Marler Blog - Providing commentary on food poisoning outbreaks & litigation

I was about to board a plane to London for a well-deserved break, when I received a call from a Colorado reporter about yet another raw milk outbreak. This one (I think it is the 10th or 11th raw milk outbreak this year) is a Longmont, Colorado goat dairy that has been ordered to stop distributing raw milk products after 16 people became ill after drinking milk.

Two children who drank goat milk from the Billy Goat Dairy required hospitalization, Boulder County Public Health reported Wednesday. Of the people who reported becoming ill from consuming the milk products, lab tests confirmed the presence of Campylobacter and E. coli O157:H7, the health department said.

The Billy Goat Dairy operates a goat share program in which individuals buy a share of a goat and in return receive raw, unpasteurized milk. Health officials are contacting every household who participates in the goat share operation to determine if they became sick and to collect samples.

Two day cares in Ellensburg, Washington have been closed after one confirmed E. coli O157:H7 illness and two suspected ones were reported to county officials.

The Yakima Herald-Republic reports that the Kittitas County Public Health Department temporarily shut down Creative Kids Learning Center and Little Tot Town after the cases were reported this past week.  The confirmed case involves a 5-year-old who does not attend either child care facility. The suspected cases are two siblings who attend the two closed facilities.

County investigators also found numerous other children and staff members with symptoms.

Clearly there is an index case - the first child or adult sickened.  The real question that the investigators will now be focusing on is how this first child became infected and how that child likely passed the E. coli to the other children and staff members?

I received a few emails from readers who did not get their daily quota of Marler Blog wondering what happened.  Well, I went fishing in the Florida Keys.

And, actually caught something (catch and release) - 125 pound Tarpon - which took me over two and a half hours to bring along side the boat.

According to the CDC, a total of 37 individuals infected with a matching strain of Salmonella Chester have been reported from 18 states since April 11, 2010. The number of ill people identified in each state with this strain is as follows: AK (1), CA (5), CO (2), GA (7), IL (1), KY (1), MA (2), MN (2), MO (1), NC (1), OK (1), OR (2), SC (2), TN (1), TX (1), UT (2), VA (4), and WA (1). Among those for whom information is available about when symptoms started, illnesses began between April 5, 2010 and June 3, 2010. Case-patients range in age from <1 to 88 years old, and the median age is 36 years. Fifty-five percent of patients are female. Among the 19 patients with available hospitalization information, 7 (37%) were hospitalized.

As Teresa Paulsen, a spokeswoman for ConAgra, said a few days ago:

Some of the ingredients, in particular the protein such as the chicken, are precooked before packaging. She said the package has explicit instructions on how to cook the entree in a microwave or oven.  "If it's cooked according to package instructions, any pathogen would be killed," she said.

Perhaps a warning on the box like this is in order?

Think about it.  Marie makes hundreds of thousands of these products and only a few people get ill.  So, either these 37 people just happen to not cook the product properly on this one occasion, or, what is far more likely, they were cooking it the same way they do every time, but this time the product had Salmonella in it.  Right, if ConAgra, a multi-billion dollar corporation, cannot get Salmonella out of its products, it thinks it is the consumer's job?  Give me a break.

From the Illinois Department of Health:

Confirmed cases of Salmonella serotype Hvittingfoss – 97 (case total unchanged from June 21)

Age range of confirmed cases: 2 to 79

Cases have reported eating at Subway restaurants located in 28 counties -- Bureau, Cass, Champaign, Christian, Coles, Dekalb, DeWitt, Ford, Fulton, Henry, Knox, LaSalle, Livingston, Macon, Marshall, McLean, Moultrie, Ogle, Peoria, Rock Island, Sangamon, Schuyler, Shelby, Tazewell, Vermilion, Warren, Will and Winnebago.

Investigation is ongoing. Numbers will be updated June 25, if additional cases are identified.

Imagine that the phone call comes or an email pops into your inbox--"Sir, we have been contacted by (you pick: CDC, FDA, USDA, or a state or local health department), and they say your product (lettuce, raw milk, or a frozen dinner) has been linked to illnesses. What do we do?"

So, what do you do?

After being involved in every major (and a few minor) food poisoning outbreaks since the Jack in the Box outbreak of 1993, I have seen it all. I have seen good CEOs act badly and make their and their company's problems worse and I have seen bad CEOs handle the outbreak with such aplomb that they become associated with both food safety and good PR. So, what do you do?

Of course, it is always best to avoid the outbreak to begin with. When I have spoken to CEOs or their Boards--generally, pre-outbreak and pre-lawsuit--I always pitch them on "why it is a bad idea to poison your customers." Putting safe food as the primary goal--yes, alas, even before profits--will (absent an error) give you a very, very good chance of never seeing me on the other side of a courtroom.

But, what if despite your best efforts, or what if you simply did not care, and an outbreak happens, what do you do?

First, have a pre-existing relationship with the folks that regulate you. If someone holds your business in the palm of his or her hand, you should at least be on a first name basis. No, I am not suggesting that you can influence your way out of the outbreak, but knowing who is telling you that your company has a problem allows you the ability to get and understand the facts. Do regulators and their investigators make mistakes? Perhaps, but not very often and not often enough to waste time arguing that your company did not poison customers.

Second, stop production of the implicated product and initiate a recall of all products at risk immediately. This procedure should have been practiced, and practiced, and practiced before. All possibly implicated suppliers should be alerted and all retailers should be offered assistance. Consumers need to be engaged too.  The goal now is to get poisoned product out of the marketplace and certainly out of the homes of consumers.

Third, launch your own investigation with two approaches, and at the same time. Are the regulators correct? And, what went wrong? Tell everyone to save all documents (you have to anyway). The goal here is to get things right. If it really is not your product, what has happened is bad, but survivable. If it really was your product, then learning what happened helps make sure it is likely to never happen again. More than anything, be transparent. Tell everyone what you find--good or bad.

Fourth, assuming that the outbreak is in fact your fault, publicly admit it. If it is not your fault, then fight it. However, pretending that you are innocent when you are actually at fault will get you nowhere. Asking for forgiveness is not a bad thing when you have something to be forgiven for. Saying you are sorry is not wrong when you are in fact wrong.

