August 2011

Screen Shot 2011-08-30 at 6.46.29 AM.pngTHe CDC reports that a total of 106 individuals infected with the outbreak strain of Salmonella Agona were reported from 25 states between January 1 and August 25, 2011. The number of ill persons identified in each state with the outbreak strain was as follows: Arkansas (1), Arizona (4), California (8), Colorado (1), Georgia (8), Illinois (18), Indiana (1), Kentucky (1), Louisiana (2), Massachusetts (1), Minnesota (3), Missouri (3), Nebraska (2), Nevada (1), New Jersey (1), New Mexico (3), New York (9), Ohio (1), Oklahoma (1), Pennsylvania (2), Tennessee (1), Texas (25), Virginia (2), Washington (5), and Wisconsin (2). 

• Epidemiologic, traceback, and laboratory investigations linked this outbreak to eating fresh, whole papayas imported from Mexico by Agromod Produce, Inc. of McAllen, Texas.

• On July 23, 2011, Agromod Produce, Inc. voluntarily recalled fresh, whole papayas that were imported from Mexico and distributed nationwide and to Canada through retail stores and wholesalers. The recall includes all Blondie, Yaya, Mañanita, and Tastylicious Brand papayas sold prior to July 23, 2011.

• This particular outbreak appears to be over. However, Salmonella is still an important cause of human illness in the United States. More information about Salmonella, and steps people can take to reduce their risk of infection, can be found on the CDC Salmonella Web Page and the CDC Vital Signs Web Page.

• The U.S. Food and Drug Administration (FDA) and its counterpart agencies in the Mexican government have been working closely together to find the source or sources of contamination of Salmonella in freshpapayas entering the United States from Mexico. From May 12, 2011, to August 18, 2011, FDA analysis found a 15.6% Salmonella contamination rate. The positive samples were from 28 different firms and include nearly all the major papaya producing regions in Mexico. Under an FDA Import Alert issued on August 25, 2011, papayas from each source in Mexico may be denied admission into the United States unless the importer shows they are not contaminated with Salmonella.

Goodness, if paypayas were cantaloupe and imported by Del Monte, would we see another lawsuit against the FDA and a few selected states?

As Merriam Webster say:

1 a : of little weight or importance

b : having no sound basis (as in fact or law) <a frivolous lawsuit>

2 a : lacking in seriousness

According to a Del Monte press release, Del Monte has notified the State of Oregon it intends to sue it over the recall, which it says was based on a “clear error of judgment.” The notice follows a related federal lawsuit Del Monte filed against the federal Food and Drug Administration (FDA) last week in Maryland. Del Monte says that Dr. William Keene, Oregon State Senior Epidemiologist played a large role in the recall. Del Monte says its cantaloupes were not to blame and that Dr. Keene acted hastily and without sufficient evidence in pushing for a recall.

“Dr. Keene and the OHA conducted an apparently cursory investigation of the illnesses and concluded that they were associated with the consumption of cantaloupes by the patients who became ill,” reads an Aug. 26 tort claim filed with the Oregon Department of Administrative Services. “Dr. Keene reached this conclusion without ever testing any cantaloupes to determine whether they were contaminated with salmonella.”

“Despite the lack of evidence for their claims concerning Del Monte Fresh’s imported cantaloupes, the Public Health Division and Dr. Keene pushed the FDA to order a recall.”

Screen Shot 2011-08-29 at 7.07.17 PM.pngDel Monte has an interesting spin on the actual facts. Arizona, California, Colorado, Montana, Nevada, Pennsylvania, Utah, Washington, and Maryland Health Departments, along with the CDC and FDA, came to the same conclusion as Dr. Keene and Oregon – Del Monte was the source of the Canteloupe that sickened 20 people.

According to the CDC, as of June 20, 2011, a total of 20 ill people infected with the outbreak strain of Salmonella Panama have been reported from Arizona (1), California (2), Colorado (1), Maryland (1), Montana (1), Nevada (1), Oregon (6), Pennsylvania (1), Utah (1) and Washington (5). Ill people range in age from less than 1 year old to 68 years old, with a median age of 13 years old. Sixty-five percent are male. Among those ill, three have been hospitalized and no deaths have been reported. There have been no new case reports since April 22, 2011.

On March 22, 2011, Del Monte Fresh Produce N.A., Inc. voluntarily recalled 4,992 cartons of cantaloupes, because they have the potential to be contaminated with Salmonella Panama. The cantaloupes were distributed through warehouse clubs in Alaska, California, Colorado, Idaho, Montana, Oregon, and Washington.

