Marler Blog - Providing commentary on food poisoning outbreaks & litigation

After nearly two years of work, we were able to settle today the last severe E. coli O121:H19 Hemolytic Uremic Syndrome (HUS) cases related to illnesses stemming in part from a teachers’ conference luncheon in June 2006.  According to the Weber-Morgan Health Department (WMHD), at least three attendees had contracted E. coli O121:H19 stool culture positive infections.  On August 2, 2006, the WMHD issued a news release indicating that those people had been infected with E. coli O121:H19, and that two of the individuals had developed HUS.  WMHD stated that the evidence indicated that all three people contracted E. coli from the same source sometime during June 27-30 at the Wendy’s restaurant in Ogden, Utah.  By August 7, WMHD officials had revised the number of outbreak victims to four, including three who had developed HUS.

WMHD further concluded that the source of the infection was contaminated iceberg lettuce prepared at the Wendy’s Restaurant and sourced from California.  One of the patients with confirmed HUS, who had not attended the teacher’s conference, ate cheeseburgers with iceberg lettuce at the Wendy’s Restaurant during the outbreak period.  The second confirmed HUS case was an attendee of the teachers’ conference, and a third case of HUS was determined to be secondary transmission from an infected person at the conference.

We represented all of the HUS and culture-confirmed cases.  Eventually, WMHD determined that at least 69 people had become ill in the outbreak.  Of those, three remained hospitalized for an extended period and were listed in serious to critical condition.  The settlement amounts are confidential.

I (www.billmarler.com) am off to Eastern Washington a bit later this morning to give a talk at the “Farm-to-Table” Conference. My talk is on “Hot Topics in Food Illness Litigation.” It is also a bit of a homecoming – I spent six years at WSU getting three bachelor degrees, four years on the Pullman City Council and eight years as a WSU Regent. The Conference topics are:

The Food Safety: Farm-to-Table Conference is back! The conference was initiated in 1991 and is offered through a collaborative effort between Washington State University and the University of Idaho. National and regional speakers present information on a variety of food safety issues, offering a professional development opportunity for state and local health authorities, Extension employees and food industry professionals. The conference offers networking opportunities to strengthen food safety partnerships in the Pacific Northwest. Topics reviewed at previous conferences include the following:

* Foodborne pathogens, such as Salmonella, E. coli O157:H7 and Campylobacter

* Food safety management programs, such as HACCP and Good Agricultural Practices (GAPs)

* Food-specific food safety concerns, including produce and seafood

* Regulatory aspects of food production

* Foodborne outbreaks

Robert Rodriguez of The Fresno Bee reported from the courtroom Friday in Hollister that the Superior Court judge ruled that the state had a rational basis for creating legislation that imposes a higher safety standard for Organic Pastures and Claravale Farms - California's two raw milk producers.  The new regulations set a limit of 10 coliform bacteria per milliliter of raw milk.  It's the same standard used for pasteurized milk.

Judge Tobias also granted the dairies a three-week suspension of the new law to allow their attorney to file an appeal.  The Judge also said.  "From the plaintiffs' standpoint, they should be dealing with their political representatives for legislative modification."

Mark McAfee, owner of Organic Pastures dairy (who I have sued on behalf of two childen sickened in a 2006 E. coli O157:H7 outbreak), said dairy officials are working with Sen. Dean Florez, D-Shafter, on a new legislative solution that sets a higher bacteria count along with a new food safety plan guiding dairy operation.  I have been following Mark McAfee, who I understand calls me "Marler Shark" - a play on the firm name, Marler Clark.

The following nine posts you might find interesting - 1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9.

New Jersey health officials announced today that the Salmonella outbreak at Princeton University appears to have been caused by an ill food service worker who touched (with what?) some shredded cheddar cheese.  Salmonella is a fecal bacterium that causes one of the most common enteric (intestinal) infections in the United States – Salmonellosis.

