Marler Blog - Providing commentary on food poisoning outbreaks & litigation

So, here is the rub: Richard Raymond, the USDA undersecretary for food safety, said USDA regulations prevent the department from disclosing Hallmark/Westland's customers because such information is considered proprietary. Food safety groups have argued for lifting that restriction, saying it would give consumers more information during recalls, while some food industry groups have opposed it.

So, it is really time to change the rule. Recalls should be real, they should be complete and they should be transparent. The goal should be to protect consumers not a company’s customer list.

Bill Marler, a Seattle attorney who specializes in E. coli litigation, said it took the USDA and Kroger too long to announce the recall. He said it’s rare for this many people to get sick before the announcement of a recall.

“They have certainly known for days, if not a week, that the epidemiological evidence was very strong that it was hamburger,” he said. “They should have done everything they could to get these products off the market.”

The tomato epidemic is not the first the country has seen, but is the largest since an outbreak in 2004 sickened 564 people, said William Marler, a Seattle attorney who specializes in food contamination cases.

Marler has been involved in seven of the last 12 salmonella cases involving tomatoes in the last decade. However, this is the only one that has involved the salmonella Saintpaul strain, he said.

Overall, salmonella outbreaks linked to raw tomatoes are common. The CDC estimates salmonella poisoning from raw tomatoes has sickened as many as 79,000 people in 12 multi-state outbreaks since 1990.

The epidemiological investigation has narrowed the problem to raw red plum, red Roma or red round tomatoes. And the evidence suggests the tainted fruit came from Florida, where farmers were harvesting when the earliest known victim fell ill on April 10.

Florida "fits with the time frame," and investigators have not found evidence that could rule out the state, David Acheson, the Food and Drug Administration's associate commissioner for foods, said Thursday in a conference call with reporters.

He said contrary to some earlier reports, he knows of no evidence showing tainted fruit came from Mexico.

The CDC

Escherichia coli O157:H7 Infections in Children Associated with Raw Milk and Raw Colostrum From Cows --- California, 2006

Five of six patients reported they had consumed brand A raw dairy products in the week before their illness onset; the sixth patient denied drinking brand A raw milk, although his family routinely purchased it. Among the five patients who consumed brand A dairy products, two consumed raw whole milk, two consumed raw skim milk, and one consumed raw chocolate-flavored colostrum. Four of the five patients routinely drank raw milk from dairy A. One patient was exposed to brand A dairy product only once; he was served raw chocolate colostrum as a snack when visiting a friend. No other food item was commonly consumed by all six patients. No other illness was reported among household members who consumed brand A dairy products.

The salmonella outbreak that has sickened at least 167 people in 17 states isn't bad enough to generate national food-safety laws, said a leading lawyer specializing in food-borne illness cases.

"It is going to take, unfortunately, an outbreak like the Jack in the Box outbreak in 1993, where you had 600 people sick and four little kids die," said Bill Marler, a Seattle lawyer.

The current outbreak, which dates to mid-April, probably is larger than is being reported, he said.

"For every person they are counting, there are about 40 other people who got sick that they are not counting," Marler said. "This outbreak is a lot bigger than 167 people. It is 40 times that number."

"The dilemma is if they don't recall the tomatoes and someone gets sick, then they're going to really look foolish," he said.

“The problem now is that the buyers and even the food safety people at these buying organizations lose control once FDA issues a statement. Then it puts things into legal parlance, and all the lawyers can think about is Bill Marler, plaintiff’s food safety lawyer par excellence, stroking his chin thoughtfully as he questions the CEO of one of these big chains while on the witness stand: “So, sir, you elected to buy tomatoes from Mexico even though you knew that the FDA, the official food safety expert of the federal government of these United States, had specifically advised you not to do so?”

Salmonella is not as deadly as E. coli, but it can kill, said Bill Marler, a Seattle attorney who specializes in winning settlements for victims of food poisoning.

"About 1.4 million Americans get salmonella poisoning every year, and about 76,000 get E. coli poisoning," he said. Salmonella also kills more people - particularly the elderly, about 600 a year, he said.

The FDA hasn't traced the origin of the Salmonella Saintpaul outbreak, but a New Mexico Department of Health official told the Albuquerque Journal last week that preliminary information points to Mexico as the source.

From a growing-season perspective, that would make sense, some tomato safety experts say.

"I wouldn't be surprised, because it's the right time of the year," said Bill Marler, a Seattle attorney who specializes in food contamination cases, including some involving tomatoes.

FDA Warns Consumers Nationwide Not to Eat Certain Types of Raw Red Tomatoes

Arkansas, California, Georgia, North Carolina, South Carolina, Tennessee, Texas, Belgium, Canada, Dominican Republic, Guatemala, Israel, Netherlands, and Puerto Rico.

According to the CDC

[The FDA] said the tomatoes may have come from one region, similar to the spinach E. coli outbreak in the fall of 2006.

During August and September 2002, a Salmonella Newport outbreak affected the East Coast.  Ultimately, over 404 confirmed cases were identified, in over 22 states.  Epidemiological analysis indicated that tomatoes were the most likely vehicle, and were traced back to the same tomato packing facility in the mid-Atlantic region.

In early July 2004, as many as 564 confirmed cases of salmonellosis associated with consumption of contaminated tomatoes purchased at Sheetz Convenience Store were reported in five states, Pennsylvania, Maryland, Ohio, West Virginia, and Virginia.  Seventy percent were associated with tomatoes in food prepared at Sheetz convenience stores.

In 2006 two outbreaks of Salmonella-tainted tomatoes where reported by the FDA.   One was blamed for nearly 100 illnesses in 19 states.  FDA also traced tomatoes involved in another outbreak involving 183 people in 21 states.