The recalled products consist of cartons of cantaloupes, each containing 4 plastic mesh sleeves with 3 cantaloupes per sleeve that were available for sale between March 10 and March 21, 2011. The cantaloupes, grown in and shipped from Del Monte Fresh’s farm Asuncion Mita in Guatemala, have a light brown color skin on the exterior with orange flesh. The recalled cartons of cantaloupes are dark brown cardboard with the “Del Monte” logo in red lettering and “cantaloupes” in yellow lettering on a green background. The cantaloupes have the lot codes: 02-15-24-10, 02-15-25-10, 02-15-26-10 and 02-15-28-10. No illness has been linked to cantaloupes from other sources.

Hey, Oregon, in addition to suing Del Monte for putting one of my client in the hospital, I would be honored to defend Oregon – go Ducks and Beavers.

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I am in Roseburg Oregon for three days of mediation on a Salmonella Outbreak.  We represent a dozen clients sickened.

On April 26, 2010, Douglas County Health Department (DCHD) received five Salmonella positive test results from a local laboratory. This influx of positive Salmonella reports immediately caught the attention of DCHD communicable disease staff as five cases in a single day is well above the county’s typical annual number of reported Salmonella cases. There were 17 reported cases in 2008 and 9 reported in 2009. County officials interviewed case-patients and a common exposure quickly emerged—Los Dos Amigos restaurant in downtown Roseburg.

On April 27, an inspection of the restaurant by Douglas County Environmental Health (DCEH) found two critical violations: 1) Raw or ready-to-eat food was not properly protected from cross contamination, and 2) food employees did not wash their hands as often as necessary. Inadequate changing of gloves and lack of sanitizer in the wipe cloth bucket were also noted.

Environmental samples were collected on April 27, 28, and May 5. While the results did not return positive for the presence of Salmonella, this was not surprising considering—and as the DCHD also notes—“the samples were taken after the peak period of concern for exposure (04/09—04/17).”

State and local public health investigators identified a total of 38 culture-confirmed cases of Salmonella serotype Enteritidis. An additional 35 case-patients who were not laboratory confirmed but were epidemiologically linked to Los Dos Amigos restaurant were classified as “presumptive” cases. Ninety seven percent (97%) of the culture-confirmed cases shared an indistinguishable two-enzyme genetic match by PFGE analysis, further supporting the hypothesis there was a common source of infection. After conducting food history interviews, a number of uncooked food items were found to be statistically associated with illness, including guacamole, cilantro, and green onions, but no one food item could be singled out at the likely vehicle for the outbreak.

Of the genetically indistinguishable culture-confirmed cases, two were employees of the restaurant. Both were interviewed. One denied having any gastrointestinal symptoms while the other, who had an illness onset of April 16, admitted to working while ill with diarrhea on April 16, 17, 18, 19, 21, and 22. As noted by the DCHD, “any food handler ill with diarrhea are required to be excluded from work until they are no longer symptomatic.” They also could not rule out whether the food handlers also became ill from eating at the restaurant.

Although I have had over 1,000,000 visitors to Marler Blog so far this year, I have just over 1,000 subscribers.  So, the first 500 new subscribers will get a free book.  Just subscribe here and email me your address at bmarler@marlerclark.com.  Here is a sample platter of the reviews on “Poisoned” that have come out in the last three months.

Poisoned_mock_book_image.jpgThe News Advance:

“Benedict knows how to make a story both informative and important. “Poisoned,” explains technical details as lawyers wrangle over legal fees and doctors run tests on micro-organisms, while also weaving in the emotions of individuals and families.”

The Day:

“A stunningly researched work, “Poisoned” reads as though Clarence Darrow had written “The Jungle” – and further proves Benedict is at the very top of those artistes whose narrative nonfiction burns like beach-happy, page-blasting thrillers.”

Poor Taste Magazine:

“After reading the first seven pages of your book, I was in tears, one hand covering my mouth, my heart racing as I learned the appalling story of six-year-old Lauren Rudolph, who succumbed to death just one week after consuming a dangerous, bacteria-filled hamburger. I was absolutely sucked in to your retelling of the outrageous, deadly E. Coli outbreak of the early ‘90s — a massive eruption of the most virulent strain of the bacteria that sickened over 600 people, killed four children, and nearly annihilated the Jack in the Box fast-food chain. Your simple but eloquent writing style kept me intrigued page after page, and as a result, Poisoned, with its revealing and heartbreaking stories of the victims of foodborne illnesses, took over my life for an entire week.”