Fifth, do not blame your customers.  If you food has a pathogen it is not your customers responsibility to handle it like it will likely kill them or a member of their family.  Hoping that the consumer will fix your mistake takes your eye off of avoiding the mistake in the first place.

Sixth, reach out to your customers and consumers who have been harmed. Offering to pay legitimate losses will save money and your company's reputation in the long run.

Seventh, teach all what you have learned. Do not hide what you have learned. Make your knowledge freely available so we all limit the risk that something similar will happen again.

Yes, you can do all of the above and still get sued. And, I might be the one to sue you. Yet, companies who have followed the above find their passage through an outbreak, recall, and litigation temporary. The companies that struggle for unfounded reasons will seldom exist in the long run, or they will simply pay me more money.

South Gate Meat Co., a South Gate, Calif., establishment, is recalling approximately 35,000 pounds of ground beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced today.

The products subject to recall include:

20-, 30- and 40-pound bulk packages of "SOUTH GATE MEAT CO. GROUND BEEF."
30-, 40-, and 50-pound bulk packages of "SOUTH GATE MEAT CO. COARSE GROUND BEEF."
10- and 20-pound packages of "SOUTH GATE MEAT CO. GROUND BEEF PATTIES."

Each package bears establishment number "EST. 6217" inside the USDA mark of inspection. These ground beef products were produced between the dates of June 7, 2010, through June 21, 2010, and were shipped to restaurants in the Los Angeles and Orange County, Calif. area.

Interesting question - did FSIS test for non-O157:H7 Shiga-toxin producing E. coli?

A confidential settlement was reach yesterday in mediation between Nebraska Beef, Ltd., an Omaha-area beef processor, and a young child severely sickened with hemolytic uremic syndrome by E. coli O157:H7.

On June 30, 2008 recalled approximately 531,707 pounds of ground beef products because the meat was potentially contaminated by E. coli O157:H7. On June 24, 2008, the CDC announced an outbreak of E. coli O157:H7 illnesses among 24 residents of Michigan and Ohio. The next day, the CDC announced that the number of outbreak linked cases had grown to 32, and that ground beef sold at Kroger stores, the Cincinnati based grocery chain, was the likely outbreak vehicle. That afternoon, Kroger recalled all varieties and weights of ground beef products bearing a Kroger label sold between May 21 and June 8 at Michigan and Central and Northwestern Ohio Kroger retail establishments. By June 26, the outbreak had claimed 33 victims; and by June 30, the CDC counted 35 confirmed cases linked to ground beef sold by Kroger, with 19 people hospitalized and 1 known case of hemolytic uremic syndrome. On July 1, the CDC announced that 38 people had now been infected in Ohio and Michigan; on July 3, the number rose to 41. That day, Nebraska Beef expanded its recall “to include all beef manufacturing trimmings and other products intended for use in raw ground beef produced between May 16 and June 26.” The massive recall now totaled an estimated 5.3 million pounds of beef. In an FSIS press release the same day, it was reported:

FSIS has concluded that the production practices employed by Nebraska Beef, Ltd. are insufficient to effectively control E. coli O157:H7 in their beef products that are intended for grinding. The products subject to recall may have been produced under insanitary conditions.

Meanwhile, further epidemiological investigation revealed that the outbreak had spread beyond the states of Michigan and Ohio. On July 15, the CDC announced that New York, Indiana, and Kentucky had reported outbreak cases as well—i.e. individuals with a stool sample that was positive for a strain of E. coli O157:H7 that was indistinguishable from the patterns detected in recalled beef products and in other already-recognized outbreak cases. The next day, the CDC reported that the State of Georgia had a case too, bringing the total to 45 victims nationally. But Nebraska Beef’s contaminated beef products had spread even further than that into the stream of commerce, and unfortunately into the homes of consumers. On August 8, 2008, Nebraska Beef announced yet another massive recall. This time, the troubled company recalled approximately 1.2 million pounds of primal cuts, subprimal cuts and boxed beef due to potential E. coli O157:H7 contamination.

The total amount of beef products recalled by Nebraska Beef from June to August 2008 was 6,660,000 pounds. The contaminated beef subject to Nebraska Beef’s various recalls ultimately caused at least 80 illnesses in 16 states and Canada.

Confirmed cases of Salmonella serotype Hvittingfoss – 97.

Age range of confirmed cases: 2 to 79.

Cases have reported eating at Subway restaurants located in 28 counties -- Bureau, Cass, Champaign, Christian, Coles, Dekalb, DeWitt, Ford, Fulton, Henry, Knox, LaSalle, Livingston, Macon, Marshall, McLean, Moultrie, Ogle, Peoria, Rock Island, Sangamon, Schuyler, Shelby, Tazewell, Vermilion, Warren, Will and Winnebago.

Investigation is ongoing. Numbers will be updated June 22, if additional cases are identified.

To date, according to the CDC, a total of 30 individuals infected with a matching strain of Salmonella Chester have been reported from 15 states. The number of ill people identified in each state with the outbreak strain of Salmonella Chester are as follows: CA (4), CO (2), GA (6), IL (1), KY (1), MA (2), MN (2), MO (1), NC (1), OK (1), OR (2), SC (2), TN (1), UT (1), and VA (3). 

