Marler Blog - Providing commentary on food poisoning outbreaks & litigation

Kudos to The Hartford for doing the right thing for the victims of this Salmonella tragedy and sending me the insurance policies in question for the policy period 2008-2009.  Great bedtime reading.  Let the analysis begin and the Declaratory Judgment action fade away.

My mom will be proud - my blog on food safety, foodborne illness, and food policy was honored by PR News as best law blog in the Legal PR awards for 2009 - well OK, so I have the only legitimate one for a lawyer.  Anyway, for those that have not spent much time here, the blog contains breaking news, background, statistics, insights, guest voices, and peer-reviewed literature.  Sprinkled throughout are updates on former clients, current litigation, and my busy speaking and litigation schedule.

Recent Marlerblog mentions:

“Marler is the treasured source of reporters around the globe.” Andrew Schneider, Seattle Post-Intelligencer “Guru of the nation’s food safety investigators.”

“[Marler’s] very lively blog is a must-read for food safety wonks.” Kim O’Donnel, Washington Post

“Marler’s always educational, entertaining blog.” Patricia Guthrie, Seattle Health Examiner, Examiner.com

“A tireless blogger on all things food safety.” Associated Press

“Some of the best insight I've come across on the implications of the melamine crisis for Chinese justice is from the blog commentary of Bill Marler.” Law and More

“Marlerblog is the best internet source for food safety information.” Eddie Gehman Kohan, ObamaFoodorama.com

Lynne Terry of The Oregonian keeps following the Peanut Butter Trail. Here are excerpts from an article she just posted online:

Earlier this month, a Wilsonville boy put a face on the salmonella outbreak that has sickened scores nationwide. Three-year-old Jacob Hurley sat, wearing a big-knotted tie in an angry congressional subcommittee meeting, as his father, Peter Hurley, testified about his son's illness. Jacob was sick for 11 days with severe symptoms of salmonella infection after munching on his favorite comfort food -- peanut butter crackers.

"There's no question that eating that product is what caused him to become ill," said Bill Marler, a Seattle attorney who is representing the Hurleys. Lab tests confirmed that Jacob had the same salmonella strain as in the nationwide outbreak, prompting Oregon health authorities to visit the family and test some of their leftover packages of Austin Toasty Crackers with Peanut Butter. The crackers tested positive for salmonella typhimurium, said William Keene, senior epidemiologist with the state Public Health Division.

Marler said Kellogg bears responsibility, too. "Big-name brands like Kellogg have an enormous responsibility to monitor where they're getting their product and how that product is being manufactured," he said. "The public doesn't know whether it's made in China or a rat-infested or bird-infested plant in Blakely, Georgia. They're buying a Kellogg product."

Marler, an expert in food poisoning litigation, expects the Hurley case to go to a jury trial. Although Jacob has recovered, his parents are trying to make a point, he said. "For the Hurleys, like a lot of people who wind up litigating cases, it's less about what went on with their kid," Marler said. "It's more that they're upset with the system that would allow something like this to happen."

Click on the below picture to download PDF article.

Finally got wireless access at the GMA Food Claims and Litigation Conference.

Peanut Update - Texas health officials confirmed this morning that Salmonella Typhimurium has been found in peanut meal at a Texas plant owned by Peanut Corporation of America (PCA).  This plant's product had been linked to several illnesses in Colorado.  PCA's Georgia plant appears to be linked to the remaining ill.

Also this morning the CDC increased the numbers ill to 666 in now 45 States (5 more to go) with nine deaths.

The recall of product world-wide continues with over 2,500 products now on the FDA's list.

I heard a great talk today by my friend, Dave Theno, who is the now retired head of food safety at Jack in the Box.  He told the packed audience of meat producers that he still keeps a picture in his briefcase of one of the children who died in the 1993 E. coli O157:H7 outbreak.  He told us that whenever he made a food safety decision, he always had that child's picture in his mind.  For those in the food business who do not have a picture like Dave, click here and see these video clips of people who have struggled and survived, and some who have died, due to eating contaminated food.  I hope it helps you think like Dave.

Unfortunately, we have hundreds of these videos - so, more to be added.

Thank you NMA for inviting me here to Las Vegas. My guess is inviting a trial lawyer into your convention is a bit of a “gamble.”

Once again another food poisoning outbreak, perhaps slightly more outrageous than the ones before, now with over 650 sickened, 150 hospitalized and nine deaths, but eerily similar to those that have come before it. There is the familiar crush of the media for a picture or a quote of a victim, the vows by politicians to see this never happens again, and there is the anguish of burying a parent because they ate a quintessential American food – this time peanut butter.

I spent last week in Washington DC watching the latest version of the food safety play that seems to run on a constant loop – year to year – decade to decade. Some of the characters change – new victims – new food products – new poisons – new businesses causing the outbreak, but, the governmental response as to why this debacle is not its fault and the call by congressional leaders for new legislation are the same. If you re-run the tapes from the Jack-in-the-Box hearings from 1993 and peanut butter hearings last week they are remarkably the same – including the lack of action.

The time has long past to do something to stop the tape and to prevent the next outbreak. There are now several pieces of food safety legislation in the halls of the House and the Senate – some newer, most are dusted off every time that there is another outbreak that requires another press conference and media opportunity. Yet also in the halls of congress, are those that say the timing is not right to do things on food safety – the economy takes priority – or, some other reason that continued, cautious inaction is required and the various proposals remain shelved.

Frankly, the time has come to act and not continue simply to react. Consumers, Farmers, Suppliers, Manufacturers, Retailers, Regulators and Politicians need to work together to make our food supply safe, profitable and sustainable. When a quarter of our population is sickened yearly by contaminated food, when thousands die, we do not have the “safest food supply in the world.” When a whole industry looses hundreds of millions of dollars because government picks tomatoes when it really was peppers, we should, must, and can do better.