The New Jersey Health Department says there were 28 confirmed and 42 probable cases of Salmonella infections on campus between April 20 and May 2. ‚Ä®‚Ä® All the cases appeared to come from two food stations at the Frist Student Center.  A salad bar and the Ole Nuevo Latino food station were shut down on May 2, but reopened Monday.  Food workers at the campus center have been given refresher training on health issues, including wearing gloves and not working when they're ill.

Someone sent me this photo and asked me to guess where it is?  Other than heaven?  Where?

Another friend/attorney's kid just got elected President of his High School class - great to see he took after his mom.

I was reading today that Immigration and Customs Enforcement officials have said that 390 people have been arrested on immigration charges after Monday's raid at Agriprocessors Inc., in Postville, Iowa.  The facility is the world's largest kosher meatpacking plant.  According to INS officials, the raid was aimed at seeking evidence of identity theft, stolen Social Security numbers and people who are in the country illegally.

Now, here is a thought.  Killing and slaughtering cows is likely not a pretty job.  Perhaps, like the immigrants who took those jobs in the Chicago Packing Houses in “The Jungle,” these “immigrants” where the only folks interested in the work.  My guess is that they might also be pretty good at it.  So, who replaces these skilled, but undocumented workers?  US citizens who have no idea how to properly kill and dress a cow?  With the increase we have seen in E. coli O157:H7 cases in the last year, I wonder if adding unskilled, but US workers to the mix is good for the consumer?

See the full story - "Undercover worker aided agents" by JEFF REINITZ, Courier Staff Writer

Mick Trevey of WTMJ reported on documents discovered at the Cargill Meat Solutions plant in Milwaukee, also called Emmpak Foods, which processes more than 100 million pounds of beef every year.

Bill Marler is a lawyer who specializes in food borne illnesses. "It's a dirty, dirty business," Marler said.

The USDA's Food Safety and Inspection Service in various  "non-compliance reports" found problems in one part of Cargill's big operation in Milwaukee.

• In April of 2006, inspectors found a "scale well is filled with previous weeks of trash and debris." Inspectors also noted: "swinging doors are damaged (cracks), and covered with brown thick grease and other grime."

• The documents also show in December of 2006, inspectors saw "pooled amounts of standing water, blood, and debris" on the covers over combos of meat. One of those covers "was ripped" "exposing the product inside."

• In August of 2007, inspectors noticed a "heavy odor." They checked out the main scale and found drains under the main scale were filled with "standing water, debris, and meat trash."

KTRE 9 reports that Ashlyn Johnson was one of more than three dozen people who came down with salmonella last week.  They all attended a Relay For Life event at Roughrider Stadium in Center last Friday evening. Ashlyn's kidneys were failing so she was lifeflighted to a Shreveport hospital Tuesday night. She came home Friday, exactly one week after eating one scoop of some homemade ice cream that was sold at the event. Her mother said her daughter ate only the homemade ice cream that was made and served by a Center church. Ashlyn spent a week in the intensive care unit. She's now well enough to return to school on Monday. The Texas Department of State Health Services said the investigation is continuing and that no organism or specific sources for the illness have been confirmed yet, though some kind of food or drink served at the event is suspected.

You usually think of Hawaii for it's great weather and beaches (below).  But late last night it was announced that Palama Holdings LLC, a Kapolei Hawaii firm is voluntarily recalling more than 68,000 pounds of ground beef products because they may be contaminated with E. coli contamination.  Click in QuickTime Player Icon for Hawaiian News.  The following products are subject to recall:

• Six- and ten-pound boxes containing 1/4-pound and 1/3-pound "May's Teriyaki Beef Patties."

• 24-pound bulk boxes of "May's Beef Picnic Patties."

• Ten-pound boxes of "May's Beef Pattie, 3:1 Layer Pack."

• Three-pound trays of "May's Ground Beef Family Pack."

• Five- and ten-pound chubs of May's brand coarse ground and fine ground beef products.

See FSIS Recall Notice.