This suit involves one of the Oregon cases who was hospitalized for four days (click on image to download) and will be filed in Federal Court in the morning:

I was reading Carl Hulse’s article “Legislative Hurdles in an Era of Conflict” in the New York Times this morning and had one of those moments like when I first learned that Santa Claus was in fact not real. Yes, perhaps I should have figured it out before I entered 7th grade, but I was a late bloomer. However, now at age 53 you would think I would have figured out that politics is a nasty and stupid business long before today. Here are a few lines that woke me from my bliss-filled ignorance of “how sausage is made:”

… the final vote of 247 to 170 broke almost strictly along party lines, with only five Republicans voting for the measure even though a senior Republican responsible for tax issues acknowledged that there were positive aspects to the bill. … Representative Sander M. Levin said: … “You say you agree with these provisions, but then you’re going to vote no,” … “You just don’t apparently want to be caught being bipartisan. It’s going to blur the political message.”…

The phenomenon has shown itself in the Senate as well in the current impasse over a package of tax breaks and safety-net spending. Extending unemployment benefits in times of economic duress used to be a popular vote, but not one Republican was willing to join Democrats on Thursday to break a filibuster holding up added jobless pay. …

Representative Michael N. Castle of Delaware, … said the gulf between the parties had grown so wide that most Republicans simply refused to vote for any Democratic legislation. …

“It is just the politics of the time,” said Mr. Castle, who is running for the Senate. “We are just into a mode where there is a lot Republican resistance to voting for anything the Democrats are for or the White House is for. I think part of it is where the polling is and how things seem to be going from a political point of view. It is an election year.”… If Republicans were to vote for Democratic legislation, it would represent a tacit acknowledgment that some Democratic ideas merit support — not the message Republicans want to send right now. They are working hard to portray Democrats as inept and themselves as a worthy alternative. …

So, is it because the Republicans have positioned themselves as “the party of no” that a bill like S. 510, the Food Safety Modernization Act has not seen a floor vote after passing out of the H.E.L.P. committee by a unanimous vote several months ago? Could a bill that passed without a no vote now be the victim of “party politics?” Is it possible that despite H.B. 2794 Food Safety Enhancement Act bi-partisan passage in the House almost a year ago, that its Senate version will not receive a vote?

Would Republicans, if given the chance to vote on S. 510 (remember, the Democrats hold a 59 to 41 vote margin and hold the reins of the legislative agenda) actually vote against it? Would they really say no (or, “hell no”) to the first major piece of food safety legislation in generations and ignore that they sicken 76,000,000 citizen/voters yearly food they eat? Really? Would Republican’s vote no to solidify their no narrative? I am not so sure.

First, a confession. I am a life-long Democrat. I have never voted for a Republican and I have given and raised millions for Democratic candidates (a large number of the phone calls I receive are candidate solicitations). However, I am not so sure that S. 510’s failure to pass can be set at the feet of the Republicans.

I think there are two things at play in the Democratic camp – both equally disturbing to a Democratic fundraiser, a guy who has testified before Congressional Committees and someone who has brought numerous clients poisoned by tainted food to add color to the Committee theatre.

First, that the Democratic leadership does not have the Democratic votes to pass this landmark legislation. With farm state Senators being seduced by the Tester’s small farm amendment and the liberals by Feinstein’s BPA amendment, perhaps Reid and the rest simply do not have the votes to pass the legislation?

Second, so what if Reid has the votes, but not the kind he wants? What if this bill actually has more Republican votes than Democratic ones? What if on this bill the Republicans want to say yes, but doing so would both show that the Democrats are not united and the Republicans are no the party of completely no. Yes, it does seem clear that the Republicans are intent on keeping to their narrative of no. But, perhaps the Democrats do not want to give the Republicans a chance to be bi-partisan?  Perhaps the Democratic narrative would be compromised by too many Republican yeses.

So, there is no Santa and politics is nasty and stupid. It really took me 53 years to figure that out?

CDC is collaborating with public health officials in many states, the U.S. Department of Agriculture’s Food Safety and Inspection Service (USDA/FSIS), and the U.S. Food and Drug Administration (FDA) to investigate a multistate outbreak of Salmonella serotype Chester infections.

As of June 18, information had been collected on 14 ill and 21 well persons. Preliminary analysis of this study suggests eating a Marie Callender’s frozen meal as a possible source of illness. Ill persons (86 percent) were significantly more likely than well persons (10 percent) to report eating a frozen meal. All ill persons (100 percent) who ate frozen meals reported eating a Marie Callender’s frozen meal. None (0 percent) of the well persons who ate a frozen meal reported eating a Marie Callender’s frozen meal. At this time there are insufficient data to implicate a specific frozen meal type. However, many of the ill persons have reported eating a Marie Callender’s cheesy chicken and rice frozen entrée in the week before becoming ill.

Today, the Minnesota Department of Agriculture Laboratory reported to CDC that it has isolated Salmonella Chester from an unopened package of Marie Callender’s Cheesy Chicken & Rice single-serve frozen entrée collected from a case patient. Subtyping of the Salmonella strain is under way.

As of June 18, 2010, a total of 30 individuals infected with a matching strain of Salmonella Chester have been reported from 15 states since April 11, 2010. The number of ill people identified in each state with this strain is as follows: CA (4), CO (2), GA (6), IL (1), KY (1), MA (2), MN (2), MO (1), NC (1), OK (1), OR (2), SC (2), TN (1), UT (1), and VA (3). Among those for whom information is available about when symptoms started, illnesses began between April 5, 2010 and May 29, 2010. Case-patients range in age from <1 to 88 years old, and the median age is 37 years. Fifty-four percent of patients are female. Among the 15 patients with available hospitalization information, 6 (40%) were hospitalized. No deaths have been reported.

I was directed this morning to reread the CDC’s report on the “Multistate Outbreak of Salmonella Infections Associated with Frozen Pot Pies --- United States, 2007,” involving ConAgra pot pies and Salmonella I 4,5,12:i:-*. Although we represented dozens of those sickened from that outbreak, I was frankly unaware how many people became ill AFTER the recall was announced on October 11, 2007. See below:

The Details - On June 6, 2007, a cluster of four human Salmonella serotype I 4,5,12:i:-* infections sharing a pulsed-field gel electrophoresis (PFGE) pattern was identified by the Pennsylvania Department of Health and reported to PulseNet.† Initial investigations conducted during June--September 2007 by state and local health departments in collaboration with CDC did not identify a source of infection. This report summarizes the results of subsequent investigations of the outbreak, which determined that 401 cases of salmonellosis occurred in 41 states during 2007, with 32% of ill persons hospitalized. A multistate case-control study conducted during October 3--13 indicated that illness was associated with consumption of Banquet® brand frozen, not-ready-to-eat pot pies (odds ratio = 23.6; p<0.001). Further investigation determined that 77% of patients who ate these pies cooked them in microwave ovens and that consumer confusion regarding microwaving instructions might have resulted in a failure to cook the product properly. A voluntary recall was issued by the manufacturer (ConAgra Foods Inc., Omaha, Nebraska) on October 11, 2007, for all nine brands of pot pies produced at the implicated plant (plant A). The outbreak strain was isolated from 13 samples of unopened Banquet pot pies collected from the homes of patients. This outbreak highlights the need to cook not-ready-to-eat frozen foods thoroughly; these products should be clearly labeled as requiring complete cooking, and cooking instructions should be validated to account for variability in microwave wattage and common misconceptions among consumers regarding the nature of not-ready-to-eat foods.