First, create a local, state and national public health system that catches outbreaks before they balloon into personal and business catastrophe. Surveillance of human bacterial disease is lacking. For many foodborne illnesses, for everyone culture positive case, 20 to 40 other cases are missed because of lack of surveillance. Most people who become ill with a bacterial or viral disease are either seldom seen or never cultured. The more people are tested, the greater the likelihood that a source, accidental or not, will be found sooner.

Second, 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 - is brought to heel.

Third, we cannot completely regulate ourselves out of this. Standards need to be set with the entire food chain at the table – from farmer, to manufacturer, to retailer and customer. Standards must also be based upon good science.

Fourth, promote research to develop better technologies to make food safe. Provide tax breaks for companies that push food safety interventions and employee training. 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.

Fifth, improve consumer understanding of the risks of food-borne illness. Industry cannot rely on working parents or the minimum wage worker to be the last “kill step” – not without an investment in real education.

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

None of this will stop bacterial and viral illnesses entirely. These invisible poisons have been around a long time. However, these six steps will enable us to help prevent it, help detect it far more quickly, to alert stores and families, and to keep our most vulnerable citizens - kids and seniors - out of harm's way.

Thank You.

Cysticercosis (SIS-tuh-sir-KO-sis) is a potentially serious disease of humans caused when people ingest the eggs of a tapeworm that lives in the intestines of other humans. This tapeworm, Taenia solium, is sometimes called the “pork tapeworm” because people get this type of tapeworm from eating undercooked pork. If a pig swallows the eggs of the tapeworm (passed in human feces), the pig doesn’t develop a tapeworm in its intestines. Instead, it develops microscopic capsules (called cysts) in its muscles that contain larval tapeworms. These cysts don’t make the pig sick, but people who eat raw or undercooked pork products containing these cysts develop the tapeworm and begin passing eggs in their stools as well.

Taeniasis (TEE-nahy-uh-sis) is the presence of one or more tapeworms in the intestines. People get this tapeworm by eating cysts in undercooked pork. Most people who have the tapeworm in their intestines won’t have any symptoms, but in some cases (especially if they have many tapeworms) they may develop nausea, diarrhea, abdominal pain, fever, or constipation. A tapeworm can live in an infected person’s intestines and continue to produce eggs for 25 years! The tapeworms begin shedding eggs five to twelve weeks after the tapeworm cyst was ingested in undercooked pork. People carrying living tapeworms in their intestines will shed tapeworm eggs every day in their stool; each tapeworm can produce 250,000 eggs per day. These eggs can infect other people or pigs as soon as they are shed in the stool. The eggs they shed can survive a few weeks or months in the environment. People carrying tapeworms can be diagnosed by having their stools examined in a laboratory to look for tapeworm eggs. Infected people can be treated with medication to kill the tapeworms. The stools should be examined frequently for several months to be sure all of the tapeworms have been killed.

It is clear given the revelations (and emails) form last weeks Congressional Hearings, that Mr. Parnell needs to be personally involved in this litigation.  The below amended complaint will be filed this afternoon:

642 persons infected with the outbreak strain of Salmonella Typhimurium have been reported from 44 states. The number of ill persons identified in each state is as follows: Alabama (2), Arizona (13), Arkansas (6), California (76), Colorado (15), Connecticut (10), Florida (1), Georgia (6), Hawaii (4), Idaho (16), Illinois (9), Indiana (9), Iowa (3), Kansas (2), Kentucky (3), Maine (5), Maryland (8), Massachusetts (48), Michigan (35), Minnesota (39), Missouri (14), Mississippi (7), Nebraska (1), New Hampshire (13), New Jersey (23), New York (28), Nevada (6), North Carolina (6), North Dakota (17), Ohio (94), Oklahoma (4), Oregon (12), Pennsylvania (19), Rhode Island (4), South Dakota (4), Tennessee (13), Texas (9), Utah (6), Vermont (4), Virginia (21), Washington (18), West Virginia (2), Wisconsin (5), and Wyoming (2). Additionally, one ill person was reported from Canada.

Among the persons with confirmed, reported dates available, illnesses began between September 1, 2008 and January 28, 2009. Patients range in age from <1 to 98 years. The median age of patients is 16 years which means that half of ill persons are younger than 16 years. 21% are age <5 years, 17% are >59 years. 48% of patients are female. Among persons with available information, 23% reported being hospitalized. Infection may have contributed to nine deaths: Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2).

In a good example of whatever you put on the internet or in emails may come back to haunt you (hey, note that this stuff was "organic certified"), I found this choice quote by Stewart Parnell, President (a.k.a. “I'll take the fifth Parnell") on this web archive site link:

At Peanut Corporation of America, we’ve become “The Processor of the World’s Finest Peanut Products” by delivering quality products and services at a fair price. Since its founding in 1976, Peanut Corporation has set the standard for peanut processing, providing customers worldwide with the highest quality product and reliable, on-time delivery. Whether you are considering us for the first time or you are already our customer, you'll find we continually strive to provide innovative, flexible processing services to meet our customers’ wide-ranging needs.

Safety and Quality do make a difference. We have a remarkable Food-Safety record, developed in an environment committed to continuous training and state-of-the-art Food Safety techniques. From the corporate office to the plant floors, our comprehensive Quality Control program assists us in preventing error, reducing waste, meeting requirements, measuring results and satisfying our customers.

We are in business to be the best. With your complete satisfaction as our ultimate goal, we utilize a stringent total-satisfaction philosophy, the cornerstone of a company focused on earning its place at the top of this industry.

We look forward to the opportunity to serve you.