Tonight at 10:00: hundreds of millions of pounds of beef have been recalled over the last several years. Is the meat we eat, safe? Several recalls were for meat processed in Milwaukee. TODAY’S TMJ4 sent requests for federal inspection reports. The reports we got show problems at one part of Cargill's big operation in Milwaukee. We showed those inspections to people who closely watch the food industry, and they had plenty to say about food safety. Tonight, live at 10:00, you'll see exactly what the federal documents show, and you'll hear from a woman who got E. coli from tainted meat processed in Wisconsin.

“A lot of the problems that you see with respect to cleanliness, with respect to potential contamination problems, were things that were not just something that happened on a particular day, but as you can tell from the documents, some of the problems were long standing,” Attorney Bill Marler said.

Another hepatitis A case with a possible link to a Chipotle restaurant in La Mesa has been confirmed, bringing the number to 21, the San Diego County Health and Human Services announced Tuesday.  We filed suit today on behalf of 1 of the 21 today.

 Hepatitis A is commonly spread through fecal contamination due to poor hygiene.  Exposure can also occur when someone consumes food or water contaminated with the hepatitis A virus.  Symptoms of the disease include fever, fatigue, loss of appetite, nausea, abdominal discomfort, dark urine and jaundice.  We are or have been involved in representing families and children who have suffered from this virus:

Carl’s Jr. Hepatitis A Outbreak - Washington
Chi-Chi’s Hepatitis A Outbreak - Pennsylvania
Chipotle Grill Hepatitis A - San Diego
D’Angelo’s Deli Hepatitis A Outbreak - Massachusetts
Friendly’s Hepatitis A Exposure - Massachusetts
Houlihan’s Hepatitis A Exposure - Illinois
Maple Lawn Dairy Hepatitis A Outbreak - New York
McDonald’s Hepatitis A Outbreak - Washington
Quizno’s Hepatitis A Exposure - Massachusetts
Soleil Produce Hepatitis A Outbreak - California
Subway Hepatitis A Outbreak - Washington
Taco Bell Hepatitis A Outbreak - Florida

A lawsuit was filed today against Chipotle Mexican Grill, Inc., in San Diego County Superior Court for the recent hepatitis A outbreak linked to a La Mesa Chipotle restaurant.  Terry Wesley, the plaintiff, became infected with hepatitis A after eating in March and April at the Chipotle Grill on Fletcher Parkway in La Mesa, California.  Mr. Wesley is represented by Marler Clark, a Seattle law firm dedicated to representing victims of food borne illness, and Keeney, Waite, & Stevens, a San Diego area firm.  The lawsuit states Mr. Wesley developed symptoms of hepatitis A virus (HAV) infection on April 24, 2008 and required medical attention on April 25 and May 2, when his blood tested positive for hepatitis A. He remains ill and has not been able to return to work.

In late April 2008, San Diego County health officials announced that a number of HAV infections had been traced to the restaurant, located at 8005 Fletcher Parkway in La Mesa. Officials advised customers who had eaten at the restaurant between March 1 and April 22 that they might be at risk for infection.  As of May 1, twenty people who ate at the La Mesa restaurant have tested positive for HAV infection.  Four of those victims have contacted Marler Clark for assistance with their cases. 

Hepatitis A is a food borne virus that can be passed by infected food handlers to consumers.  The virus attacks the liver, and symptoms can include nausea, vomiting, abdominal cramps, dark urine, fever, chills, fatigue, body aches, loss of appetite, and later on, jaundice. In extreme cases, liver failure can result.  The virus has a long incubation period, and symptoms may not appear for fifteen to fifty days.  San Diego health officials continue to urge anyone who ate at the Chipotle Grill during the infection window (5/1/08-4/22/08) to get tested for Hepatitis A.

I was reading Bill Lambrecht’s article from the St. Louis Post-Dispatch this morning, “Seafood imports: worries growing,” and was struck by these quotes:

"As our system becomes more antiquated and more ineffective, the world is sending us their junk."