So, it begs the question, unless you think people who got sick after October 11 were trying to commit suicide by pot pie, you have to question how effective recalls really are.

ConAgra Foods Packaged Foods, LLC, a Council Bluffs, Iowa establishment is recalling Marie Callender's brand Cheesy Chicken and Rice frozen meals, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced today.

The company is recalling all Marie Callender's brand Cheesy Chicken and Rice frozen meals in commerce, regardless of production date. These products are being recalled after the company was informed by the U.S. Centers for Disease Control and Prevention (CDC) of an investigation involving 29 people in 14 states who have been diagnosed with salmonellosis linked to Salmonella serotype Chester. Eight of the case-patients specifically reported eating this product in April and May, 2010, prior to illness onset; the last reported illness was reported on May 22.

FSIS became aware of the problem during the course of an ongoing investigation of a multi-state outbreak of Salmonella serotype Chester illnesses. CDC, the Food and Drug Administration (FDA), FSIS, and state health and agriculture departments are cooperating in this ongoing investigation. The investigation is ongoing, and has not yet definitively identified a food vehicle(s). Further information will be released to the public as it becomes available.

The products subject to recall include:

13-ounce packages of "Marie Callender's Cheesy Chicken & Rice White Meat Chicken and Broccoli over Rice Topped with Rich Cheddar Sauce."

Each package bears a label with establishment number "P-45" inside the USDA mark of inspection. The establishment is recalling all the products listed above which are currently in commerce. These products were distributed to retail establishments nationwide.

Sitting in the private conference room of U.S. District Judge Donovan Frank yesterday with Stephanie and her mom Sharon as the judge carefully considered the settlement with Cargill, brought home again to me the reality of Stephanie’s struggle – all because she ate a hamburger. As AP reported, “Smith and Cargill announced the settlement last month, saying it would provide for Smith's care throughout her life.” However, “[t]he former children's dance instructor was left paralyzed, with cognitive problems and kidney damage.” A settlement, yes, and a door closing, but a life forever changed.

Despite what some critics of strict liability lawsuits say, a lawsuit like Stephanie’s against Cargill does give an incentive to companies to not poison their customers and to put lawyers like me out of business. But, lawsuits are not enough. Education in the sciences – specifically food safety – is important to avoid outbreaks, illnesses and, yes, lawsuits. That is why, as reported in the St. Cloud Times we donated “$25,000 to Rocori High School for science scholarships. … to encourage and support students interested in science, especially in food safety and the treatment of food-borne disease.” As the St. Cloud Times reported:

Marler represents numerous plaintiffs in food-borne illness cases across the country. He also has lobbied Congress for a food-safety bill to provide more money for the Food and Drug Administration to inspect and improve the safety of the nation’s food supply.

Lawsuits, education and politics are important, but good and evolving science also play a part. In reading Shannon Dininny’s AP article this morning, “Regulators consider broadening testing for E. coli,” I thought about how hard it is for all of us to look around the corner at the next risk and to prepare. Yet, it is something we must do.

The food industry and government regulators have focused for years on finding the most virulent strain of E. coli bacteria, which every year sickens thousands. But they don't regularly test for six less common E. coli strains that can cause illnesses equally as serious. [These s]ix other E. coli strains that also produce the toxin account for the majority of non-O157 E. coli cases — estimated at 30,000 illnesses in the U.S. each year, according to the Centers for Disease Control and Prevention. But just 5 percent of public health laboratories nationally test for these strains, so there is no reliable way to know whether the number of illnesses is increasing.

There have been no known outbreaks of the other six strains in meat, but the Seattle law firm that specializes in food-related illnesses, headed by attorney Bill Marler, has petitioned the USDA to list them as adulterants in meat. Marler said he hopes his call for more screening of meat will prompt other industries, such as produce, to follow suit.

And, with more testing, less outbreaks and illnesses.

Last week when Jim went after Marion Nestle and Denis Stearns, I suggested that it best to ignore his ranting.  However, In reading Jim Prevor’s recent posting (“No Matter What Growers, Shippers, or Retailers Do About Food Safety, ‘You Will Be Sued,” posted on June 11, 2010), I knew that I had to respond, but—really, where to begin?

Jim obviously believes he knows a lot of about the “legal system” that he so eagerly bashes, and he implies he knows a lot about concepts such as “strict liability” and “negligence” too. But I think Jim is too busy sticking up for the produce industry (as others do for their industry of interest), and ignoring its sorry safety track record over the last fifteen years, to offer an informed critique of the product liability system in the United States. (And, don’t get me wrong, there’s lots worthy of criticism). So let me point out two places where Jim is seriously misinformed.

First, despite Jim’s assertion to the contrary, strict liability is not the same thing as absolute liability. With absolute liability, manufacturers act as insurers of the safety of their products, and proof of product-related injury is all that is required to obtain compensation. Now, believe you me, there is no shortage of scholars and judges who have argued over the years in favor of a system of absolute liability. But, on the whole, courts and legislatures have been unanimous in rejecting absolute liability. As a result, a person who claims a product-related injury must not only prove the fact of the injury, but the person must also prove that: (1) the product was defective; and (2) the defect in the product caused the injury. And while Jim seems to enjoy pretending that proving these two things is easy, it is not. He also ignores the fact that, in the vast majority of cases, proving a product is defective is nearly identical to proving negligence. In other words, when a bag of romaine lettuce is contaminated with E. coli O157:H7—a result that the manufacturer obviously did not intend, and planned to avoid—the fact of that contamination proves that the manufacturing process fell short of what was intended. And, lo and behold the falling short is…wait for it…negligence. All that strict liability does is free the injured person from the need to prove exactly how the contamination came to be—that is, to demonstrate the exact set of events that caused the defect to come into being. As such, proof of the defect acts as a proxy for proof of negligence.

