Marler Blog - Providing commentary on food poisoning outbreaks & litigation

The first lawsuit stemming from the Salmonella outbreak that has sickened 1319 people, hospitalized 255 and caused the death of 2 in 43 states, the District of Columbia and Canada was filed today in the District Court of Montezuma County, Colorado. The complaint was filed on behalf of Delores, Colorado resident Brian Grubbs against Wal-Mart and an unknown supplier, referred to as “John Doe”.

The lawsuit states that the Grubbs family purchased raw jalapeno peppers from the Wal-Mart Supercenter in Cortez, Colorado in late June, and that Mr. Grubbs ate them over the next week. He fell ill on July 3, experiencing nausea, vomiting, fever, chills, and diarrhea. Over the next several days, Mr. Grubbs’ condition continued to worsen; he lost a great deal of weight, was severely dehydrated, and could not walk without assistance. His wife drove him to the Northern Navajo Medical Center in Shiprock, New Mexico, where he was treated for dehydration and decreased kidney and liver functions. Samples taken at the time later revealed that he was positive for salmonella Saintpaul.

“Consumers believe that retailers like Wal-Mart know the quality and safety of products they sell,” said William Marler, the Grubbs’ attorney. “Retailers benefit from that trust, and must be held accountable for the products they sell.”

The Grubbs family still possessed some of the peppers that Mr. Grubbs had consumed, and provided them to authorities. Tests revealed that the peppers were tainted with salmonella Saintpaul, and provided one of the first reported physical links in the three-month-long search for the source of the outbreak.

Salmonellosis illnesses from the Saintpaul strain began showing up in Texas and New Mexico in late April, and in early June the CDC linked those illnesses to raw tomatoes and issued consumer warnings. Advisories were widened to include foods commonly consumed with tomatoes, such as peppers, cilantro, and onions, then narrowed to raw jalapeno and serrano peppers. On July 30, the FDA confirmed the presence of salmonella Saintpaul at a farm in Mexico, both in irrigation water and on produce. The investigation is continuing. (A full timeline of the outbreak can be found here.)

Salmonella is a bacterium that causes one of the most common intestinal illnesses in the US: salmonellosis infection. It can be present in uncooked or undercooked meat, poultry, eggs, or unpasturized dairy products, as well as other foods contaminated during harvest, production, or packaging. Symptoms can begin 6 to 72 hours from consumption, and include diarrhea, abdominal cramps, fever, nausea, and/or vomiting. In most victims, symptoms will lessen over a period of 10 days to 2 weeks, although it may take months for body functions to return to normal. In others, the infection can lead to more severe illnesses such as typhoid fever and bacteremia. There are many strains of the bacterium; salmonella Saintpaul is a fairly common serotype, but the specific subtype, or fingerprint, associated with this outbreak is very rare.

So, Senator Obama's Food Safety Bill landed in my inbox about a minute ago.  I have not read it, but thought I would get it out to my avid blog readers.  I'll comment on it between dealing with more meat and produce recalls.  The Bill is S. 3358 - “A bill to provide for enhanced food-borne illness surveillance and food safety capacity.”

Click on the above.  If that does not work, email me at bmarler@marlerclark.com.  After a quick read, my thoughts are that Obama is right on the mark - a very great start.  However, at a funding level of only $25,000,000 per year, perhaps a bit light on funding.  Highlights of the Bill are:

• Enhance Food-borne Illness Surveillance

A.  Inform and evaluate efforts to prevent food-borne illness
B.  Enhance the identification and investigation of, and response to, food-borne illness outbreaks
       1.  Coordinate and improve food-borne illness surveillance systems between local, state and federal governments to more rapidly support outbreak investigations.
       2.  Share data, stool and food isolates between local, state and federal governments AND the public.
       3.  Improve epidemiological tools, expand genetic fingerprinting capacity, annual reports on food-borne illness surveillance and outbreaks.
       4.  Establish long-term follow-up of late complications of food-borne illnesses.
       5.  Support scientific research.

• Establish Food Safety Working Group

A.  Consisting of local, state and federal government food safety AND industry AND consumers to make recommendations for:
       1.  Prioritizing needs to prevent food-borne illnesses.
       2.  Improving access to food-borne illness surveillance data.
       3.  Reducing barriers for improvements for reducing food-borne illness.

• Improve Food Safety Capacity

A.  Strengthen oversight of food safety at retail level.
B.  Strengthen capacity of state and local agencies to carry out inspections of food processing establishments.
C.  Survey state and local capacities and needs for enhancement with respect to:
       1.  Staffing levels and expertise.
       2.  Laboratory capacity.
       3.  Information systems.
       4.  Legal authority for roles in national food safety system.

• Implement Food Safety Plan

A.  Assess adequacy of capacity to perform food safety functions of government.
B.  Action plan to meet highest priority capacity needs.
C.  Improve coordination and information between local, state and federal food safety agencies.
D.  Grants to local and state government to enhance food safety capacity and programs.


OK, he had me at hello.  My thoughts on the topic can be found at "Tainted Food: How To Combat Food Poisoning in the United States? Mr. McCain, Mr. Obama, are You Paying Attention?"

Lou Dobbs must be dancing in the streets.

Dr. Acheson of the FDA testified today to a packed Hearing of the Energy and Commerce Committee that the FDA found Salmonella saintpaul, the salmonella outbreak strain that has sickened at least 1,307 people since April, on a Mexican farm. However, the CDC also reported today that:

It appears likely that more than one food vehicle is involved in this outbreak. It cannot all be entirely accounted for by a single food item. By themselves, tomatoes cannot explain the entire outbreak, nor do jalapeno peppers explain all the clusters. It appears likely that more than one food vehicle is involved. Although rare, more than one food has been implicated in foodborne outbreaks in the past.