If it was not so damned sad and criminal, it would be pathetic.

Last week, I was hired by the one case in Florida, so Florida is now on the map. So, why no cases in Alaska, Montana, Delaware, Louisiana, New Mexico or South Carolina?  They eat no peanut butter?  Someone should call the states' health departments.

The CDC numbers as of last Wednesday are 636 persons infected with the outbreak strain of Salmonella Typhimurium have been reported from 44 states. Patients range in age from <1 to 98 years. The median age of patients is 16 years, which means that half of ill persons are younger than 16 years. 21% are age <5 years, 17% are >59 years. 48% of patients are female. Among persons with available information, 23% reported being hospitalized. Infection may have contributed to nine deaths: Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2).

The number of ill persons identified in each state is as follows: Alabama (2), Arizona (13), Arkansas (6), California (76), Colorado (15), Connecticut (10), Florida (1), Georgia (6), Hawaii (4), Idaho (16), Illinois (9), Indiana (9), Iowa (3), Kansas (2), Kentucky (3), Maine (4), Maryland (8), Massachusetts (48), Michigan (35), Minnesota (39), Missouri (14), Mississippi (7), Nebraska (1), New Hampshire (13), New Jersey (23), New York (28), Nevada (6), North Carolina (6), North Dakota (17), Ohio (92), Oklahoma (4), Oregon (12), Pennsylvania (19), Rhode Island (4), South Dakota (4), Tennessee (13), Texas (7), Utah (6), Vermont (4), Virginia (21), Washington (18), West Virginia (2), Wisconsin (4), and Wyoming (2). Additionally, one ill person was reported from Canada.

Not really unexpected.  Hartford Insurance, however, has $12,000,000 per policy period - perhaps as much $40,000,000 total to cover claims of victims of this tragedy.  Also, manufacturers like Kellogg and King Nut are morally and legally responsible for the products they manufactured and sold.

I was asked the other day by the Editors of the NYT to join in a discussion at “Room For Debate,” about a single food safety agency and to post a 300-400 word position. After whacking away at it, I finally got it down to size. Here was my original submission:

Perhaps it was Nicholas Kristof who coined it – “Department of Food” in his recent Op-ed in the New York Times. And, certainly, and with some regularity, Senator Richard Durbin (D-IL) and Representative Rosa DeLauro (D-CT) have held press conferences touting the miraculous powers of a “Single Food Safety Agency” – combining USDA’s Food Safety Inspection Services (FSIS), which oversees beef, poultry, pork and lamb, with FDA’s Center for Food Safety and Applied Nutrition (CFSAN), which oversees everything else. I think they split jurisdiction if pepperoni is added to a cheese pizza?

At the mere thought of one department of something, or a single agency of anything, this compulsive trial lawyer begins to fidget with delight. However, as I slowly stop organizing my briefs (no, not those), I also think about the few times that governmental reorganization lead to consolidation of many agencies into one – like Homeland Security. The things I think about Homeland Security are “the heck-a-of a job Brownie” did after FEMA was absorbed and the frisking you see of three-year-olds and grandmas as your travel through airports.

But, I digress. I am not against the idea per se, but the issue of a governmental reorganization may or may not work. Perhaps it is more than “re-arranging the deck chairs on Titanic,” but I am simply not that sure. I worry that reorganization is potentially work without real progress. OK, perhaps it would be more efficient over time, and of course, you would get a new logo on stationary and an a new organization acronym.

Perhaps what might make a bit more sense is to put on hold that new stationary since we are now in the middle of yet another desperate food borne disease outbreak, that has sickened over 600, hospitalized 150 and killed nine. There’s no FDA or CFSAN head, there’s no CDC head, and there’s simply an acting FSIS head. I am presently reminded of the old adage, “if you are in a hole, stop digging.”

The time has come to pay attention and act and not continue simply to react. Consumers, Farmers, Suppliers, Manufacturers, Retailers, Regulators and Politicians need to work together to make our food supply safe, profitable and sustainable. When a quarter of our population is sickened yearly by contaminated food, when thousands die, we do not have the “safest food supply in the world.” We should, must and can do better. So, let’s do something and stop talking about governmental reorganization. Here are some ideas:

1. Improve consumer understanding of the risks of food-borne illness, and create a popular campaign similar to Mothers Against Drunk Driving, the Citizen Food Coalition, which would use consumer power to promote a no-tolerance policy toward growers and companies that produce tainted food.

2. Proper food safety monitoring begins in the local health professional community, too. By the time it’s caught the attention of Federal authorities, it’s too late—there’s already a large outbreak. The most important thing we can do to stop large outbreaks at the initial cases is to improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to routinely test for pathogens and report findings directly to local and state health departments and the CDC promptly, at the first sign of questionable symptoms—diarrhea, vomiting, fever. 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. Local, state and federal health agencies need to be encouraged to work 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 heel.

3. Provide tax breaks for companies that push food safety interventions and employee training and fund University research to develop better technologies to make food safe and for testing foods for contamination.

4. We need a new emphasis on revamping homeland security, as well as changing the way international terrorism is dealt with. It’s time to start thinking about this issue from a food safety standpoint; 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.

5. We need all food manufacturing plants to have mandatory HACCP, GMPs and SOPs with risk-based inspections, product testing for bacteria and viruses and complete transparency.

6. Lastly, we can’t overlook the legal issues in food safety. Right now 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.

So, let’s make some progress in stopping food poisoning and then later pick out the stationary.  Being in DC this week gave me a first hand look at how difficult it is to make progress on good ideas.  Over the next weeks, I will be reviewing all of the competing food safety plans floating through the halls of Congress and see if there is some common ground that can save lives, now.