Second, Jim likes to describe the often horrific injuries that people suffer as a result of defective products “collateral damage.” I am guessing that if it was someone in his family who died or was permanently injured, he would be less sanguine about this, and certainly less proud of coining such a term. The fact of the matter is that strict liability evolved in the United States precisely because the collective wisdom of judges AND legislatures decided that consumers should not have to pay the price when companies like Ford “elect to value economy”—as Jim so coldly put it. Companies do not try to create “value” by cutting corners on safety; they try to create PROFITS. And that is not the same thing. How many people do you think would have bought a Ford Pinto if they had been warned in advance that getting rear-ended would cause the car to explode into a life-ending fireball? Not many, me thinks.

In the end, Jim’s position is that the produce industry should be free from liability because it tries just so darn hard. Well, as far as I’m concerned, the produce industry is not trying hard enough until people are no longer killed and injured as a result of eating its unsafe and defective products.  And, if they are unwilling to do that, then they should be sued.

Note - If he really wants to become knowledgeable about these subjects, maybe he should think of auditing Product Liability Law (Tort 300), one of the courses that my law partner, Denis Stearns, teaches as a professor at Seattle University School of Law. But I’m guessing Jim will take a pass on that.

Marler Clark has donated $25,000 to Rocori High School of Cold Spring Minnesota to start the Stephanie Smith Science Scholarship at the high school that Stephanie graduated from a few years ago.

It is my hope to encourage and support students interested in science - especially food safety and the treatment of food borne disease. 

Ill people have reported eating at Subway restaurants located in 23 Illinois counties -- Bureau, Cass, Champaign, Christian, Coles, DeWitt, Fulton, Knox, LaSalle, Macon, Marshall, Mclean, Moultrie, Ogle, Peoria, Sangamon, Schuyler, Shelby, Tazewell, Vermilion, Warren, Winnebago and Will.  Age range of confirmed cases: 2 to 79. 

(38.6 cases of Salmonella infection for each culture-confirmed case see, http://www.cdc.gov/enterics/publications/374-voetscha1.pdf)

For more information generally about Salmonella, visit www.about-salmonella.com.  To hear the mellow tones of me talking Salmonella, click below:

The raw milk drinkers and I have not been getting on well lately. Since this is my blog, I do not have to write down all their descriptions of me. However, a few moments on www.thecompletepatient.com will give you a sense of their animus.

I must admit that I am not blameless. I recently described them to New York Magazine as “a combination of tea baggers and granolas.” I then got quoted in USA Today as pointing out that "[r]aw milk is where the right and left come back together. It's an intersection for the 'back to nature' and the 'don't tread on me,' people — they're the granola tea-partiers."

But, it was Michael Feldman’s Op-ed in the New York Times, “Crying Over Raw Milk,” however, that was the best, when he coined the phrase “teat party” to describe the political phenomena.

So, is the “teat party" a "farce to be reckoned with" or “udderly ridiculous?”  My suggestion is to spend time on www.realrawmilkfacts.com and decide for yourself.

Yesterday after giving a speech to NEHA on the dangers of the industrialized beef supply, I received the following email statement from the Hartmann Dairy which is at the center of an E. coli O157:H7 outbreak in Minnesota that has sickened at least five. Here is the relevant part of the email:

Not a single test of raw milk was found to contain any strain of e.coli.

At paragraph 9, the State wrote in the Petition that of the 103 samples tested, 9 samples tested positive for e.coli, a bacteria found in the lower intestines of virtually all mammals. Of the 9 samples, none was from any milk cow; 4 calves manure (not milked), manure from a cow pen (beef cows, not dairy, not milked), manure from a pasture for dry cows (not milked), manure from a steer yard (steers are not milked), manure from 2 heifers (not milked), and manure from one sheep (not milked). No claim is made that any sample from a dairy cow or the dairy barn contained any e.coli.

Two samples of cheese, one cheddar and one herb and spice Gouda, made from raw milk were found to contain a strain of e.coli that the state could not identify as e.coli 0157:H7. A third positive test for an unidentified strain of e.coli was taken from a bucket of clean-up rinse water. As everyone knows, cheese is intentionally cultured with bacteria to create the product and until a specific strain is identified there is no evidence of contamination.

As of today, there is no evidence of any harmful bacteria in any raw milk, cheese, meat or other product sampled from the Hartmann farm. The State has engaged in a serious regulatory and potentially criminal action in a grossly negligent manner with total disregard for the defamatory content of their media campaign.

Minnesota Department of Health responded. The response, in part, is below:

What evidence do you have that raw milk from the Hartmann farm caused the illnesses?

This investigation began like many other foodborne investigations: Someone becomes ill, sees their physician and the physician sends a stool specimen to a clinical laboratory. If that laboratory finds, or “isolates”, one of a number of illness-causing bacteria (eg., Salmonella, E. coli O157:H7), they send that bacterial isolate to the MDH Public Health Laboratory (PHL) for further testing. Each bacterial isolate is DNA fingerprinted by a technique called pulsed-field gel electrophoresis (PFGE).

During May 2010, E. coli O157:H7 isolates from 5 patients sent by separate clinical laboratories to the MDH PHL were found to all have the same DNA fingerprint by PFGE testing.

This particular DNA fingerprint type (which also can be called a “strain”) of E. coli O157:H7 had never been seen before in Minnesota. The fact that multiple patients all were infected with this new strain in such a tight timeframe indicates that there was a common source for the illnesses. In other words, the patients must have acquired their infection from the same source.

In any foodborne illness investigation, MDH epidemiologists interview patients about an extensive array of possible exposures. These interviewers use a standard questionnaire and interview technique. This includes asking questions about what the ill people ate, including meat, produce and other food items. It also includes questions about recreational water and drinking water, contact with animals, daycare attendance, and more.

