its business, six days after it was forced to issue the second-largest beef recall in U.S. history and 67 years after it first opened its doors.

Topps faces at least two lawsuits filed since the recall, one from the family of an upstate New York girl who became ill, and one seeking class-action status on behalf of all people who bought or ate the hamburgers. The family of a Florida girl who suffered kidney failure sued Wal-Mart Stores Inc., which is among chains that sold Topps patties.

The closing, or any subsequent bankruptcy, does not derail the lawsuits, said William D. Marler, a lawyer for the family of 8-year-old Emily McDonald, of North Colonie, N.Y. She was hospitalized for two days after eating a hamburger Aug. 17 at a barbecue. "Bankruptcy will slow the process down, but it does not mean that people will not be compensated," Marler said.

I had a chance to talk about this with Jane Genova of Law and More.

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Kiawana Rich of the Staten Island Advance reported that Robert Bloom, 19, of Willowbrook and Brianna DiMartini, 12, of Great Kills both were sickened after eating hamburger from Topps. In addition, the New York Health Department confirmed that Brianna’s mom, Allison, also was hit by E. coli poisoning,

One wonders if Topps will make it?

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Dr. Richard Raymond, Under Secretary for Food Safety, FSIS is the fellow in charge with keeping cow poop out of your hamburger.  However, press reports today seems to indicate that the good Doctor was asleep at the switch (knew for 18 days before they told anyone), or perhaps too busy telling us all that "the US meat supply is safe. " As of today, the U.S. Centers for Disease Control and Prevention said 29 cases of E.coli illness are suspected to be linked to the 21.7 million lbs of recalled ground beef products from Topps Meat Company LLC.  No deaths have been linked to the meat. The 29 cases were in eight states: Connecticut (two cases), Florida (one), Indiana (one), Maine (one), New Jersey (six), New York (nine) Ohio (one) and Pennsylvania (eight), according to a posting on the CDC's Web site.  The 29 cases ranged in age from 3 to 77 years and at least 11 people were hospitalized.

Dr. David Goldman, Assistant Administrator, Office of Public Health Science, FSIS, tried to explain why FSIS waited for 11 days (not the 18 days originally reported).  The upshot is that FSIS did not ask for a recall because FSIS believed that somehow the little girl in Florida had somehow contaminated the frozen hamburger not the other way around.  FSIS waited until multiple positive samples from ill people from multiple states and from "unopened" box meat tested.  Interestingly, there appears to be multiple strains of E. coli O157:H7 in individual hamburger patties.

Dr. Daniel Engeljohn, Deputy Assistant Administrator, FSIS has confirmed that this is the fifth biggest meat recall in US History.  Also, FSIS announced that it will no longer wait to suggest recalls when it has just an E. coli positive stool sample and a E. coli positive meat sample from an opened box.  Prior policy was to only suggest recalls if the meat tested came from an unopened box.

According to FSIS officials, the reason that the plant was shut down (well actually Topps shut itself) is because Topps was unable to produce records that showed that Topps was following its own internal Food Safety Protocols.  No discussion as to when, or if, Topps will reopen.

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Stephen J. Hedges of the Washington Bureau of the Chicago Tribune broke a very disturbing story this evening that is unfortunately far to common - the USDA and FSIS are more concerned about pleasing the Corporations they are supposed to inspect than in protecting the public from a known danger and deadly killer - E. coli O157:H7.   What is most disturbing in this case is that the  USDA and FSIS knew for 18 days that Topps product was out in stores and did nothing to alert the public.  Will anyone at the USDA or FSIS be fired?  Will Congress finally get off its hands and mandate recall authority to one food safety agency that is not beholden to Corporate America?

Excerpts of the story below as is the link.

USDA waits 18 days to request recall of tainted meat

The U.S. Department of Agriculture waited 18 days after learning that millions of pounds of ground beef made by Topps Meat Co. could be contaminated with E coli bacteria before it concluded that a recall was necessary, an e-mail from an agency inspection official shows. The Topps hamburger recall, which is now the third largest hamburger recall in USDA history, was first announced Sept. 25. The Elizabeth, N.J., company initially recalled 331,000 pounds of hamburger, but last Saturday expanded the recall to include 21.7 million pounds of frozen hamburger. The timing of the Topps recall, and its rapid expansion, are bound to raise more questions about the nation's food safety system. So far, 28 people in eight states—most in the Northeast—have fallen ill from eating the hamburger, according to the federal Centers for Disease Control in Atlanta.