I was honored to be in Washington DC to hear victims testify before the House subcommittee for Oversight and Investigations about the illness and death caused by tainted peanut butter. Lou Tousignant spoke about his father, who survived the Korean War with three purple hearts, only to be killed by peanut butter. Peter Hurley spoke about his 3-year-old son who became very sick with Salmonella, and the revelation that the “comfort food” their pediatrician said to allow the toddler while he was ill turned out to be the very thing that made him sick and get sicker: Austin brand peanut butter cracker sandwiches. While we were in the hearings, news came through that there may be another death attributed to the outbreak, which would bring the total to nine. The CDC released new data on illnesses, which now number 600 in 44 States. When I landed a few moments ago I learned that even more Peanut Corporation of America product is being recalled. This time from its Texas plant.  All products ever shipped from the Peanut Corp. of America plant in Plainview were recalled after the Texas Department of State Health Services said it found dead rodents, rodent excrement and bird feathers in a crawl space above a production area on Wednesday.

While meetings with Congresswoman Rosa deLauro and staffers of other Representatives and Senators concerned with food safety kept me very busy, I still had time to file two more peanut butter lawsuits, bringing the total to six with about thirty more to go.

I filed first on behalf of the Kirchners, a Minnesota family whose two small children fell ill in December, 2008 after eating snack foods made with Salmonella-tainted peanut butter. Even with a sharp pediatrician who ordered stool samples and identified Salmonella poisoning in their younger child, the link to peanut butter had not been established and their older child fell ill. The pediatrician suspected Salmonella, and suggested that the worried parents take their son to Children’s hospital, where the severity of his symptoms necessitated his admission. He remained hospitalized for three days, where he was also cultured with the outbreak strain of Salmonella Typhimurium. Both children are still struggling to regain their health.

Next I filed on behalf of two year-old Nevada child who ate peanut butter cracker sandwiches (also in December, 2008), and fell ill. Her parents sought emergency medical care for her nausea, profuse diarrhea, and abdominal pain, but were sent home with the child and told to keep her hydrated. When her symptoms worsened they returned to the hospital, and she was admitted. During her stay, a stool sample revealed that she had been infected with the outbreak strain of Salmonella. After her release, she required weeks to return to health.

And unfortunately, this is far from over.

In addition to the first filed case against Peanut Corporation of America and Kellogg (Meunier) we filed on the 20th of January, yesterday we filed the following in Georgia Federal Court.

Bryson Trone is a three year old resident of California. He consumed "Austin" brand peanut butter crackers on multiple occasions on or around December 25, 2008. He fell ill on December 26, 2008, suffering from fever, and profuse and painful bouts of diarrhea that turned bloody. His symptoms worsened, and he was subsequently hospitalized from January 1, 2009 through January 5, 2009. While hospitalized, he tested positive for Salmonella Typhimurium.

Mrs. Mildred Williams is an 84 year old resident of Massachusetts. On or about December 27, 2008, Ms. Williams purchased Kellogg’s “Austin” brand peanut butter crackers. She consumed the crackers on or about January 3 and 4, 2009. She fell ill on January 5, 2009. She suffered from nausea, diarrhea, abdominal cramps, and fatigue. Her symptoms persisted and worsened for more than a week. Finally, she sought medical attention and was admitted to the hospital from January 14 through January 22, 2009. While hospitalized, Ms. Williams tested positive for Salmonella Typhimurium. She is still ill, and still testing positive for Salmonella.

Paige Illiano, a thirteen-year-old girl from New York, fell ill on October 19 with severe gastrointestinal symptoms, including nausea, abdominal cramps, fever, and diarrhea after consuming "Austin" crackers contaminated by Salmonella Typhimurium.  She grew more and more ill over the next several days and was seen in her pediatrician’s office twice before being hospitalized on October 23. During her hospitalization, Page required frequent doses of morphine to combat the awful pain of her illness. She was discharged on October 26, 2008, but still suffers from occasional abdominal cramps and diarrhea to this day.

I was reading Michael Moss’s article in the New York Times a few moments ago, “Safety Net Missed Problems at Peanut Plant,” and I was struck by the quote below as I am about to leave for Washington DC in the morning:

David Marshall’s wife testified before Congress in 2007 after his mother, Mora Lou Marshall, of Shreveport, La., fell ill after eating Peter Pan peanut butter, which her dentist had recommended for her health.

Now the family is troubled to see the episode repeating itself, along with new vows to set things right. Another Congressional hearing on tainted peanut butter is scheduled for this week.

“The other day, there was some congresswoman saying we need to enact laws now to not let this happen again,” Mr. Marshall said. “And I was like, ‘You idiot. What have you all been doing?’ The law should have been enacted years ago, and this made us wonder, what does the F.D.A. even do?”

Here is a short video about Mora Lou Marshall

This will be the third time in three years that hearings will be held by the House Energy and Commerce Committee on the safety of our food supply. I supplied written testimony once and testified live once. Perhaps the third time is the charm. Well, at least we are having hearings. When the Republicans were in charge you would not have known there were any food safety problems at all.

John Sepulvado - National Public Radio - Weekend Edition Sunday, February 8, 2009 · As a result of the salmonella outbreak at a Georgia peanut plant, state officials are drafting a bill that would require food processors to report self tests. If Georgia passes the law, it could be among the strictest in the nation.

At least 20 people have been infected with E. coli O157:H7 in Colorado, and that number is expected to grow. The illnesses have been linked to the National Western Stock Show, held in Denver in January. 16 of the 20 sickened attended the show, and investigators are trying to determine the infection vehicle - food, water, or animals. Health Department officials are doing a lot of outreach to make sure that anyone who exhibits symptoms of E. coli infection - abdominal pain and cramps and diarrhea that turns bloody - seek medical attention immediately. E. coli infection can lead to severe illness in the very young, and can be passed to others in the household.