At present, information indicates that jalapeño peppers and Serrano peppers grown harvested, or packed in Mexico are the cause of some clusters and are major food vehicles for the outbreak. Although tomatoes currently on the market are safe, raw tomatoes consumed early in the outbreak are still under investigation. The outbreak strain of Salmonella Saintpaul has been isolated twice from jalapeno peppers and once from Serrano peppers.

So, it is clearly linked to Jalapenos and Serrano peppers. Tomatoes, however, remain suspect for those illnesses that occurred in the beginning of the outbreak – April, May and early June.

So, what’s with Nebraska Beef? Nine people in southeast Nebraska have tested positive for E. coli infections, and health officials said a community event may be to blame for some of the illnesses. E. coli at nother potluck?

The Centers for Disease Control and Prevention (CDC) estimates that every year at least 2000 Americans are hospitalized, and about 60 die as a direct result of E. coli infections and its complications. A recent study estimated the annual cost of E. coli O157:H7 illnesses to be $405 million (in 2003 dollars) which included $370 million for premature deaths, $30 million for medical care, and $5 million for lost productivity (Frenzen, Drake, and Angulo, 2005).

I had a nice chat last week with one of the three “Haphazard Gourmet Girls.”

The Haphazard Gourmet Girls are big fans of Bill Marler, the foremost food poisoning attorney in the United States. Mr. Marler, of Seattle's Marler Clark law firm, has made a career of very successfully suing high-profile Food Industrial Complex corporations, and also writes the excellent, erudite, highly informative Marlerblog, which covers all kinds of foodborne illness issues.

I usually am a bit shy when interviewed.  However, Eddie/Chef Couture – “Editor in Beef,” got the better of me.  Some of my best quotes from her post:

• Many people--including me--think Bill Marler is a modern-day superhero for his tireless work fighting Foodie crimes of poisonings, but his closest friends won't have him over for dinner, and his wife worries, only half-jokingly, that one day he'll wind up "crushed into meat patties somewhere in Omaha."

• What else happens when you’re brutally aware that one of the most fundamental human behaviors can also, accidentally and haphazardly, have profound mortal consequences?  "I drink a lot," Mr. Marler says, dryly, and chuckles.
  

• "I'm probably the only guy in America who walks down the meat aisle in a supermarket and thinks cowsh*t, cowsh*t, cowsh*t," Mr. Marler says, almost gleeful.

• “It really does drive me insane when I see the food-channel types extolling the virtues of raw milk without making it clear there’s a risk," Mr. Marler says. “If you’re a little kid or an elderly person or pregnant, raw milk can be deadly. There's got to be that balance between the food pornographer side of us and the safety side, and the raw milk people just ignore that.”

• "Beijing is not a bland place," Mr. Marler says. "You can get bull penis in a restaurant made five different ways. I went to a lot of banquets where they were serving just nasty stuff--I still have no idea what it was."

• So, given the huge amount of time Mr. Marler spends traveling by air, does he eat on planes?  "I have a couple of Scotches every time I'm on a plane, and I've never gotten sick," Mr. Marler says.

• Did Mr. Marler eat tomatoes during the most recent two-month recall extravaganza?  "Yes. I just got lucky,” he says. “And I only ate tomatoes with wine....dip a jalapeno in Scotch, and you can probably eat one with no problem."

There seems to be a common thread in my quotes.

According to Ohio Health officials in southwest Ohio, six people have become sick with E. coli O157:H7 in Montgomery County in recent weeks, leading to a ground beef recall from three markets.  Dorothy Lane Market is asking consumers to return ground beef products sold at all three of its stores with sell-by dates between June 9 and July 29.  The company says two of the sickened people are associated with their beef.  Dorothy Lane Market says the recall is linked to the same processing facility in Nebraska that forced Cincinnati-based Kroger earlier this month to have a national beef recall at its stories.

This was taken by my oldest daughter, of my middle daughter, last summer when we were on the Great Barrier reef searching for our relatives.  The scientific classification of sharks:
Kingdom: Animalia - Phylum: Chordata - Sub phylum: Vertebrata - Class: Condrichthyes - Subclass: Elasmobranchii - Super order: Selachimorpha

This summer, with Tomatoes or Peppers with Salmonella and E. coli once again in Nebraska Beef, there is little time for family reunions.

E. coli cases are such an everyday announcement now days, I have trouble keep up with them on the blog.  Here are a few over just the last twelve hours.

York Officials Confirmed E. Coli Case

A health official says restaurant food and a recent meat recall have been ruled out as possible sources of E. coli that sickened at least two people in southeast Nebraska. The cases were reported to the department on Tuesday.

More E. coli lawsuit expected

A law suit filed Monday against Nebraska Beef, who the Public Health Department reports sold E. coli tainted meat to a Moultrie restaurant, may not be the only local complaint filed.

Cargill Meat Recalled - Again

Fresno, California - Beef Packers, Inc., a Fresno, California, firm, is recalling approximately 1,560 pounds of beef cheek 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 following products are subject to recall: 30-pound boxes of “CARGILL MEAT SOLUTIONS CORPORATION, BEEF CHEEK MEAT - SM BX.”

E. coli patient hospitalized 3 weeks

Laura Comer spent three weeks in the hospital. Suspect plasma was flushed out of her body and replaced with fresh quantities. Seven doctors treated her, some of them quoting mortality rates. All because of something she ate.

No comment necessary, just click on document below to download:

In breaking news this evening, Connecticut state inspectors are investigating raw milk from a Simsbury dairy farm after reported illnesses.  The State Department of Agriculture is looking at whether the raw, unpasteurized milk from Town Farm Dairy on Wolcott Street is responsible for making people sick after a number of illnesses have been reported.  The dairy has voluntarily shut down production and its store while inspectors investigate.

We are representing a young boy sickened with Hemolytic Uremic Syndrome by E. coli O157:H7 in Missouri.  Press reports - Raw milk thought to sicken one with E. coli O157:H7 in Missouri.  Radio station KSMU reports in this podcast that a local resident has contracted E. coli O157:H7 and that raw milk appears to be a risk factor.  Hear it all at KSMU News.