Yet at the USDA, tests confirmed the presence of the E coli bacteria strain O157:H7 in the Topps hamburgers on Sept. 7, according to an e-mail from Kis Robertson, an employee of the USDA's Food Safety Inspection Service (FSIS).

The USDA also announced its recall only as New York State published its own Sept. 25 consumer alert regarding possible E. coli contamination in Topps hamburger. Claudia Hutton, a spokeswoman for the New York Department of Health, said that state investigators confirmed the E. coli in Topps beef on Sept. 24 during tests in its Wadsworth Center Laboratories.

New York State actually issued its Sept. 25 consumer alert before the Topps recall was announced by the company and USDA, according to Jessica Chittenden, a New York Department of Agriculture and Markets spokeswoman. Chittenden said once state tests confirm a single case of food contamination, her department is required to immediately notify the public. It has now found eight instances of contamination in New York.

I know, I promised to not talk about my China trip anymore (It has received much play on Chinalawblog - mostly a bit negative),  but you have to wonder if the USDA and FSIS types faced death for being so damn stupid - recall a post I made a few months ago when China executed the head of its food safety agency.  I think the question that should be asked of the USDA/FSIS and Corporate America is: "How many lives do you ruin until you just can not get up in the morning?"

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Several state health departments, CDC, and the United States Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) are investigating a multi-state outbreak of Escherichia coli O157:H7 infections. On September 29, USDA issued a notice about a recall of 21.7 millions pounds of frozen ground beef patties.

Health officials in several states who were investigating reports of E. coli O157 illnesses found that many ill persons had consumed the same brand of frozen ground beef patties. Ground beef patties recovered from patients' home were tested by state public health department and federal laboratories. Tests conducted by the New York State Wadsworth Center Laboratory and by a USDA-FSIS laboratory on opened and unopened packages of Topp's brand frozen ground beef patties yielded E. coli O157 isolates with several different “DNA fingerprint” patterns.

Investigators compared the “DNA fingerprints” patterns of E. coli O157 strains found in ground beef with “DNA fingerprints” patterns of E. coli O157 strains isolated from ill persons. As of 12 PM (ET) October 2, 2007, 28 cases of E. coli O157:H7 infection have been identified with PFGE patterns that match at least one of the patterns of E. coli strains found in Topp's brand frozen ground beef patties. Ill persons reside in 8 states [Connecticut (2), Florida (1), Indiana (1), Maine (1), New Jersey (6), New York (8), Ohio (1), and Pennsylvania (8)]. Seventeen (94%) of 18 patients with a detailed food history consumed ground beef. Three illnesses have confirmed associations with recalled products because the strain isolated from the person was also isolated from the meat in their home. The first reported illness began on July 5, 2007, and the last began on September11, 2007. Among fifteen ill persons for whom hospitalization status is known, ten (67%) patients were hospitalized. One patient developed a type of kidney failure called hemolytic-uremic syndrome (HUS). No deaths have been reported. Twelve (43%) patients are female. The ages of patients range from 3 to 77 years; 33% are between 15 and 24 years old (only 14% of the US population is in this age group).

Consumers who have frozen ground beef patties should determine whether they have the recalled product and discard it or return it to the place of purchase. Each recalled package bears the establishment number “Est. 9748” inside the USDA mark of inspection and has a sell-by date between “SEP 25 07” and “SEP 25 08.” More information on the recalled products can be found at
USDA/FSIS.

We have been retained by a dozen individuals sicked in the latest recall.  Please see below posts on status of lawsuits and prior recalls.  Also, here are a few interesting documents from the last time Topps had an E. coli problem - FSIS Report 1 and FSIS Report 2.

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As the U.S. media generally is focused on the Topps E. coli recall, Dick Kaukas, reporter for the Courier Journal has become “Mr. E. coli” over the last week covering what is arguably a far more tragic story.

Floyd County confirms two more E. coli cases - 10 now linked to outbreak at school

As Mr. Kaukas reported this morning:

The number of confirmed cases of the most serious form of E. coli climbed to 10 yesterday in Floyd County, with the two latest cases being ones that had been considered probable or suspected, the county Health Department said.

What is most concerning is the attack rate of HUS:

The number of people infected with E. coli in Floyd County has jumped to 10, including seven schoolchildren who suffered kidney failure and required dialysis machines [Developed HUS], health officials said Tuesday.