In this outbreak, the ill people came from communities across Minnesota, and the only exposure the cases had in common was consumption of raw dairy products from the Hartmann farm. This connection, and the fact that the same strain of E. coli O157:H7 found in the ill people was found in several animals and from several environmental samples on the Hartmann farm, clearly indicates that the farm was the source of the E. coli O157:H7 that made the people ill.

What is the significance of finding E. coli O157 in the environmental samples from the farm?

The strain found on the farm matches the strain found in the cases of illness. Again, this is a strain that has never been seen before in Minnesota.

This tells us that the bacteria that sickened the people was on the Hartmann farm and since several of the people that became ill never visited the farm, their only potential source would have been food products from the farm.

Did you find the outbreak strain in dairy product from the cases’ homes or from the farm?

The outbreak strain of E. coli O157:H7 has not been found in product yet. However, product samples that were collected from the farm were obtained one week to several weeks after production of products that made people sick. Other strains of Shiga toxin-producing E. coli were found, indicating an ongoing problem with contamination.

The fact that the outbreak strain was not found in samples of product taken from the farm or homes does not mean it wasn’t in the product that sickened the individuals. In many cases, only particular batches of product may have been contaminated. The product from the contaminated batches may not be available for testing because it has already been consumed. Even if the contaminated batches are available for testing, the contamination may not be uniformly distributed throughout the product. It can be difficult to find the “needle in the haystack” when only small amounts of product are able to be used for a laboratory test. The fact that some pathogen was not found in a sample taken today does not mean it wasn’t there yesterday or a week ago, or won’t be there tomorrow. Also, since raw milk contains many types of bacteria it is a difficult process to isolate individual bacteria growths and find the disease-causing strains.

The outbreak strain of E. coli O157:H7 was found in the manure of some individual calves, sheep, and cattle pens. Of note, the calves were likely drinking the same milk as that consumed by the cases.

Standard public health practice does not require finding the illness strain of pathogen in either environmental or product samples in order to determine the source of an outbreak and before intervention to prevent further illness should be initiated. In fact, it is quite rare in foodborne investigations that food product is available for testing as it is often perishable or has been completely consumed by the time the outbreak is recognized. State health and agriculture officials often act on epidemiologic evidence to remove contaminated products from the marketplace and prevent additional illnesses. Indeed, to do nothing in the face of such compelling evidence would be irresponsible – regardless of the size or nature of operation implicated.

Are there more cases being investigated?

Yes, MDH has received additional reports of illness in several consumers of Hartmann dairy products that it is investigating.

The Minnesota Department of Health Epidemiologists and the Health Department lab are considered the best in the country at investigating foodborne outbreaks.  Its response to the Hartmann Dairy is as devastating to Hartmann's wishes as it is accurate and clear.

The Illinois Department of Public Health (IDPH) today reported 60 cases of Salmonella ser. Hvittingfoss associated with the ongoing investigation of illnesses among customers who ate at certain Subway restaurants in Illinois. All cases are recovering, of which 17 had been hospitalized.

As of today, Salmonella cases identified in this outbreak reported eating at Subway locations in 22 counties -- Bureau, Cass, Champaign, Christian, Coles, DeWitt, Fulton, Knox, LaSalle, Macon, Marshall, Moultrie, Ogle, Peoria, Sangamon, Schuyler, Shelby, Tazewell, Vermilion, Warren, Winnebago and Will. At this point in the investigation, no cases have reported eating at Subway restaurants in the southernmost portion of Illinois. Illnesses are reported to have started between May 11 and May 25 and cases range in age from three-years to 88-years-old.

At this time, a specific food source has not been identified in association with this outbreak. The Illinois Department of Public health is working closely with the Food and Drug Administration, the Centers for Disease Control and Prevention, the Subway restaurant chain and local health departments throughout the state to identify the source of illness.

The specific type of Salmonella involved in this outbreak is an uncommon serotype called Hvittingfoss. Typically, only one to two cases of this type of Salmonella are seen in Illinois per year.

Dr. Raymond does a blog (or at least he used to) over at www.meatingplace.com. I am stealing one he did today below:

I think almost every reader of this blog knows OF Bill Marler, but I wonder how many readers really KNOW Bill Marler?

For sure, he is the most prominent and recognizable plaintiffs’ attorney in foodborne illness litigation (and also non-foodborne illnesses such as petting zoos, drinking water, etc.) but he is also one of the most prominent and recognizable food safety advocates. So I think I am very safe in saying he is not loved by many of the readers, and it is also safe to say that many of the readers today are glad Bill Marler is advocating daily for a safer food supply thru his blogs, his online journals, and his support for consumer education and legislation.

Yes, Bill Marler started his ascent to becoming a common name in the food industry circles when he won a judgment of $15.6 million for Brianne Kiner in the 1993 Jack in the Box outbreak. But many don’t know that when he recently won a case for the parents of Abby, a child who died of an E. coli infection in 2009, he donated funds to establish a scholarship in her memory at the school she had attended.

Yes, Bill Marler sued Cargill on behalf of Stephanie Smith for $100 million (it has been settled for an undisclosed amount) but in the same year, he received the Food Safety Leadership Award for Innovation in Education from NSF International. He was also seen handing out meat thermometers at the FSIS Consumer Education Conference in Atlanta, and was seen at the annual International Food Safety Conference in Beijing, China, the last three years as a prime sponsor.

Yes, Bill Marler has won over $500 million in litigation for his clients over the years (and earned his commission, of course) but he has also established a daily food safety blog site, www.marlerblog.com, that he contributes to several times a day and a daily electronic magazine with at least four full time writers and many free lancers called Food Safety News, www.foodsafetynews.com, that helps keep readers up to date on all food safety issues of the day. Both of these methods of communicating food safety news also have valuable links to other blogs and stories. In addition, Marler has recently gone on line with his Foodborne Illness Database,www.outbreakdatabase.com, with links available there to CSPI’s and CDC’s outbreak databases.