We are also investigating a guillain-barre syndrome case from Crescent City, California that was caused by a Campylobacter infection induced by raw milk consumption.  The victim has been hospitalized on a ventilator now for 5 weeks.

We are also continuing litigation on behalf of two children who suffered severe E. coli O157:H7 infections (HUS) after consuming raw milk products produced by Organic Pastures.

Only showing how our food system is truly global, today, US government inspectors have found Salmonella Saintpaul, the strain responsible for a nationwide food-poisoning outbreak, in Mexican-grown jalapenos in a Texas plant, prompting a new warning for consumers to avoid eating fresh jalapenos.

However, the FDA continues to say that it doesn't mean Mexican jalapenos are the culprit — the pepper may not have been contaminated on the farm. And while tomatoes currently are safe to eat, health officials also said the finding doesn't exonerate tomatoes that were sold earlier in the spring and summer.

Ouch, that makes my head hurt.  Phyllis Entis from Efoodalert raises a number of issues and questions that still need to be resolved:

1. Is the Salmonella Saintpaul that was found on the jalapeño pepper identical to the outbreak strain?
2. Where did the contamination originate – on the farm in Mexico, at the produce distributor, or somewhere in between?
3. Is there any connection between the contaminated jalapeño and tomatoes?
4. Does the distribution pattern of the jalapeño peppers correlate with the geographic distribution pattern of lab-confirmed outbreak cases?
5. What other produce does the McAllen distributor handle, and is there any chance that these other produce items might become contaminated through cross-contamination at the distributor?
6. Are any of these peppers still available for sale in retail stores?
7. Are any of these peppers still in the food service distribution network or in restaurant kitchens?

It is time politicians take notice – a recent poll found:

• Nearly half (46 percent) of consumers have changed their eating and buying habits in the past six months because they're afraid they could get sick by eating contaminated food.

• An overwhelming number (80 percent) support setting up a better system to trace produce in an outbreak back to the source, the poll found.

• Three in four people remain confident about the overall safety of food.

• The survey found gender, racial and economic gaps on attitudes about food safety. Women, who do most of the shopping, were more concerned than men. For example, 39 percent of men said they were "very confident" that the food they buy is safe, but only 23 percent of women said they felt that way. However, men and women agreed on the need for better federal oversight.

• 80 percent of Americans would support new federal standards for fresh produce.

• 86 percent said produce should be labeled so it can be tracked through layers of processors, packers and shippers, all the way back to the farm.

Well at least “The Haphazard Gourmet Girls” are paying attention:  "Bill Marler: The Avenging Angel Of The Chowpocalypse:"

Once again, Bill Marler, the leading genius watchdog of the Food Industrial Complex and an incredibly even-handed analyst, parses the where, how & why of contamination outbreaks with an excellent summation of E. coli issues.

And, the “Food Law Guy:”  Improving Food Safety: Insights from Intensive Care

Paraphrasing Tom Sawyer, a person who takes a bull by the tail once, learns sixty or seventy times more than a person who hasn’t.  Perhaps no one has seen the inside of as many intensive care units for foodborne illness as Bill Marler.  Gain some of Marler’s insight on improving food safety by reading his latest commentary, “E. coli O157:H7 is a powerful and deadly bacterium.”

“You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin. Ten to 50 will kill your child or your grandmother."

And, the “Food Snark:”  Bill Marler, Food Czar, Cries Out (Again)

Some lawyers want better BMWs, food poisoning lawyer Bill Marler wants to see fewer kids die from E. coli O157:H7.  He does everything he can to raise awareness of the powerful deadly bacteria in hope to see fewer kids lose their kidneys, even when that means driving around in an ugly VW bug with ECOLI on his license plates and taking shit from Tort Deformists who have dubbed him an ambulance chaser.

I’ve called Bill Marler “Batman” for a while now, partially because he could use a bat-plane for all the traveling he does, but also because he truly is a superhero to the children whose lives would be lost without him.  However, I think it’s about time to upgrade him to Food Czar, because he’s already king of the industry, and he’d look good in a crown.

Honestly, Bill Marler is the only lawyer I know who works so hard every day to try to put himself out of business.

And, Jane Genova of “Law and More:”

... I don't hear a peep from presidential candidates Barack Obama and John McCain about making sure what children wind up putting in their mouths is safe - whether that's food, milk, or a toy imported from China. Is it true, as the article in FORTUNE by Marc Gunther claims, that government is increasingly less in the loop on consumer safety issues? Replacing it, documents Gunther, are the new watchdogs: Industry, plaintiff lawyers, and citizen activists....

I envision a cabinet-level position. We can call its head The Food Safety Czar. Right now the best-qualified pro in that field seems to be Bill Marler of Marler Clark. Google his name and you'll see what I mean. Or you can read some of the testimony he delivered on Capitol Hill - Download Testimony here.

And, the Food Law Prof Blog, “Food Czar Bill Marler on E. coli and Food Safety”

And, the Fanatic Cook, "For His Work In Food Safety, Bill Marler Deserves A Spot In The Next Administration"

There are times when a man would do well to win a certain job. And there are times when a job would do well to win a certain man.

The job of Food Safety Czar in this country would do well to win Bill Marler.

This country does not currently have a Food Safety Czar. It needs one. Someone to cut through the muck that swaddles numerous, discrete food-related government agencies. Someone with a history of going to bat for consumers, a successful history. Someone with a tireless passion for this work.

To the next President: If you intend to make food safety a priority, you'll want Bill Marler in your cabinet.

Efoodalert weighs in:  I propose that the next President form an independent Food Safety Commission. The Commission should be non-political (as opposed to by-partisan), and should receive testimony, briefs and proposals from industry, academia, consumers and regulators. The mandate should include:

1. Determine a current estimate of food-borne disease in the United States;
2. Recommend improvements to the current methods for reporting illnesses and detecting incipient outbreaks;
3. Review the present US food safety regulatory structure and compare its effectiveness with food safety regulatory structures adopted by other countries; and
4. Propose a new US food safety regulatory structure designed to respond more effectively to the current state of the US domestic and imported food supply.