Tri-State Livestock News:

“Benedict’s portrayal of those involved in the case of tainted hamburger traced to Jack in the Box restaurants is compelling, captivating and cautionary. As horrifying as the account is, Benedict tells it with compassion and class. So often lacking in what passes for news writing today, Benedict covers the story from every angle without passing judgment; he does it while presenting the humanness of those involved. From young patients to their parents, fry cooks to restaurant executives, physicians and scientists to the lawyers representing both sides, the reader rides shotgun in the fast-paced thriller that could pass for fiction. Only it’s not.”

 New York Times:

“Jeff Benedict manages to deliver a full literary experience of a medico-legal thriller in a work of nonfiction … Benedict delivers the story in a staccato, you-are-there fashion.” “There is only one supremely colorful character in the story that Mr. Benedict overlooks, and that is E. coli itself.”

“Poisoned” also received some extra exposure when another New York Times writer, Mark Bittman, who discussed “some stomach-churning facts about the E. coli outbreak,” with central character Bill Marler, the lawyer who sued Jack in the Box in the early 1990s.”

“The guy we have to thank for having our current level of protection against E. coli … is Bill Marler who made his bones in the Jack in the Box case.” 

San Diego Tribune:

“Benedict proves to be a master storyteller,” she wrote. “And his subtext is that because of what happened at Jack in the Box, the government changed its regulations, the company provided an all-encompassing plan that it shared with others in the industry to keep food products safe and people changed the way — and what — they eat.”

CS Monitor:

“Then Benedict moves on to the legal battle over the deaths, with a movie-like focus on the young attorney who represents one of the children. That lawyer, Bill Marler, breaks all the usual rules – viewing the child’s injuries, for instance, “more through the eyes of a parent than a lawyer.” But his unconventional approach proved successful and laid the groundwork for his current status as one of the country’s leading and most impassioned food safety lawyers.”

Kirkus Review:

“Just in time for BBQ season, an investigative journalist traces the path of a devastating outbreak of food-borne illness linked to hamburger meat.”

King County Bar Journal:

“Benedict has crafted Poisoned as a multi-part narrative, which takes us behind the scenes at JIB, into the slaughterhouses and hospitals, and through the legal machinations, bureaucracy, and skullduggery. Part of the story is the outbreak and the resulting, well-known legal case; the other side is the lesser-known – and still ongoing – changes in the food industry designed to clean up food processing and prevent future outbreaks. Most of these were initiated by Jack in the Box itself, which hired a leading food safety consultant as a full-time management employee to change the way – and what – Americans eat.”

PapayaRecall.jpgI should never sleep in. Sometime today the FDA will likely announce an Import Alert on Mexican Papaya due to Salmonella Agona. Here is what the FDA is saying thus far:

Mexico produces 11% of the world’s production of papayas. U.S. import data from January 1, 2011 shows that approximately 65% of all papayas imported into the U.S. are from Mexico (primarily from the Mexican states of Jalisco, Colima, Chiapas, and Veracruz), which makes Mexico the largest exporter of fresh papayas into the U.S. Evidence shows there is widespread contamination of Mexican papaya with Salmonella, a human pathogen. Based on this evidence, FDA has determined that papaya imported from Mexico appears to be adulterated within the meaning of section 402(a)(1) of the Federal Food, Drug, and Cosmetic Act because the papayas appear to contain Salmonella, an added poisonous or deleterious substance that may render food injurious to health.

FDA has been collecting and analyzing samples of raw, fresh whole papaya imported from Mexico. From May 12, 2011, to August 18, 2011, FDA analysis found Salmonella in 33 samples out of a total of 211, or a 15.6% positive rate. The positive samples were from 28 different firms and include nearly all the major papaya producing regions in Mexico.

According to the FDA, a multi-state outbreak of human infections of salmonellosis occurred in 2011. More than 100 people were infected with the outbreak organism in multiple states. The CDC earlier reported a total of 99 individuals infected with the outbreak strain of Salmonella Agona have been reported from 23 states between January 1 and July 22, 2011. The number of ill persons identified in each state with the outbreak strain is as follows: Arkansas (1), Arizona (3), California (7), Colorado (1), Georgia (8), Illinois (17), Louisiana (2), Massachusetts (1), Minnesota (3), Missouri (3), Nebraska (2), Nevada (1), New Jersey (1), New Mexico (3), New York (7), Ohio (1), Oklahoma (1), Pennsylvania (2), Tennessee (1), Texas (25), Virginia (2), Washington (5), and Wisconsin (2).

Screen Shot 2011-08-25 at 9.41.48 AM.pngPerhaps the CDC will update the numbers?  Also, think about this.  If this was ground turkey, beef, lamb or chicken (regulated by FSIS), it likely would do nothing about it – certainly not what the FDA is doing right now.