"When you look at less than 1 percent of shipments, and sample and test maybe one-fifth of those, there's no way you can protect the American food supply"

The quotes coming from Former FDA and FSIS officials commenting on the findings of inspectors checking Chinese seafood arriving at U.S. ports who found some unsettling discoveries: fish infected with salmonella in Seattle and Baltimore, and shrimp with banned veterinary drugs in Florida. According to Food and Drug Administration records examined by the Post-Dispatch, inspectors turned away nearly 400 shipments of tainted seafood in a year's time from China. The records told a troubling tale, but even more troubling was what they didn't tell. Only a tiny fraction of imports are inspected at all, and even fewer are tested.

In 15 years of litigating most of the foodborne illness cases in the United States, I have seen very few illnesses tied to fish products – imported or home raised. I wonder if some of the concerns raised over imports are simply being raised to protect home grown fish companies or if we are really seeing a fishy tale of increased imports or another opportunity for growth here at Marler Clark.

The problems with imports, home produced products and illness were also outlined in a recent report, Fixing Food Safety: Protecting America's Food from Farm-to-Fork, include:

The U.S. food safety system has not been fundamentally modernized in over 100 years;

Inadequate resources are spent on fighting modern bacteria threats, such as trying to reduce Salmonella or dangerous strains of E. coli;

An estimated 85 percent of known foodborne illness outbreaks are associated with foods regulated by the U.S. Food and Drug Administration (FDA), but the agency receives less than half of the federal funding for food safety;

In the past 3 years, the main food safety function at FDA has lost 20 percent of its science staff and 600 inspectors;

Gaps in current inspection practices mean acts of agroterrorism -- such as contamination of wheat gluten or botulism -- could go undetected until they are widespread;

While 15 federal agencies are involved in food safety, the efforts are fragmented and no one agency has ultimate authority or responsibility for food safety;

Only one percent of imported foods are inspected. Approximately 60 percent of fresh fruits and vegetables and 75 percent of seafood consumed in the U.S. is imported; and

States and localities are not required to meet uniform national standards for food safety.

The bottom line is that approximately 76 million Americans -- one in 4 -- are sickened by foodborne diseases each year. Of these, an estimated 325,000 are hospitalized and 5,000 die. Medical costs and lost productivity due to foodborne illnesses in the U.S. are estimated to cost $44 billion annually.

Salad Recall

Gourmet Boutique of Jamaica, N.Y., is recalling 35 types of fresh and frozen products, which were distributed nationwide. It includes various salads and other products. It is voluntarily recalling 286,320 pounds of meat products that may be contaminated with Listeria monocytogenes, according to the U.S. Department of Agriculture’s Food and Safety Inspection Service.

More information about the specific products included in this recall can be found on the USDA Web site.

Raw Milk Recall - Again

Consumers are also advised to discard tainted Raw Milk. Consumers who purchased raw milk from Green Acres Jersey Farm in Lebanon County, Pennsylvania, any time should discard it immediately due to the risk of Listeria monocytogenes contamination, Pennsylvania Agriculture officials said. Officials said during routine inspection of the dairy, a preliminary test showed the presence of Listeria bacteria in some raw milk samples.

Listeria Symptoms

Symptoms of Listeriosis include fever, muscle aches and sometimes, gastrointestinal symptoms such as nausea or diarrhea. If infection spreads to the nervous system, symptoms such as headache, stiff neck, confusion, loss of balance or convulsions can occur. Infected pregnant women may experience only a mild, flu-like illness, but infections during pregnancy can lead to miscarriage or stillbirth. Symptoms of Listeriosis can appear in four days to three weeks.