It is vital that such a Commission be headed by an individual who does not owe loyalty to industry, regulators, or lobbying organizations. An individual who has no political axe to grind. An individual whose primary goal is to do whatever it takes to improve the safety of the country's food supply.

Bill Marler, are you listening?

Loud and clear.

You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin.  Ten to 50 will kill your child or your grandmother.

More likely due the expertise of Children’s Hospitals, and other top medical centers around the country, deaths at times are avoided, however, often not before Hemolytic Uremic Syndrome (HUS) nearly kills.  HUS, a complication from an E. coli infection, can cause severe damage to kidneys, intestines, and pancreas.  Falling into a coma and suffering further from cognitive impairment are all too common.

I’ve seen the inside of too many of those Intensive Care Units with families who are scared senseless as they watch their children or mother shutdown.  For 15 years, this has been my world.   When I was an undergraduate, I read Upton Sinclair’s, The Jungle.  That book took the American public on a tour of the contaminated underbelly of the meat industry and they were sickened.  It led to the Pure Food & Drug Act and the Federal Meat Inspection Act, versions of which are still in place today.

Until 1993, I thought—because of those laws—that the United States had a safe and secure food supply. But, then came the Jack-in-the-Box E. coli outbreak.  It killed four, and sickened hundreds, including many who were gravely ill with HUS and related complications.  Many of those victims became my clients.

Once again, there was a public outcry for safe meat.  The Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System.  Based on research and practices of the U.S. Space Program, the risk management system established checkpoints at every phase of meat processing.

The presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act.  I continued to sue “Big Meat” as most of my clients up to 2002 were children who were made sick by eating E. coli contaminated meat.  I recovered over $350 million during this period from the meat industry and the restaurants they supplied in verdicts and settlements on behalf of those clients.  In 2003 recalls of meat laced with E. coli began to decline.  After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006.  The Centers of Disease Control and Prevention saw E. coli – related illnesses drop 48%.

But then came Spring 2007. E. coli, which begins its life in the hindgut of a cow, mounted a surge on its home court.  And, it came back with a vengeance.  Thirty-three million pounds of beef would be recalled in 22 incidents.  All over the country, slaughterhouses, packing and distribution centers, retail outlets, and restaurants were once again testing positive for E. coli and people-mostly children-were getting seriously sick.

The American meat supply, which had again been touted as safest in the world, tumbled back into disarray.  But, why?

As with any unexplained mystery, theories abound.  Could it really just be meat industry complacency?  Did everyone respond to the good numbers in 2006 by taking a long nap?  Did meat processors slack off—consciously or unconsciously—and relax their testing procedures?

Or could it be better reporting?  Doctors are more aware of E. coli now, and perhaps when patients present symptoms of food poisoning; tests are more likely to be ordered.  When the presence of E coli is found and reported, a recall is triggered.

There’s always global warming.  Seriously though – very smart people have posited that droughts in the southeast and southwest have launched more fecal dust into the air, which then finds its way into beef slaughtering plants.  It has also been suggested that the deluging rainfall in other areas created muddy pens—an ideal environment for E. coli.

While we’re at it, why not blame high oil prices?  High gas prices have fueled (sorry) the growth of ethanol plants.  These plants are often built next to feedlots, and a byproduct of the ethanol production process—distiller’s grains—is considered an excellent (and cheap) alternative to corn for cattle feed.  Unfortunately, research at Kansas State University associates the use of distiller’s grains as feed with an increase in the incidence of E. coli in the hindguts of cattle.

Another controversial issue may affect the meat supply.  The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country in the fall of 2006.  Experienced—albeit undocumented—workers have been cleared out and replaced with unskilled, inexperienced labor.

And then there’s Darwin.  Another theory holds that interventions have caused the wily E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.  E. coli back in our meat cannot be tolerated.  We’ve got a lot of summer of 2008 left. Summer has always been kind to the E. coli bug.  More than 5.6 million pounds of E. coli contaminated beef has been recalled so far in 2008, most supplied by Nebraska Beef Ltd., via the Kroger Grocery chain.  All of which is responsible for a multi-state outbreak of E. coli that again is filling up the ICU’s in Hospitals in the seven states.

What is being done?  Not much.

Congress has held some hearings, but the only new reform is that the names of retail stores that received meat and poultry involved in recalls with high health risk will be made public.  Good as far as it goes.

However, despite 76,000,000 American’s being sickened, 325,000 hospitalized and 5,000 deaths each year, food safety has not made it as a Presidential campaign issue.  Congress, Democrats and Republicans, have about run out its clock.  But E. coli is back in our meat and we better care.

Solutions?

No surprise to the folks sitting in the ICU waiting room of the Archbold Hospital in Thomasville, Georgia who I met with today.  Three women in ICU with families at their side – life should not hang in the balance at age 70 after going to a local restaurant you have visited for years.  A teenager should not be at risk of kidney failure after eating a burger.  An adult man should not lose weeks of work for eating out.  There are at least eight, and likely more to be counted, in the largest E. coli outbreak of 2008 - so far.

I only wish the lawyers and corporate executives of food companies could spend time with these families.  Perhaps if they saw what I saw today they would get the cow shit off their product.

I left Minneapolis at 6:00 AM this morning, flew to Memphis, then to Tallahassee and drove to Thomasville.  I just made it back to Seattle at 10:00 PM after retracing most of my steps.  It has been a long day.

Well, on to the news - according to a recent news report, Georgia has one lab-confirmed case (the rest will be counted soon) of a bacterial infection that is a molecular match to 44 previously reported cases in Michigan (where we will file suit next week), Ohio (where we have filed two suits), Indiana, Kentucky and New York, according to the U.S. Centers for Disease Control and Prevention.  However, Georgia health officials are investigating at least seven more cases of E. coli, all of them in Colquitt County.  Beef from a Moultrie restaurant tested positive for E. coli and that beef has been linked to Nebraska Beef Ltd.