To be sure, Bill has some that do not appreciate his advocating for victims of foodborne illnesses, but he has others that wish he had achieved his dream of being the current Undersecretary for Food Safety at the USDA. He may be accused of “courting publicity”, but without publicity, his, and his clients' voices, would not be heard. He has written extensively, testified before Congress, presented at many conferences, and was even a factor in convincing the Wisconsin and California Governors to veto bills that would have liberalized the production and sale of raw milk.

While spending nearly a half million dollars of his own money (yes, money earned by representing victims of foodborne illnesses) to test 5,000 samples of ground beef for non-O157:H7 Shiga Toxin producing E. coli, he petitioned the Food Safety Inspection Service at the USDA to recognize and regulate all enterohemorrhagic E coli as adulterants in ground beef. And by the way, this testing found that nearly 2% of samples were contaminated with non-O157 E coli, and that means fecal presence. One sample tested positive for O157:H7 and resulted in a non-FSIS initiated recall.

I call that aggressively protecting the public from a foodborne illness, but am interested in hearing what you call it.

WIFR reports that the Illinois State Health Department is investigating what led to a salmonella outbreak linked to some Central Illinois Subway shops. Two of the 34 cases have been reported in Ogle County. Candy Johnstone said she is one of the victims of the salmonella outbreak linked to subway shops throughout central Illinois. She said she ate a veggie sub at the location on 7th street in Rochelle about three weeks ago. It was the same time these illnesses started being reported. State Health Investigators said the 7th street location in Rochelle is being investigated because of two cases reported in Ogle County.

The attorney for this shop issued a statement. In part, it said that Subway has taken precautionary measures by destroying lettuce, green peppers, red onions, and tomatoes that are suspected ingredients for the outbreak. Subway corporate managers said all Subway locations have done this. They too, issued a statement today explaining they have high standards for produce vendors, and that all produce is checked by Subway and by third party auditors.

Really? Does Subway test all its lettuce for pathogens, like Salmonella?

AP reported today that the state of Washington revoked the license of a Southwest Washington in-home day care where Four-year-old Ronan Wilson contracted a fatal case of E. coli.  Dianne and Larry Fletch had operated the Hazel Dell day care for more than 20 years. Their license had been suspended in April while the state investigated.

The couple told The Columbian newspaper they will appeal.

Four-year-old Ronan Wilson of Hazel Dell died April 8 after a week at a Portland hospital.  Other children and adults who had been in the home also were sickened by E. coli bacteria.

Strike One - Subway Hepatitis A Outbreak - Washington

Strike Two - Subway Restaurant Shigella Outbreak - Chicago

Strike Three - The Illinois Department of Public Health and local health departments throughout the state are investigating the cause of Salmonella illnesses among customers who ate at certain Subway restaurants in Illinois. To date, 34 cases of Salmonella have been confirmed with this outbreak and all are recovering, of which 14 had been hospitalized.  The specific type of Salmonella involved in this outbreak is a rare serotype called Hvittingfoss.

Salmonella cases identified in this outbreak reported eating at Subway locations in 14 counties, including Sangamon, Schuyler, Christian, Bureau, LaSalle, Cass, Champaign, Peoria, Shelby, Warren, Macon, Ogle, Fulton and Tazewell. At this point in the investigation, no cases have reported eating at Subway restaurants in either northeastern or southernmost portions of Illinois. Illnesses are reported to have started between May 14 and May 25 and cases range in age from six-years to 88-years-old.

You're Out!

I must admit that I tire of the moans from raw milk advocates that Big Dairy and Big Government is out to get them. I shake my head at the unfounded belief that grass fed cows will never produce a pathogen that can sicken a child. I cringe at the anti-science blather protesting that all outbreaks linked to raw milk never happened, or were caused by something else, or were part of some dark conspiracy designed to discredit what is really a wonder-product. I wish that I had a nickel for each time a raw milk aficionado claimed that I am a tool of the FDA, or State and Local Health Departments, who apparently wrongly nailed a poor raw milk farmer who poisoned a few customers.

Despite the whining to the contrary, raw milk outbreaks do happen and will happen. As I said late last week, Health department officials in Minnesota reported three, and possibly four, E. coli O157:H7 infections linked to drinking raw milk from a dairy in Gibbon, Minnesota. All of the sick were infected with a strain of bacteria that had the same-pulsed field gel electrophoresis (PFGE) pattern, or DNA fingerprint. One infected child developed Hemolytic Uremic Syndrome (HUS), and is still hospitalized.

Despite the protests from the “raw milkies,” there have now been at least nine outbreaks scientifically linked to raw milk since January 2010. The other states with outbreaks include Nevada, Utah (two outbreaks), New York, Pennsylvania, Washington (two outbreaks), and a multistate outbreak in Michigan, Indiana, and Illinois. Dozens of people have been sickened in these outbreaks; some very seriously so.

But, is raw milk treated unfairly? Have health departments brought the hammer down on raw milk, while giving a free-pass to other dangerous products? As someone once said, “just because they are paranoid, does not mean they are not out to get them.”

This may be a bit of a shocker to my raw milk fans, but, on this, I may agree with them—which clearly must mean that I’ve gone off the reservation, or stopped being a so-called lap dog (or attack dog) of the FDA and Big Ag. Let me be clear though: I am not saying that health officials should not crack down on raw milk producers who poison customers. Nor am I saying that raw milk producers should escape being held accountable for the injury and damage caused by contaminated raw milk. I simply believe that raw milk producers should be treated no more—or less—strictly than any other producer of unsafe or contaminated food products. And this is especially true for ready-to-consume products, like raw milk or fresh produce, where there is no kill-step involved in the production process. Bottom line: Raw milk outbreaks should be publicized, but so must outbreaks involving contaminated lettuce.

But the problem here is that I do believe there’s a double standard. Why is raw milk emphatically criticized when it causes illness while some lettuce producers are allowed by public health officials to escape public scrutiny when their contaminated product has caused illness? And just so you don’t think I’m exaggerating, here are some problematic lettuce outbreaks that were essentially kept secret—that is, until I discovered the fact of such outbreaks and went public with the news:

Romaine lettuce, May 2008: In May 2008, Washington State Department of Health learned of a small cluster of E. coli O157:H7 illnesses amongst Pierce and Thurston County residents. Over the several days that followed, a total of 5 E. coli O157:H7 illnesses were reported in those counties. Testing by WSDOH showed that the bacterial isolates from four of these positive stool samples were indistinguishable after PFGE testing. By the end of the week of May 26, 2008, nine laboratory-confirmed cases and one epidemiologically linked case had been reported. WSDOH testing determined that all nine lab-confirmed cases had indistinguishable PFGE patterns.