For more information E. coli and animal contact, see www.fair-safety.com.

"He’s not quite the assassin in Armani that many in our business wish him to be." 

Cattlenetworks – Chuck Jolley

I called Marler to ask a few pointed questions.  You’ll find just two themes in this interview. (1) What the hell is going on?  And (2) What will be the effects on the cattle industry.

Q. Bill, despite changes in federal rules and regs and your decade-and-a-half of court room work, food borne illnesses still seem to be piling up year-after-year. Let’s look at the Salmonella illnesses that began appearing half a year ago. It took five months to link it to King Nut peanut butter’s Blakely, GA plant. Why did it take so long and what did it cost in deaths and illnesses?

A. The PCA facility was in bad shape. They were shipping product for about 2 years that they knew was bad. So far, 120 people have been hospitalized and 8 have died. According to published reports, over 540 have been sickened in 43 states. We know our surveillance isn’t perfect, though. For every reported case, maybe 40 are missed so we could be looking at many more hospitalizations and deaths and over 20,000 illnesses.

It was an epidemic, but we figured it out only after it had just about run its course. After the tomato, spinach and ground beef problems, we need to put more effort into catching these things sooner rather than later and throwing a whole industry under the bus.

Q. Peanut butter spiked with Salmonella is the hottest news item these days but I’ve read reports of trace amounts of mercury found in High Fructose Corn Syrup and antibiotic-resistant staph bacteria in C.A.F.O. pigs. You’ve been quoted as saying we’re losing the fight against E. coli. With all of the federal, state and local organizations charged with overseeing the safety of our food, why are we unable to move the dial on this thing?

A. We have a real failure in our ability to survey bacterial and other food borne illnesses. The problem is each state has its own skill sets at finding and tracking these outbreaks. Some states are very good, some states are abysmal. We have too many organizations, too, that don’t communicate well with each other.

Q. With a new administration in place and new hands like Tom Vilsack on deck at the USDA, do you see a chance for improvements – a new emphasis on food safety - at the federal level?

A. I sent an open letter to the FSIS with some suggestions. It’s posted on my blog (http://www.marlerblog.com/). In it, I said:

‘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.’

‘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.’

‘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.’

‘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.’

‘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.’

‘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 interventions and employee training. Greatly expand irradiation of raw hamburger and other high-risk products.’
‘Improve consumer understanding of the risks of food-borne illness.’

Q. Let’s talk about existing laws and regulations. Peanut Corporation of America was not required to inform the FDA or state food-safety agencies that its products had tested positive for Salmonella. They merely went ‘lab shopping,’ had the product re-checked, and then placed it into commerce. A Georgia state dismissed the practice when he said, "It's just basically a loophole that has been there." How many loopholes are out there and why do they exist?

A. A few companies are less concerned about food safety – more concerned about their profit margins. They crank up line speeds and reduce labor. Everyone suffers. The problem is a lack of organization and turf battles among competing inspection systems at the federal, state and local levels.

Q. Let’s focus on the cattle and beef industries now. What do you see as our biggest challenges in 2009 and what can we do to meet those challenges.

A. The past 15 years will show you the next 15. Emerging pathogens, new pathogens, antibiotic resistant strains – think MRSA, Methicillin-resistant Staphylococcus aureus. It’s an infection caused by a strain of bacteria that is highly resistant to treatment. They’re coming at us hard. You’ll be challenged by pathogens that didn’t exist then as they do now.

You’ll need to do everything you can to minimize end-product contamination and that will include how you raise animals. Are CAFO’s the right way, for instance? You’re faced with feeding a growing world population but you’ll have to ask if the efficiencies of CAFO’s are worth it. How will a production change affect the price and the availability of food?

There is a lack of cooperative spirit among the regulators, companies and buyers and sellers. It has to be fixed. Everyone in the food chain, every facility, needs to cooperate on science-based pathogen testing. It should be mandatory and the results must be transparent. 

It’s clear that the vast majority of businesses are well-run, well-maintained and dedicated to putting out the high quality product that consumers have a right to expect. We really have to take a hard look at how plants are inspected, though. We’re using too much of the ‘poke and sniff’ techniques of the early 20th century to find pathogens that didn’t exist until a few years ago.

More from Mr. Jolley:

By Ann Bagel Storck on 2/6/2009

As buzz abounds around who will be the next under secretary of USDA's Food Safety and Inspection Service, Bill Marler's name frequently has been part of the conversation.

The Seattle-based attorney, managing partner at Marler Clark LLP, is best known for his food-borne illness cases, but he also speaks about food safety and litigation prevention to companies worldwide, including ConAgra Foods last summer.

In an interview with Meatingplace, Marler confirmed he applied for the position of FSIS under secretary, although he said he did not know when a decision would be made. Regardless of whether the job is his, however, Marler has plenty of strong opinions about how the meat and poultry industries can improve their approach to food safety.

If you are named FSIS under secretary, what would be on your agenda?

First of all, I'm not a huge fan of a single food safety agency. I think that fixing what can be fixed doesn't necessarily mean you need a new agency with a new name and new stationary.

With respect to the meat and poultry industry, my approach would be with a clear understanding that these are businesses that need to make a profit. There's absolutely nothing wrong with that. Being in a lot of slaughter facilities and a lot of processing plants, [I understand] the squeeze that processors are under, especially over the past few years when grain prices, gas prices and labor prices have been going up.

I'm not saying that they cut corners on safety, but more money needs to be poured into technology. The only way to do that effectively is by encouraging companies to spend more money on technologies that work and research to prevent bacterial contamination from happening. I think you have to look hard at some tax relief, tax breaks, tax incentives for businesses to invest in things that make sense to try to limit bacterial exposure to carcasses and to allow less product to be contaminated that winds up on grocery shelves.