The outbreak has been traced to beef sold in Kroger supermarkets in Michigan and Ohio.  Kroger last month recalled (after some prompting) ground beef sold in Michigan and Ohio stores, and then this month expanded it to include other states.  Nebraska Beef Ltd. supplied the meat, ultimately recalling (after even more prompting) 5.3 million pounds of beef.

The local paper, the Moultrie Observer reported, "Local E. coli case linked to national outbreak."

• The CDC has now determined that it fit their case definition for the outbreak that began in Michigan and Ohio.

• CDC announced that New York, Kentucky and Indiana each had a lab-confirmed case of bacterial infection that matched the clusters in Michigan and Ohio that had been traced to beef sold in Kroger supermarkets. With the inclusion of Georgia, six states are now linked to the outbreak.

On a day that another politician, this time the Florida Governor, said: "we continue to have the safest food supply in the world;" on a day that I finally get one of my Op-eds published, thanks goes to Undersecretary for Food Safety (FSIS) Richard Raymond, and Agriculture (USDA) Secretary Ed Schafer for announcing plans to tell the public which grocery stores and other retailers have received tainted meat during “Class I” recalls.  Consumers now can finally be told if their local grocery store got tainted meat during a recall.  Under the new rule, which is expected to be published next week and take effect 30 days later, retailers' names will be posted on the Agriculture Department Web site during so-called "Class I" meat and poultry recalls - those deemed to pose a definite public health risk.

So, Secretaries, I have one more idea - why not make "Non-compliance Reports" ("NRs") public and online.  Let the public see how well, or badly, some of your inspected facilities are operating.  I think if you had on line Establishment 19336's (a.k.a Nebraska Beef, Ltd) NRs from 2002, perhaps the illnesses and deaths from 2006 and 2008 would not have happened.

OK, one more "beef."  A few days ago USDA spokesman Amanda Eamich said that Nebraska Beef's plan "satisfies concerns raised after the meat was linked to an E. coli outbreak."  However, "she would not discuss the details of the changes Nebraska Beef had proposed."  Boy, given that a few days before that she said that "Nebraska Beef responded slowly to indications that its products might be tainted with E. coli," and that "Nebraska Beef was notified in the first half of June that two samples of its trim to be used in ground beef had tested positive for E. coli," and that "the establishment didn't take appropriate actions when positives were found," you would think that this whole process would be a little more transparent?

Perhaps we need another press conference? Or, two?

Perhaps the presidential candidates need to read:  "Tainted Food: How To Combat Food Poisoning in the United States? Mr. McCain, Mr. Obama, are You Paying Attention?"

According to Georgia Public Radio, several Moultrie residents have been infected with a harmful strain E. coli O157:H7, according to local health officials.‚Ä®‚Ä® The common link in all the cases is the consumption of meat supplied by Nebraska Beef limited.  The company has recalled five million pounds of beef because of suspected E. coli contamination.  Attorney Bill Marler is suing the company, and he says he expects even more recalls to be issued across the country as a result of the outbreak in Georgia.‚Ä®‚Ä®

"Retail outlets, whether it be Kroger or whomever, has an obligation to pull that product."

WALB TV:

"The ground beef that was tested from the restaurant has been confirmed to be positive for the e-coli," said Dr. Jacqueline Grant, S.W. Georgia Public Health Director.

The Health Department says the Barbecue Pit Restaurant makes its own hamburger meat. The contaminated beef in the sample has been traced to sirloin steak supplied by a middleman who is saying that it acquired beef products from Nebraska Beef.

E. coli reporter, Josh Funk, and I had a chance to talk a bit following my speech to ConAgra’s Food Safety Council about Nebraska Beef Ltd.’s slow response to indications that its products might have been tainted with E. coli.  According to the FSIS, “Nebraska Beef was notified in the first half of June that two samples of its trim to be used in ground beef had tested positive for E. coli.”  You must wonder when this company will get a clue.  Will it be more illnesses?  More recalls?  More lawsuits (we just filed another)?  Or, perhaps criminal sanctions?  The company's products have now been linked to E. coli illnesses affecting 49 people in Georgia, Michigan and Ohio.  The meat recall announced last week was expanded from 531,707 to 5.3 million pounds.

I also talked to the Omaha World Herald about why ConAgra asked me to come to Omaha to speak to its Food Safety Council and executives responsible for food safety.  As I said:

"Paying attention to food safety is ultimately good for the bottom line and good for your company morally," Marler said.

Too often, Marler said, companies either ignore or do not recognize warning signs of food borne illness.

Marler credited ConAgra Chief Executive Gary Rodkin and other company executives for inviting him to speak.

"It says a lot for the company," Marler said.

As I said to the Baltimore Sun about the confusion between tomatoes and Jalapenos:

"I've never seen a situation like this," William Marler, a Seattle lawyer who litigates food-borne illness claims, said in a recent interview.  A mistaken focus on tomatoes would be a "black eye" for investigators, he said, while acknowledging that produce investigations are difficult.

More than 1,000 people have gotten sick from salmonella initially linked to raw tomatoes.  The Centers for Disease Control and Prevention today also implicated some types of hot peppers.  Certain raw tomatoes -- red round, plum and Roma -- remain a chief suspect. The FDA says people should avoid those tomatoes unless they were harvested in areas cleared of suspicion.  But people at highest risk of severe illness from salmonella also should not eat raw jalapeno and serrano peppers.  The feds say two deaths are associated with the outbreak -- a Texas man in his 80s, and another Texas man who died of cancer, but for whom salmonella may have played a role.  At least 203 people have been hospitalized.

As I said to CNN:

Bill Marler, food safety attorney: "It's possible that the CDC got this one wrong. But had they continued to wait, and wait, and wait until the data was perfect, we then would be criticizing them for letting ill people stack up."