To put this in context, in most E. coli outbreaks you would expect to see 1 person with HUS for every 10 sick – not 7 out of 10.  In the dozens of E. coli outbreaks that we have been involve with since 1993, I have not see the attack rate fro HUS that high.  In the Finley School E. coli outbreak, only one child developed severe HUS.

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Erin Billups of Capital News 9 did a great interview of our clients last night.  The full interview and video can be found by clicking on the logo above.  Some of the best quotes are below:

"It was a typical, last day of summer camp -- water balloons, face painting, cheeseburgers and hot dogs. Didn't think anything of it. About three days later, she came down with what seemed to be a stomach virus," said Catherine Basila-McDonald.

Catherine and Robert McDonald thought it was a stomach virus. But when their 8-year-old daughter's symptoms got worse -- stomach cramps, slight fever and diarrhea -- they took her to St. Peter's Hospital. Tests later showed E. coli was to blame.  Her strain was a perfect match for those found in Topps Meat Company beef patties. The first detected in the state, she said it triggered the intense testing and recall.

"As a parent you're always worried about our child. It was an accident. It's terrible to be with your child in incredible pain and not know what you can do and not be able to to anything," said Basila-McDonald.

Basila-McDonald said, "We're saying to Topps, clean up your act because E. coli can happen, it can happen. But now that we're hearing that the factories are not living up to the safety codes and had to be shut down, then it's not just a random occurrence."

I am proud that the McDonalds had the courage to stand up for their daughter and to brave the gaggle of reporters camped out in front of their home.  More coverage of the story:

Suit sounds alarm on tainted meat

North Colonie family claims girl's illness linked to Topps hamburger, says legal action a warning for others

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UPI International has continued to follow the story of the second largest meat recall in U.S. history.

U.S. experts said the recall of frozen hamburger meat that may have been contaminated by E. coli is likely to create concerns of rising E. coli outbreaks. Last week's recall of 21.7 million pounds of Topps Meat frozen hamburger, which the U.S. Department of Agriculture has linked to 27 reported and three confirmed illnesses, comes three months after 5.7 million pounds of ground beef were recalled for E. coli-related reasons, USA Today reported Tuesday.

The American Meat Institute said a slight rise has been recorded in positive E. coli tests by the U.S. government over the summer. It's caused us to pause, Randy Huffman, vice president of the AMI Foundation, said to the newspaper. We've redoubled our efforts and focused on the things that work. The rate of positive E. coli tests has shrunk by 73 percent since 2000 but an increase was recorded in 2007 when compared with the preceding three years. Huffman said the rise could be the result of a random event.

As I said:

Something has changed and it has not changed for the better, Bill Marler, a prominent E. coli plaintiff's attorney, told USA Today.

By the way, this is a random event:

This is not:

Yes, I forgot (no I really did not) that this is not Topps first experience with E. coli O157:H7.  So, for those at Topps reading this post (I know who you are), we have been contacted by over a dozen potential victims.

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Staten Island Advance reported this morning:

Parents: Tainted hamburger sickened our daughter

A 12-year-old Great Kills girl has been hospitalized on Staten Island for E. coli poisoning and her parents are convinced she became sick after eating a helping of recalled hamburger meat. Brianna DiMartini, 12, is in the pediatric intensive care unit of Staten Island University Hospital, Ocean Breeze, more than a week after she had a hamburger made from Topps Meat Co. chopped meat, her parents told the Advance yesterday. Frank DiMartini, Brianna's father, said the family bought a package of meat -- part of the batch that was recalled -- from the Waldbaum's on Amboy Road in Eltingville.

Strangely, my first HUS, E. coli client’s name was Brianne Kiner. Her case eventually settled for $15,600,000 in 1993. 

Cathleen F. Crowley of the Albany Times Union wrote this afternoon about the lawsuit we filed:



Watervliet family sues over tainted meat

The family of a Watervliet girl who became sick after eating a Topps hamburger filed a lawsuit today in Albany County Court. The suit holds Topps Meat Company liable for the E. coli infection the girl suffered and seeks unspecified damages. Topps Meat Co. has been identified as the manufacturer of frozen meet patties that infected at least 25 people nationally, and several in New York. The 8-year-old Watervliet girl was hospitalized for several days starting on Aug. 22, but is expected to recover fully.