Screen Shot 2011-08-24 at 4.51.46 PM.pngI must admit that I was busy today preparing another complaint in the Cargill Salmonella Heildelberg outbreak and had not had time to pick up the Del Monte vs. USA/FDA lawsuit until some time ago. Interesting read – See PDF – Del Monte vs. USA/FDA. In essence, Del Monte says the CDC and 10 States botched the epidemiology of the Salmonella Panama outbreak that was linked to Del Monte’s imported cantaloupe. In Del Monte’s own words (well, lawyer’s words):

The FDA and other officials described above investigated the illnesses and concluded that they were associated with the consumption of cantaloupes by the patients who became ill. On information and belief, these officials reached this conclusion without a sufficient factual basis to support the conclusion. Among other things, on information and belief, these officials reached this conclusion without ever testing any cantaloupes to determine whether they were contaminated with Salmonella. …

FDA has not adequately accounted for evidence indicating that the illnesses described above were not caused by cantaloupes at all. …

FDA has not adequately accounted for the possibility that any allegedly contaminated cantaloupes came from sources other than Del Monte. …

Here is the CDC’s position:

Screen Shot 2011-08-24 at 4.50.04 PM.pngCDC collaborated with public health officials in a number of states, including California, Maryland, Oregon, and Washington, and the U.S. Food and Drug Administration (FDA) to investigate and to identify the likely source of this multistate outbreak of Salmonella Panama infections. Investigators used DNA analysis of Salmonella bacteria obtained through diagnostic testing to identify cases of illness that may be part of this outbreak.

As of June 20, 2011, a total of 20 ill people infected with the outbreak strain of Salmonella Panama have been reported from Arizona (1), California (2), Colorado (1), Maryland (1), Montana (1), Nevada (1), Oregon (6), Pennsylvania (1), Utah (1) and Washington (5). Ill people range in age from less than 1 year old to 68 years old, with a median age of 13 years old. Sixty-five percent are male.

Based upon the CDC’s and 10 States’ work the FDA posted this recall notice from Del Monte:

Del Monte Fresh Produce N.A., Inc. (“Del Monte Fresh”) of Coral Gables, Florida is voluntarily recalling 4,992 cartons of cantaloupes, each containing 4 plastic mesh sleeves with 3 cantaloupes per sleeve, because they have the potential to be contaminated with Salmonella Panama, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella Panama often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella Panama can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

The cantaloupes were distributed through warehouse clubs in Alaska, California, Colorado, Idaho, Montana, Oregon, and Washington.

The recalled products consist of cartons of cantaloupes, each containing 4 plastic beige mesh sleeves each sealed with a plastic orange handle with the Del Monte Logo and indication “3 count, Product of Guatemala” with 3 cantaloupes per sleeve and were available for sale between the 10th of March and the 21st of March, 2011. The cantaloupes, grown in and shipped from Del Monte Freshs’ farm Asuncion Mita in Guatemala, have a light brown color skin on the exterior, with orange flesh. The recalled cartons of cantaloupes are dark brown cardboard with the “Del Monte” logo in red lettering and “cantaloupes” in yellow lettering on a green background. The cantaloupes have the lot codes: 02-15-24-10, 02-15-25-10, 02-15-26-10 and 02-15-28-10.

Hey, FDA – I know a good lawyer to defend you – And, I am reasonable.

Screen Shot 2011-08-24 at 2.33.18 PM.pngThis week we will be filing yet another lawsuit against Cargill (COMPLAINT PDF). This time it is on behalf of a woman who purchased the tainted turkey on July 31, 2011, at a Food City grocery location in Pigeon Forge, Tennessee. Note, it was the same day that FSIS sent out an advisory (late Friday afternoon) telling the public that there were dozens of people sickened in 23 States by Salmonella, but giving no further information, and long after both the FSIS and Cargill knew that Cargill turkey was the source of sick Americans.

On August 1, she prepared spaghetti, adding the cooked ground turkey to the sauce. The following day she began to become ill. Over the course of the next several days, she suffered abdominal cramps, nausea, vomiting, headache, fatigue, and frequent diarrhea. By August 11, 2011, she was still so ill that her physician recommended that she be hospitalized for treatment with intravenous antibiotics.

Screen Shot 2011-08-23 at 5.36.52 PM.pngThe Cumberland County North Carolina Public Health Department said in a press release that the Hepatitis A vaccination clinic for individuals who visited the Fayetteville Olive Garden on August 8 and who may have been exposed to the illness through an employee continued through Monday, August 22.

Monday was the last day the free shots were offered since it was the last day of the 14-day window when the vaccine is effective.

Since August 9, the Health Department has immunized approximately 2,730 people against the illness.