Since April, 1017 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 41 states, the District of Columbia, and Canada.  The number of ill persons identified in each state is as follows: Alabama (2 persons), Arkansas (14), Arizona (49), California (9), Colorado (13), Connecticut (4), Florida (2), Georgia (24), Idaho (4), Illinois (100), Indiana (14), Iowa (2), Kansas (17), Kentucky (1), Louisiana (1), Maine (1), Maryland (29), Massachusetts (25), Michigan (8), Minnesota (15), Missouri (12), New Hampshire (4), Nevada (11), New Jersey (9), New Mexico (98), New York (28), North Carolina (10), Ohio (8), Oklahoma (24), Oregon (10), Pennsylvania (11), Rhode Island (3), South Carolina (2), Tennessee (8), Texas (384), Utah (2), Virginia (29), Vermont (2), Washington (11), West Virginia (1), Wisconsin (11), and the District of Columbia (1). Four ill persons are reported from Canada; three appear to have been infected while traveling in the United States, and one illness remains under investigation.

According to WALB TV 10:

A Moultrie restaurant bought tainted beef from a Nebraska distributor, which also supplied beef linked to an E. coli outbreak in Michigan and Ohio. The Barbeque Pit Steak and Seafood Restaurant voluntarily closed last Thursday at the request of the health department. Health officials called in the USDA who met Tuesday morning with the restaurant's owners and Public Health officials. They say the meat contaminated at the Moultrie restaurant was not ground beef, but it was beef from Nebraska Beef with the same date on it as the meat recalled in Michigan and Ohio.

My guess is that there will be more illnesses.

Once again, hundreds of Americans have been sickened by outbreaks of foodborne illness.  This time it is nearly 1,000 (and counting) in 40 States put down by salmonella in fresh tomatoes (or is it the salsa?), and nearly 50 in Ohio and Michigan (possibly Georgia) stricken by the deadly E. coli O157:H7 bacteria, again in hamburger.  Tomatoes have been recalled nearly every year for the last 10, with hundreds ill.  Hamburger, well, since the spring of 2007, we have recalled over 30 million pounds after it was linked to ill people, mostly children in nearly every state.  Consumers (hint candidates - voters) have lost confidence in the businesses that feed them and a government that is supposed to protect them.

After a brief lull a few years ago, we’re seeing a sweeping increase in outbreaks of salmonella, E. coli and other foodborne contaminates.  There are many reasons for this ugly trend – businesses more focused on sales than safety, fragmented government agencies with conflicting missions, inadequate inspection of foods, poorly educated food handlers and lack of consumer awareness, to name a few.  The reality is that we now live in a global food supply, like it or not, and we need to come up with global solutions that leverage our scientific and technological capabilities to prevent human illness and death.

These outbreaks should be good news to a lawyer like me, since I specialize in representing people sickened by tainted food.  But it isn’t, because it means I’ll be seeing more four and five-year-old kids hooked up to kidney dialysis machines, their lives hanging by a thread because they ate a tainted burger topped by contaminated tomatoes.

In the last few months, I’ve asked some of the leading experts in the field – doctors, researchers, food safety consultants and governmental officials - to suggest what the next President - be it McCain or Obama - could do to combat this recurring epidemic. Here are the “top eleven” of what they (with a few edits and additions by me) suggest:

• Improve surveillance of bacterial and viral diseases.  First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.  Right now, for every person counted in an outbreak there are some 20 to 40 times those that are sick but never tested.  The more we test, the quicker we know we have an outbreak and the quicker it can be stopped.

• These same governmental departments, whether local, state or federal, need to learn to “play well together.”  Turf battles need to take a back seat to stopping an outbreak and tracking it to its source.  That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.

• Require real training and certification of food handlers at restaurants and grocery stores.  There also should be incentives for ill employees not to come to work when ill.  We should impose fines and penalties on employers who do not cooperate.

• Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.

• Increase food inspections.  While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act.  Points of export and entry are a logical place to step up monitoring.  We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.

• Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts.  Reform federal, state and local agencies to make them more proactive, and less reactive.  This too requires financial resources and accountability.  We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.

• There are too few legal consequences for sickening or killing customers by selling contaminated food.  We should impose stiff fines, and even prison sentences for violators, and even stiffer penalties for repeat violators.

• We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.  When I buy a book on line I can track it all the way to my mailbox.  However, we have yet to find the source of a tomato (or salsa) outbreak after months of sickening hundreds.

• Promote university research to develop better technologies to make food safe and for testing foods for contamination.  Provide tax breaks for companies that push food safety research and employee training.  Greatly expand irradiation of raw hamburger and other high-risk products.

• Improve consumer understanding of the risks of food-borne illness. Foster a popular campaign similar to Mothers Against Drunk Driving, which uses consumer power to promote a no-tolerance policy toward growers and companies that produce tainted food.
  

• Provide Presidential leadership on a topic that impacts every single one of us.

Perhaps this is a bit too much to ask the presidential candidates to chew on?  However, they should think about it at least politically, if not morally.  In America in 2008 it is criminal, that according to the CDC, ever year nearly a quarter of our population is sickened, 350,000 hospitalized and 5,000 die, because they ate food.  People who eat food and get sick also vote.  Mr. McCain, Mr. Obama, do the math.

Well, at least one person read what I wrote:  See, Seattle PI - "secret ingredients."

According to CNN, “starting Monday, health inspectors will halt the shipment of ingredients common to Mexican cuisine from Mexico to the United States” – this will include cilantro, jalapeno peppers, Serrano peppers, scallions and bulb onions. I assume that it may still include tomatoes?