[I also would look] at how inspections are done. I can't tell you how many pages of NRs I've looked at over the last 15 years, most of which really don't help very much in trying to determine whether or not a plant has contaminated product or not. I think you really have to look at whether or not the amount of money we're spending and how we're spending that money in inspection makes the most bang for the buck.

Has USDA made any moves in the right direction with changes to its E. coli testing policy?

Testing has its place. In order to validate a HACCP plan, a tool — and maybe the best tool — is product testing, at many stages in the process, including end-product testing.

It's not perfect, but I think a vigorous testing protocol that scientifically validates HACCP plans is what I would see as potentially a better solution than having a guy in a white coat watching carcasses fly by.

How much might interventions at other points during processing help prevent E. coli?

Those are, in some respects, research and scientific decisions and business decisions about what interventions work the best. And even those over time will have to take into account how these bugs adapt to change. Certainly steam processing, washing carcasses, washing hides — all of those things are in the mix.

Ultimately the public acceptance of irradiation is another thing I think has not been pushed as well as it could be.

Another component I would push pretty hard is consumer awareness. Even if you had a more rigorous testing protocol, even if you had interventions, there is no guarantee that the product that comes to the consumers is completely pathogen-free. The industry has to be honest with the public, and there has to be more education of the public about the risks of bacterial contamination.

I'll give you an example: I've got three kids. I can't get in the car without my kids going, "Put your seat belt on!" Yet my 16-year-old daughter has never had a class in school about how to cook anything.

You have made a career out of suing food companies on behalf of victims of foodborne illnesses. What have you observed as the most common misstep in the food supply chain that led to illnesses and death?

In every food-borne illness outbreak, there are always multiple breakdowns in the chain of distribution to the consumer. It's never one thing. There are always warning signs during the course of an outbreak or a bacterial contamination that companies could have and should have been aware of and corrected.

The real question is whether or not we can learn from each other. A lot of times when these outbreaks happen a company learns quite well how to fix their own problem. But there's [often not] outreach to the rest of the industry.

Are you feeling optimistic with a new administration in place that there will be food safety improvements in the coming years?

I'm very concerned that what we do is limp from outbreak to outbreak, but nothing ever really moves forward in a comprehensive way. I worry that it's going to be the same thing all over again. It just doesn't benefit us.

Nobody wants to poison little kids, We understand that it's not going to be perfect, but how do we get there using our brains, our scientific technologies and just good business sense? It's not easy, but things that are important in life aren't necessarily easy.

Thursday, February 05 2009, 10:00am - 12:00pm

Senate Committee on Agriculture, Nutrition & Forestry

Examination of Federal Food Safety Oversight in the Wake of Peanut Products Recall

Date: Thursday, February 5, 2009

Time: 10:00 a.m.

Place: 216 Hart Senate Office Building

Panel I

Dr. Stephen Sundlof
Director, U.S. Food and Drug Administration, Center for
Food Safety and Applied Nutrition
Rockville, MD

Rear Admiral Ali S. Khan
Assistant Surgeon General and Deputy Director of the National Center for Zoonotic, Vector-borne, and Enteric Diseases, Center for Disease Control
Atlanta, GA

Panel II

Ms. Gabrielle Meunier
Mother of affected child
South Burlington, VT

Ms. Caroline Smith DeWaal
Director
Program on Food Safety, Center for Science
in the Public Interest
Washington, DC

Mr. William Hubbard
Former Senior Associate Commissioner for
Policy, Planning and Legislation, Food and Drug Administration
Chapel Hill, NC

Had a good talk this evening with Newsday reporter, Sarah Crichton, who I believe might well have been “Miss Peanut Australia” not long ago. We talked about the latest unfortunate episode in the unfolding saga of what amounts to a food safety train wreck.

An outbreak that has sickened over 500 and killed eight now has the “Hartford Casualty Insurance Co…. in court filings … seek[ing] to limit its liability against a likely deluge of lawsuits” against its insured, Peanut Corporation of America. “[This as even] more companies yesterday added products to a recall list that now exceeds 1,100 items - making this outbreak the cause of one of the biggest recalls in U.S. history.” Well, back to my clients’ suit:

Gabrielle and Daryl Meunier, parents of Christopher Meunier, 7, of South Burlington, Vt., last week filed a lawsuit against PCA after the child became ill with a fever, vomiting and diarrhea on Nov. 25. During a five-day hospital stay, tests confirmed the 7-year-old had been infected with Salmonella Typhimurium, the strain later sourced to the Georgia plant. The boy is still recovering. The lawsuit filed in the U.S. District Court for the Middle District of Georgia alleges he became ill after eating Kellogg's Austin peanut butter crackers. Attorney Bill Marler said Kellogg was added as a defendant after it had become clear PCA's assets and limited insurance coverage of between $28 million to $31 million would be insufficient once all legal action had been launched. "Kellogg also shares liability with PCA because Kellogg is a manufacturer of crackers that have sickened people in this outbreak," said Marler, a Seattle attorney with 15 years of experience in food-borne illness cases.

Now, back to the Declaratory Judgment action - Boy, I sure hope the Hartford Insurance Company and its minions at the Law Firm of Kramon and Graham of Baltimore have a great document retention policy. I hope they are saving all of the documents and emails that support filing such an action against an insured facing Bankruptcy and a criminal investigation. What a great company the Hartford must be – “let’s figure out a way to try and deny over 500 sick people and the families of eight dead fair compensation.”

Since I know the Hartford is an avid reader of my blog - consider this notice.

When foodborne illness outbreaks occur, the source of the contamination is not always clear. Lawyers pursuing foodborne illness claims must carefully determine the applicable laws and identify the party that brought the product to market.