Interviews revealed three clusters of illness: three cases at Pacific Lutheran University; three cases from a banquet at La Quinta Inn in Tacoma; and three illnesses amongst students in the Olympia School District. Further, investigators learned from the food histories of all cases that the only food consumed by all cases was lettuce.

Traceback investigation ultimately showed that the implicated romaine lettuce had been distributed to these locations by Northwest Fruit and Produce, a Tacoma-area distributor, and had been manufactured and processed by a string of companies from Salinas, California. The lettuce was grown by Andrew Smith Company at Braga Ranch, packed by Paul’s Pak, and shipped to a processing facility owned by True Leaf Farms. Church Brothers ultimately marketed the lettuce for sale on behalf of a now-defunct produce company called Premium Fresh Farms. No recall, no publicity.

Spinach, August 2008: In August 2008, five case patients with E. coli O157:H7 were reported in Multnomah County, Oregon. Testing of patient isolates by PFGE and MLVA revealed that all five patients were infected with a specific subtype. Public health investigators conducted a case-control study. Results showed that consuming raw spinach had the strongest statistical association with illness. Product traceback of spinach led Oregon investigators to spinach grown by an Organic Farm in Monroe, Washington.

A link between E. coli O157:H7 illness and spinach continued when a second outbreak of E. coli O157:H7 that was identified in Washington state. Investigators in Washington identified five laboratory confirmed cases that were a genetic match by PFGE and MLVA to the Oregon cluster. The first date of illness onset was August 28, 2008. The last case became ill on October 2, 2008. Washington case patients also reported eating organic loose spinach at a variety of locations where the spinach was sold. These included the Port Townsend Coop and deliveries of spinach sold through community supported agriculture (CSA) programs. No recall, no publicity.

Romaine lettuce, October 2008: In October 2008, 3 case patients with E. coli O157:H7 sharing an indistinguishable PFGE pattern combination were identified in San Diego and Orange County, California. All three cases had eaten salads containing romaine lettuce served at Cheesecake Factory restaurants within two days of each other. The subtype was unusual, prompting a cluster investigation coordinated by the CDC. Through OutbreakNet, a fourth case-patient in the cluster was identified, an 18 year old resident of South Dakota. This patient, a recent visitor to San Diego, had eaten a salad at one of the two Cheesecake Factory restaurants identified earlier by two patients. Furthermore, the three case-patients had all eaten at the restaurant on the same day.

County restaurant inspectors conducted an investigation into the source of the lettuce at the two Cheesecake Factory restaurants. Both restaurants received Andy Boy brand romaine lettuce from Fresh Point, a company based in Los Angeles. The outbreak quickly grew beyond Southern California. Public health laboratories continued to report PFGE matches to the outbreak strain. Case-patients were identified in Illinois, Florida, New Jersey, and Ohio. These individuals reported restaurant exposures but none ate at a Cheesecake Factory.

This led investigators to suspect a contaminated ingredient was in the marketplace. Canadian investigators in Ontario identified an outbreak involving 55 persons with at least 13 ill case patients culturing positive for the outbreak strain. The majority of cases were linked to one of two restaurants. Illnesses occurred between October 11 and October 28. Canadian investigators conducted a case-control study and lettuce was statistically associated with illness. Product traceback showed that two restaurants tied to the outbreak shared a common produce supplier and that Andy Boy brand romaine lettuce was the only lettuce in common to all Canadian restaurants with outbreak cases. No recall, no publicity.

Romaine lettuce, summer 2009: In late-July and early-August 2009, at least 100 people were infected by a matching strain of Salmonella typhimurium in Oregon, Washington, Idaho, Colorado, Montana, and possibly other states. The cluster of illnesses was first recognized in mid-August. Early in the large-scale investigation that followed, involving the CDC, FDA, and health agencies from all affected states, it was thought that other PFGE-matched typhimurium cases nationally were part of the outbreak, but later MLVA analysis distinguished some of these cases from the July/August 2009 outbreak. Epidemiological investigation by the Washington State Department of Health, in conjunction with information from MLVA-matched individuals in other states, ultimately identified shredded iceberg lettuce from multiple retail locations, some very common, as the outbreak vehicle. In Oregon and Washington, these retail locations included, among others, Subway, Cash and Carry, Taco Del Mar, Burger King, Quiznos, Big Town Hero, Bandito’s Burrito, Taco Lobo, and Jalapeno Restaurant. Washington State health officials conducted traceback analysis on multiple common ingredients served at these locations, including shredded lettuce, cheese, and tomatoes; but only lettuce was found to have uniformly come from a common supplier. No recall, no publicity.

Lettuce, Spring 2010: Finally, health officials in the Upper-Midwest investigated and confirmed a link between several Salmonella illnesses and the consumption of lettuce products from Fresh Express, a subsidiary of Chiquita Brands International Inc over a month ago. Again, no recall and no publicity.

Again, I am not saying that public health officials should ease up on raw milk; they most definitely should not. But, there is still an issue of fairness here. And despite the public health officials telling me that they cannot publicize every outbreak, I don’t buy that as either an explanation or an excuse. I also don’t buy the argument that a perishable item like lettuce is likely to have already been eaten by the time they figure out, after the fact, an outbreak has happened. Can’t the same thing be said about raw milk?

Telling the public that there was an outbreak linked to a given food product is a duty that public health officials may not shirk. Telling the public that a lettuce producer poisoned customers is just as important as reporting about a raw milk farmer’s product. Consumers need that information so they can vote with their pocketbook. Businesses that poison their customers need to have a light shone on them so both policy makers and other business can learn from the mistakes. Our free market does not function if information about the safety of our food is hidden from us.

Treating businesses equally and fairly is the right thing to do. It’s good for consumers and good for business—even ones selling raw milk.