As for illnesses, the CDC reports that 943 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 40 states, the District of Columbia, and Canada. Nearly 150 have been hospitalized. The number of ill persons identified in each state is as follows: Alabama (2 persons), Arkansas (10), Arizona (45), California (8), Colorado (12), Connecticut (4), Florida (2), Georgia (24), Idaho (4), Illinois (93), Indiana (14), Iowa (2), Kansas (17), Kentucky (1), Louisiana (1), Maine (1), Maryland (29), Massachusetts (22), Michigan (7), Minnesota (8), Missouri (12), New Hampshire (4), Nevada (11), New Jersey (9), New Mexico (98), New York (28), North Carolina (10), Ohio (7), Oklahoma (23), Oregon (10), Pennsylvania (8), Rhode Island (3), South Carolina (1), Tennessee (8), Texas (356), Utah (2), Virginia (29), Vermont (2), Washington (4), Wisconsin (10), and the District of Columbia (1). One ill person is reported from Ontario, Canada. 

According to the CDC, for every one person who is a stool-culture positive victim of salmonella in the United States, there a multiple of 38.5 who are also sick, but remain uncounted.  (See, 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).  That means that we are close to poisoning 38,000 people and we do not even know the vector. 

The fresh vegetable industry has been beating up on the CDC and FDA in recent days for picking tomatoes as the likely vector - some even ignoring the ill people and asking for government handouts to tomato growers.  So, why did the CDC and FDA pick tomatoes?  Well, according to the FDA,  during the past decade, the consumption of fresh and fresh-cut tomatoes has been linked to at least 12 different outbreaks of foodborne illness (most salmonella) in the United States. Those outbreaks include 1,840 confirmed cases of illness. The majority of these outbreaks have been traced to products from Florida and the eastern shore of Virginia; however, tomato-associated outbreaks also have been traced to tomatoes from California, Georgia, Ohio, and South Carolina.  Some examples:

In 1990, a reported 174 salmonella javiana illnesses were linked to raw tomatoes as part of a four-state outbreak. In 1993, 84 reported cases of salmonella montevideo were part of a three-state outbreak. In January 1999, salmonella baildon was recovered from 86 infected persons in eight states. In July 2002, an outbreak of salmonella javiana occurred associated with attendance at the 2002 U.S. Transplant Games held in Orlando, Florida during late June of that year. Ultimately, the outbreak investigation identified 141 ill persons in 32 states who attended the games. All were linked to consumption of raw tomatoes.

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. For more information on Salmonella visit www.about-salmonella.com and www.salmonellalitigation.com.

On the other hand I could not find a Jalapeno outbreak tied to salmonella at all and only two possibly linked to Hepatitis A and Norovirus.  Heck,  at Virginia Tech researchers found that "Hot pepper oil may prevent salmonella in poultry."  Cilantro too, well, in fact studies have shown that salsa kills salmonella?  Researchers thought they had identified a compound in cilantro, a key flavor component of salsa and a variety of other dishes, that kills harmful salmonella bacteria and shows promise as a safe, natural food additive that could help prevent foodborne illness, according to a joint study by U.S. and Mexican researchers. 

First it was Tomatoes, now it is Peppers? Jonathan Rockoff of the Baltimore Sun has continued on the trail of the likely ingredients of salsa that has sickened nearly 1,000 across the country over the last three months. However, like tomatoes:

So far, none of the jalapenos taken from restaurants and from the homes of those who became ill have tested positive for Salmonella Saintpaul. Echoing federal officials, who said this week that tomatoes remain the prime suspect, the health officials said that tomatoes cannot be ruled out as the cause of the outbreak. Investigators have been collecting samples of another possible suspect, cilantro, though the herb is less likely to be the source, said the officials, who spoke on condition of anonymity because the investigation is continuing.


One health official involved in the investigation said "loose ends" are keeping tomatoes under suspicion, but the official said they could be accounted for easily. The official said evidence is "piling up" that indicates that jalapenos are to blame. 

"There's certainly no shred of doubt in my mind," the official said. Another health official was more cautious, saying that the evidence is pointing to peppers but that there is not yet enough information to rule out tomatoes.

Hmm, now it is clear?

922 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 40 states and the District of Columbia.  Two new states, Iowa and Louisiana, report ill persons. The number of ill persons identified in each state is as follows: Alabama (2 persons), Arkansas (10), Arizona (45), California (8), Colorado (12), Connecticut (4), Florida (1), Georgia (22), Idaho (4), Illinois (91), Indiana (14), Iowa (2), Kansas (17), Kentucky (1), Louisiana (1), Maine (1), Maryland (29), Massachusetts (22), Michigan (7), Minnesota (2), Missouri (12), New Hampshire (4), Nevada (11), New Jersey (6), New Mexico (95), New York (26), North Carolina (10), Ohio (7), Oklahoma (23), Oregon (10), Pennsylvania (8), Rhode Island (3), South Carolina (1), Tennessee (7), Texas (356), Utah (2), Virginia (29), Vermont (2), Washington (4), Wisconsin (10), and the District of Columbia (1)

Well it is great to see that our exports are picking up given the tough business climate we are in.  However, I am not sure exporting ill people across the Canadian Border is really the way to pick up new business.

Canada finds first case linked to U.S. salmonella outbreak in returning traveller

Canadian authorities have found a case of Salmonella Saintpaul, the strain behind the massive salmonella outbreak in the United States.  The Public Health Agency of Canada says a person from Ontario was sickened by a strain of the bacteria with the same genetic fingerprint as the one responsible for the U.S. outbreak. The person, who became sick in early June, had just returned from travelling in the United States when the illness struck.  Agency epidemiologist Andrea Ellis says it seems clear the person became infected south of the border.  She says there's no indication that the contaminated food responsible for the U.S. outbreak has made its way to Canada.  The U.S. Centers for Disease Control says 922 cases have been confirmed in 40 states and the District of Columbia.  While earlier in the outbreak it was thought certain types of tomatoes were responsible, the investigation has been broadened to look at whether ingredients that go into fresh salsa could be the cause

Today, Kroger expanded its recall of some ground beef products to its stores in more than 20 states, saying the meat may be contaminated with E. coli.  Kroger's recall stems from meat obtained from Nebraska Beef Ltd. that has been linked to some 50 illnesses reported in Michigan and Ohio between May 31 and June 8.  Nebraska Beef has recalled from wholesalers and other processing companies nearly 532,000 pounds of meat produced on five dates between May 16 and June 24.  Interestingly, Nebraska Beef’s recall is for trim and intact cuts of meat, but not hamburger.  Does Nebraska Beef grind Hamburger?  If so, where and why no recall of it?  Perhaps that will be the recall of the day?