Firm Recalls Meat, Faces Suit

Topps Meat Co. last week instituted a voluntarily recall of about 331,582 pounds of frozen ground beef products because they may be contaminated with E. coli, according to the U.S. Department of Agriculture’s Food Safety and Inspection Service.  E. coli is a potentially deadly bacterium that can cause bloody diarrhea and dehydration. The ground beef was distributed to food service institutions in the New York metropolitan area and retail establishments nationwide. The USDA says an investigation into a cluster of illnesses in the Northeast led to a positive product sample in New York. News of the potential contamination sparked at least one law firm, Marler Clark L.L.P., P.S. in Seattle, to file a lawsuit against Topps in a New York court.  The firm says residents of New Jersey, Connecticut, Indiana, Ohio and Pennsylvania were reportedly affected by the E. coli outbreak.

Marler Clark E. coli Attorneys File Lawsuit Against Topps

A lawsuit was filed today against Topps Meat Company, the meat producer whose ground beef products have been identified as the source of an E. coli O157:H7 outbreak, and who expanded a ground beef recall to include 21.7 million pounds of meat over the weekend. The lawsuit was filed on behalf of Albany County, New York, residents Robert and Catherine McDonald and their young daughter, who became ill with an E. coli O157:H7 infection and was hospitalized after eating a hamburger made of Topps Meats ground beef on August 17th. The McDonald family is represented by the Seattle law firm, Marler Clark, and the upstate New York law firm Underberg & Kessler.

According to the lawsuit, the McDonalds' daughter fell ill with symptoms of an E. coli infection, including nausea, diarrhea, stomach cramps, fever, chills, and muscle aches on August 20. On August 22, she was admitted to the hospital, where she provided a stool specimen that later returned positive for E. coli O157:H7. She was released from the hospital on August 24, and continues her recovery at home.

"We saw massive recalls and countless illnesses and deaths due to E. coli-contaminated ground beef in the 1990s," said William Marler, attorney for the McDonald family. "Between 1993 and 2002, my clients were awarded $250 million in verdicts and settlements from the meat and restaurant industries. But in 2002, meat producers cleaned up their act. I touted the meat industry as a model for what an industry could do that was right to protect consumers."

"Aside from sporadic cases, outbreaks traced back to meat products have been largely absent in the last five years," Marler continued, noting that together with Underberg & Kessler Marler Clark represented another young Albany County child in a lawsuit against Topps two years ago. "2007 has been an anomaly in the meat industry, but now that outbreaks are happening, the industry needs to once again step up to the plate and compensate consumers for their injuries."

More from USA Today - well, Tuesday:

Meat recalls point to possibility E. coli threat is growing

Huffman (American Meat Institute) cautions the rise could simply be a "random event." But Bill Marler, the nation's leading E. coli plaintiff's attorney, says, "Something has changed, and it has not changed for the better."

Continue Reading...

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Peter Lattman - who blogs more than I do is at it again:

E. coli Outbreak Inspires Vanity-Plate Naming Contest

The nation’s meat supply is “the safest in the world,” a U.S. agriculture official said today, seeking to reassure consumers following the recall of 21.7 million pounds of ground beef by Topps Meat that may be contaminated with E. coli.

“I think the American meat supply is the safest in the world,” Dr. Raymond said in an interview. “A recall like this does show that we are on the job, we are doing our inspections, our investigation, and we respond when we find problems to make sure that supply is safe.”

The Law Blog checked in with foodborne-illness lawyer Bill Marler, of Marler Clark, the Seattle firm that has established a niche as the go-to place for victims of food-borne illnesses. We first got to know Marler during last year’s tainted-spinach crisis. He says he is working with ten individuals allegedly sickened by Topps meat, and is closely following the case on his blog. He also vehemently disagrees with Raymond.

“21,000,000 pounds of hamburger meat is recalled – that is 84,000,000 quarter-pound hamburgers – and Dr. Richard Raymond of the USDA says our meat supply ‘is the safest in the world?’” he said. “One would think that with hundreds of Americans poisoned that Dr. Raymond would not being the ‘cheerleader in chief’ for the beef industry but would be asking one simple question – ‘What is going on?’”

Law Blog Contest of the Day: We can’t get over the vanity plate on Marler’s wife’s car (see picture above). So we want to have our second installment of the Law Blog Vanity-Plate naming contest. An “ECOLI” license plate for a foodborne-illness lawyer sets a pretty high bar, but we’re confident that our readers will deliver. Please tell us your favorite (or least favorite) lawyer vanity plates, real or imagined.

While this is the first recall in Topps' 65-year history, it is not the first time the company has had problems with E. coli O157:H7. In 2005, a 9-year-old girl in Glenmont, N.Y., went into kidney failure after being infected with bacteria linked to a Topps beef patty.  Attached is the USDA Report from 2005.

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