These days, ready-to-eat produce is more popular than ever. Unfortunately for the American populace, prepackaged produce often carries a risk of harboring foodborne pathogens. Due to large-scale production and distribution, prepackaged produce that is tainted has the potential to affect thousands of consumers. According to the Centers for Disease Control and Prevention (CDC), foodborne illness kills 5,000 people in the United States every year.1

With the advancing sophistication of scientific detection and investigation methods, one can hope that the root causes of food product defects will be easier to identify in the years to come. In the interim, the legal system remains the only avenue of recovery for consumers injured by foodborne diseases.
The United States has seen several foodborne illness outbreaks in recent years, including a 2008 salmonella outbreak linked to raw tomatoes and peppers that sickened 1,442 people in 43 states,2 a 2006 E. coli outbreak that was later linked to Dole brand baby spinach and resulted in 204 confirmed E. coli cases,3 and a 2002 E. coli outbreak linked to ConAgra brand ground beef, in which nearly 19 million pounds of beef were recalled.4 Perhaps the most well-known foodborne illness outbreak in the United States was a 1993 E. coli outbreak associated with the Jack in the Box restaurant chain that left more than 700 people ill and four children dead.5

Every foodborne illness outbreak presents unique circumstances. The 2006 Dole outbreak was notable, however, for the FDA’s success in tracing the source of the contamination to a particular growing area and finding the outbreak strain present there. The Dole outbreak highlights some of the essential steps to conducting food products liability litigation, including determining the applicable body of law, the entities subject to strict liability, the indemnity and insurance issues involved, the role third-party defendants might play, and the extent to which the defendant knew about the risk of contamination.

Another press release from Peanut Corporation of America:

There has been a great deal of confusing and misleading information in the media. We want the public to know that there were regular visits and inspections of the Blakely facility by federal and state regulators in 2008. Independent audit and food safety firms also conducted customary unannounced inspections of the Blakely facility in 2008. One gave the plant an overall "superior" rating, and the other rated the plant as "Meet or Exceeds audit expectations (Acceptable-Excellent)" ratings. Unfortunately, due to the nature of the ongoing investigations, we will not be able to comment further about the facts related to this matter at this time.

I guess it begs the questions - Where are the audits?  Who ordered them?  What do they say?  What did Kellogg and King Nut know and when did they know it?

China has banned food imports from eleven United States-based companies whose products have been tainted with peanut butter or paste that contain salmonella bacteria, Wednesday's China Daily reported.

The blacklisted eleven food manufacturers include the Peanut Corporation of America (PCA), considered the source of the contamination, and also the breakfast cereal maker Kellogg, according to the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ).

Embarrassed?  Do you wonder why the Chinese might feel uncomfortable?  Read Dahleen Glanton’s - Peanut facility: 'Nasty'

David James recalled opening a tote of peanuts at the processing plant here and seeing baby mice in it. "It was filthy and nasty all around the place," said James, who used to work in shipping at the plant.
Terry Jones, a janitor, remembered the peanut oil left to soak into the floor and the unrepaired roof that constantly leaked rain.

And James Griffin, a cook at the plant, recounted how his observations led to this simple rule. "I never ate the peanut butter, and I wouldn't allow my kids to eat it."

According to the workers, not a day went by that they didn't see roaches or rats scurrying about. And after a heavy rain, workers said, they had to step over puddles of water inside the building.

"It was pretty filthy around there," said Jones, 50, who said he worked in the sanitation department for eight months before he was laid off. "Whenever it rained back in the (peanut) butter part, it was like it was raining inside. It was coming in through the roof and the vents, but that didn't stop them from making the paste," Jones said.

Jones said he earned $6.55 an hour but he was happy to have the job, which included mopping up water and setting rat traps that sometimes caught three or four rodents a day.

The former workers interviewed said they saw many of these problems and more. Griffin, 27, who was responsible for operating the roasting machines, said he made sure he cleaned them every two weeks, and he said the plant was not as dirty as it has been portrayed by some. It was not always as clean in the area where peanut butter and paste were produced, he said.

Teresa Spencer, 30, who said she worked at the plant for two years before she was laid off in 2007, complained that employees on the peanut line - not trained as professional cleaners - were often required to clean the plant and did it inefficiently.

"They needed to hire a cleanup crew because you can't do your job and clean up too," said Spencer, who worked as a quality sorter, picking rocks, sticks and bad peanuts from the conveyor line.

Another former employee, James, 36, said he worked in the shipping area for eight months before leaving last year. During that time, James said he "saw them put new stickers on buckets of peanut paste that were out of date. There were roaches, rats and everything out there.

"Some of the bags of nuts had holes in them, and you could tell rats had eaten through them. And they would put tape on them or sew them up and send them out," James said. "Sometimes there would be mold on them, and they told us to pick out the good nuts and put them in another bag."
He said the employees often talked among themselves about the conditions, but he said most workers did not complain to management because they wanted to keep their jobs.

"I'm not surprised this happened," James said. "I just hate that people died."

This full interview with Mr. Jolly should be up on www.cattlenetwork.com shortly.

Did you know that the government needed permission from the Peanut Corporation of America before they could announce a huge recall of its products? Even after the feds began looking into felony charges against PCA management? Legally, the wording of the recall statement had to be approved by the company before the Food and Drug Administration could publish it.

A few days ago, White House press secretary Robert Gibbs said president Obama will soon announce a new F.D.A. commissioner. Gibbs said the new commissioner would conduct a review of FDA procedures and put in place a “stricter regulatory structure.”

The New York Times suggested the review is “sure to examine whether the requirement for the peanut company’s approval caused delays in warnings about its products once public health officials became aware of significant problems at its plant in Blakely, Ga.”