Kroger initiated a recall June 25 for Kroger stores in Michigan and in central and northern Ohio.  The expanded recall includes ground beef sold at Fred Meyer, QFC, Ralphs, Smith's, Baker's, King Soopers, City Markets, Hilander, Owen's, Pay Less and Scott's with overlapping sell-by dates from mid-May through mid-July.

I did speak to Laura Gunderson of the Portland Oregonian in story about the “Beef Recall Hits Oregon and Washington.” In our discussion about Nebraska Beef’s past litigation and its Press Statement of a few days ago she wrote:

In a statement issued with the recall, Nebraska Beef officials wrote, "Since inception in 1995, the company has processed over 10 billion pounds of product without a confirmed customer illness."

But a Seattle lawyer isn't swayed.

Bill Marler, whose firm specializes in food-poisoning cases, sued Kroger and Nebraska Beef this week on behalf of a consumer who he said tested positive for E. coli O157:H7 after eating ground beef sold at a Kroger store in Dublin, Ohio.

Marler also is suing Nebraska Beef over a 2006 E. coli outbreak after a church potluck in Minnesota that killed a 73-year-old woman and sickened 16 other people. In that case, Marler said, he found Nebraska Beef had detected trimmings, such as fat and bone, contaminated with E. coli. The trimmings were tossed, Marler said, but not the actual meat that had been distributed. The meat, Marler said, was later genetically matched to some of the sick churchgoers' stools.

The company, in turn, sued its distributors and the church, Salem Lutheran of Longville, Minn. The company's legal team had the church's pastor give a deposition last week, Marler said.

In the past, Nebraska Beef's representatives have pointed out that the church women's auxiliary may have introduced contamination as they molded meatballs for a monthly fundraiser.

Marler said it would be uncommon for a slaughterhouse to perform an unnecessary recall.
"If they didn't sicken people," he said, referring to Nebraska Beef's statement earlier this week, "why would they voluntarily withdraw the meat?"

Nebraska Beef successfully sued the USDA in January 2003 to block the federal agency from shutting down one of its plants after the agency said it found E. coli-contaminated meat at a company subsidiary. The agency argued that serious food-safety violations warranted closure of the plant, which it said had a documented history of unsanitary conditions and violations.

Nebraska Beef argued that a closure could cost it $2.7 million a day and 1,100 jobs and drive the company out of business.

A federal judge granted Nebraska Beef a restraining order and a few weeks later the company agreed to a settlement with the agency that included additional food-safety monitoring. Soon after, the USDA dinged the company with nearly 60 noncompliance reports.

In May 2007, Nebraska Beef sued the agency -- and nine of its employees -- to argue that the inspectors had unfairly targeted its plant. The case was later dismissed.

Read this carefully (and see expanded discussion at efoodalert:

Kroger Co. has expanded last week's voluntary recall of tainted ground beef products sold in stores in Michigan and Ohio, after the U.S. Department of Agriculture identified the supplier as Nebraska Beef Ltd.  Kroger said late Tuesday the recall now includes ground-beef products in Styrofoam tray packages wrapped in clear cellophane or bought from an in-store service counter.

Customers should check if they bought meat at Fred Meyer or QFC stores with "sell-by" dates between May 21 and July 5 or at Kroger stores between May 21 and July 3.  Kroger stores in Georgia, South Carolina, Alabama, and Knoxville, Tenn. are not involved.  Customers should check if they bought meat in Kroger's Mid-Atlantic division, which includes stores in North Carolina, Northeastern Tennessee, Virginia and West Virginia with "sell-by" dates between May 19 to June 6.

Other meat being recalled includes these stores and sell buy dates:

Fry's - May 21 to July 3

Ralphs - May 21 to July 3

Smith's - May 21 to July 3

Baker's - May 17-June 4

King Soopers - June 20-July 3

City Market - June 20-July 3

Customers who shop at Hilander, Owen's, Pay Less, and Scott's should follow the "sell-by" dates listed above for Kroger stores.  Kroger also recalled Private Selection Natural ground beef sold in 16-ounce packages with "sell-by" dates July 11 to July 21. The product was available at all Kroger stores as well as Dillons, Fred Meyer, Baker's, Smith's and Fry's.

OK, I have been a bit focused on the evil ways of Nebraska Beef Ltd., and E. coli O157:H7 over the last few days and have not posted much on the Tomato, hmmmm, “other vegetable” salmonella outbreak.  Well, it is good to know that the FDA and CDC are “testing numerous other types of fresh produce in the hunt for the source of the nation's record salmonella outbreak -- even as [they] insist tomatoes remain the leading suspect.”  See bottom right.

Well, as the FDA searches for the “killer vegetable," the CDC reports on the number of ill - Since April, 869 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 36 states and the District of Columbia.  The number of ill persons identified in each state is as follows:

Arkansas (10 persons), Arizona (41), California (10), Colorado (11), Connecticut (4), Florida (1), Georgia (20), Idaho (3), Illinois (91), Indiana (11), Kansas (14), Kentucky (1), Maine (1), Maryland (29), Massachusetts (21), Michigan (6), Minnesota (2), Missouri (12), New Hampshire (3), Nevada (11), New Jersey (6), New Mexico (90), New York (26), North Carolina (5), Ohio (7), Oklahoma (23), Oregon (10), Pennsylvania (8), Rhode Island (3), Tennessee (6), Texas (346), Utah (2), Virginia (22), Vermont (2), Washington (4), Wisconsin (6), and the District of Columbia (1).