There are now eight confirmed cases of salmonella at Princeton University and health officials are investigating whether they are related to 80 other cases of stomach problems at the school.  A Princeton spokeswoman said those who tested positive for the salmonella bacteria had more severe symptoms than the others, who may have caught an unrelated virus.  The bacteria is most commonly transmitted through food. Local authorities have inspected the school's largest dining hall and the university has sent food samples to a lab.  For more updates, see the student paper:

Campus sees gastroenteritis spike - McCosh Health Center observes symptoms in 50 to 60 students



Salmonella is one of the most common enteric (intestinal) infections in the United States. Salmonellosis (the disease caused by Salmonella) is the second most common foodborne illness after Campylobacter infection. It is estimated that 1.4 million cases of salmonellosis occur each year in the U.S. - 95% of those cases are foodborne-related. Approximately 220 of each 1000 cases result in hospitalization and eight of every 1000 cases result in death. About 500 to 1,000 or 31% of all food-related deaths are caused by Salmonella infections each year. Salmonellosis is more common in the warmer months of the year.

Salmonella infection occurs when the bacteria are ingested, typically from food derived from infected food-animals, but it can also occur by ingesting the feces of an infected animal or person. Food sources include raw or undercooked eggs/egg products, raw milk or raw milk products, contaminated water, meat and meat products, and poultry. Raw fruits and vegetables contaminated during slicing have been implicated in several foodborne outbreaks.

Thank you Governor Locke and thank you WSTLA for this honor.  For those who know me well, know that this honor is not mine alone. It is an honor shared with my law partners, Bruce Clark, Denis Stearns and Andy Weisbecker and associates and staff who have all long suffered in my presence.  Thanks to my wife of 20 years, Julie, who kept food on the table and the mortgage nearly always paid before the Jack-in-the Box case settled in 1995.  Thanks to my beautiful, talented and strong daughters, Morgan, Olivia and Sydney. Thank you for not making me feel too guilty for missing more than my fair share of your events.  A very special thanks and honor to my Mom and Dad. Dad, I am glad that you have tolerated me for nearly 51 years.  In closing, I want to share with you a letter I recently received from the daughter of a Nebraska woman who died of an E. coli infection after eating something as simple as a spinach salad in 2006:

“Dear Bill:

As we approach the conclusion of Ruby’s case, I wanted to thank everyone there for your work on behalf of my family. Though this letter is addressed to you, it is meant for everyone at the firm. It takes a dedicated and very hardworking team to collect, sort, file, retrieve, assemble, analyze and present all the material involved in an action such as this. Though I know this case came at an extremely busy time for Marler Clark, each of you accomplished your work with seeming ease, all the while making us feel as though we were your only client.

However, the real joy in our association with Marler Clark was the tremendous effort each of you exerted in trying to effect positive change within the food industry. Your work to assure food purity along the entire food chain, from production, packaging, shipping and preparation, really sets the Marler Clark team apart from the crowd.

Though nothing will bring my mother back and no amount of money could ease the heartache of losing her, your efforts have been very fruitful. Having her illness and death held up to the light, for all to see, has done a great deal to create awareness and remedy the problem of leafy green E. coli illness and death. Television programs from both Dateline and CNN were viewed by millions, California continues to move toward adoption of three critical pieces of food purity legislation, the Federal Government is aware of the problem, Natural Selection Foods conducts pre-packaging purity testing and hopefully, we are a few steps closer to the acceptance of irradiation. I am confident that these changes were initiated or greatly accelerated because of Marler Clark’s proactive crusade for safer food supply.

At the end of the game each of you can be glad of the legal victories you achieve on behalf of your clients. But your real pride should come from the knowledge that you have helped make the world a better place and saved many from the ravages of poisoned food. My family hopes that no one should go through what my mother did; each of you has helped bring that dream closer to reality. We give our thanks to each and every one of the Marler Clark team!”

As you can well imagine, I am proud to be associated with the people in my firm. I am proud to be a trial lawyer. I am proud that as trial lawyers we all give voice to people like Ruby. Thank you.

The bust is of Justice Louis Brandeis and the inscription reads:  "In recognition of your trail blazing efforts to keep our nation's food supply safe for consumers."

Also, just revamped www.billmarler.com.