Ya’ think?

Michael R. Taylor, a former top official at the food agency, said “F.D.A. negotiates communications about recalls with companies and that sometimes leads to delays. Changing that dynamic when people are getting seriously ill and dying is something that ought to happen.”

Bill Marler, the Seattle food safety lawyer who is the subject of this interview, said the agency had neither the authority nor the courage it needed to keep the food supply safe.

Judy Leon, an F.D.A. spokeswoman, following a time-honored Washington public relations technique known as ‘duck-and-cover,’ refused to comment.

Review the food recalls of the past two years and you’ll quickly understand why that hoary old saw “We have the safest food supply in the world” is quickly becoming a choke point among American consumers. No matter how often those of us in the food business try to reassure ourselves with that phrase, the public is not buying it anymore. At best, the phrase rings as hollow as a politician’s promise.

I wanted to find out more about the fed’s shortcomings when it comes to assuring the safety of our food supply and what the never-ending drum beat of bad news might mean to the future of the cattle business. The one man who has consistently been at the center of every sizable recall since the Jack-in-the-Box case over 15 years ago is Bill Marler.

Several months ago, Marler, often called the “litigious scourge of the food industry,” told us we're losing the fight against E. coli. He could have just as easily added most of the other food pathogens, too. New and more virulent bacterial and viral strains joined by an overwhelmed and confused inspection system have led to some incredibly embarrassing headlines.

I called Marler to ask a few pointed questions. You’ll find just two themes in this interview. (1) What the hell is going on? And (2) What will be the effects on the cattle industry.

To fully understand Marler’s outrage on the current peanut recall, read his response to an FDA Globalization Act bill just introduced by John Dingell (D-MI):

“With the onslaught of reports of contaminated spinach, tomatoes, beef, pet food, and now peanut butter, it is clear increased funding and authority is needed at the FDA like Congressman Dingell’s legislation provides,” said Bill Marler, a food safety attorney and member of the American Association for Justice’s Foodborne Illness Litigation Group.

“However, the revelation the peanut manufacturer responsible for the salmonella outbreak knowingly endangered consumers by selling product they knew was harmful shows why FDA enforcement is not enough,” added Marler. “The increased inspections and civil justice penalties provided by this legislation go hand-in-hand with the right to hold wrongdoers accountable for the food they sell and profit from,” added Marler. “We are glad Congressman Dingell included language to protect the right of consumers to seek justice on these issues in the court system.”-AAJ

Full Interview Below

Brett Blackledge (aka, "Mr. Peanut") of “All Peanuts” News broke another story in the never-ending saga of Peanut Corporation of America (PCA). This time the story is that PCA’s Plainview, Texas facility that “blanches, dry roasts, oil-roasts and chops peanuts, then ships them to food companies across the country,” was operating without a license. The FDA learned about this after PCA’s Blakely, Georgia plant was implicated in a nationwide Salmonella outbreak that has left over 500 ill and eight dead. Also, according to “All Peanuts,” the PCA Plainville, Texas plant “never was inspected until after the company fell under investigation by the U.S. Food and Drug Administration, according to Texas health records obtained by AP…. [And raised questions] – including how it could have operated unlicensed for nearly four years [and] about the adequacy of government efforts to keep the nation’s food supply safe.”

PCA’s website has been taken down except for a few press releases and an address where it can be sued:  Registered agent for service of process: Ct Corporation System ‚Ä®1201 Peachtree St Ne # 1240, Atlanta, GA 30361.

With Bankruptcy looming, Congressional hearings to attend and criminal defense lawyers to retain, being sued by Salmonella victims is quickly becoming the least of PCA's problems.

I’ve been waiting a long time to make this post – more than two years. Today we settled a lawsuit against Nebraska Beef Inc. on behalf of two Longville, Minnesota families, those of Ellie Wheeler and Carolyn Hawkinson. We have been litigating for a long, long, time, and today a settlement was reached (for an undisclosed sum).

The story is a grim one. The members of the Salem Lutheran Church purchased beef for a church dinner - beef sourced, as we alleged, from Nebraska Beef Inc., and contaminated with E. coli. More than a dozen fell ill, including Ellie Wheeler, from the resulting E. coli infections, and Carolyn Hawkinson lost her life. When the tainted meat was traced to Nebraska Beef and they were sued, Nebraska Beef responded by suing the Church for—in effect—not cooking the deadly toxin out of the meat.

Today the families can finally begin to put their lives back together – lives ripped apart by the loss and injury of loved ones and by the massive medical bills that come with serious illness. Unbelievably, there have been other outbreaks traced to Nebraska Beef since the Longville outbreak; more have experienced the loss of health and financial security.

All the victims and families would rather time could be rolled back and the lives – and livelihood – of their family members could be restored. Nothing would make me happier than a safe food supply where no-one is sickened by what they eat. In the mean time, compensation is the best we can give those families, while we work to prevent it happening again.

News Coverage:

Minn. E. coli lawsuit against church settled

Attorney Bill Marler, who represented the Hawkinson and Wheeler families, said Monday the terms of the settlement are confidential.

The settlement resolves the claims against Nebraska Beef Ltd., Interstate Meat Services Inc. and Tabaka's Super Valu. All those companies were involved in producing, distributing and selling the beef involved.

Attorney Gary Gordon, who represented Omaha-based Nebraska Beef, confirmed the case had been settled but wouldn't comment on the details.

Nebraska Beef's counter lawsuit against the church was an oddity. Marler said he's never heard of a food manufacturer suing a private entity like a church, although he has seen cases where the manufacturer sued a restaurant.

Filing the claim against the church was a boneheaded legal strategy, Marler said when it was filed in October 2007.