May 2012

24-mother-earth-nature-art.jpgKaren Robinson-Jacobs of the Dallas Morning News jumped into the Listeria Cantaloupe case today with her story: Texas shipper in cantaloupe listeria case says it has no bankruptcy plans.

I spoke to Ms. Robinson-Jacobs about the impact of the bankruptcy of the grower of the Listeria-tainted cantaloupes:

A central issue in the case will be how much money is available to pay claims that are likely to exceed $70 million, said attorney Bill Marler, who filed suit in the Dallas County case and represents 39 victims or their families.

“The value of these claims far exceeds what minimal insurance Jensen Farms has,” said Marler. “My clients alone have $7.5 million in medical claims.

“The insurance is badly underfunded, maybe by a factor of 50.”

He said victims eventually may file claims against retailers such as Wal-Mart and Kroger. “There’s enough blame to go around,” he said.

However, what shocked me was this quote attributable to one of Jensen Farm’s owners:

Eric Jensen, the fourth-generation produce grower who runs what’s left of Jensen Farms with his brother Ryan, said the future of the company remains cloudy.

Jensen, 36, attributed the outbreak to “something Mother Nature did.”

“We didn’t have anything to do with it,” he said.

Eric, Mother Nature did not cause this, your farm and an inspection, distribution and retail system run amok caused the 146 illnesses with 36 deaths.  I think you should read the facts found by the FDA and your own testimony before Congressional investigators.  Eric, I would be careful, the statute of limitations in criminal cases last longer than your bankruptcy.  Blaming Mother Nature is not a defense.

There is a lot of Hepatitis A in the news over the last few months.

Thumbnail image for HepatitisLawyer.jpgThe Wilkes County Health Department in the last week administered Hepatitis A vaccinations to 660 people after an employee of a local food establishment was diagnosed with the virus on May 13, said Debbie Nicholson, the department’s director of nursing.  Mrs. Nicholson said the shots were given to people who came to the health department for a special hepatitis A clinic during extended hours May 18 and 19 and later during regular health department hours through this past Friday.

The Tennessean reports that three students from Greenbrier High School have been infected with the Hepatitis A virus in recent weeks, according to the Tennessee Department of Health.  State health officials are offering free vaccines to both students and staff members at the school on Friday, May 5.  The clinic will offer the free vaccines from 10 a.m. until 2 p.m.  Over 300 students and teachers received vaccines.

Hepatitis A has also caused recent scares in Alabama and Indiana.  In May, the Vanderburgh County, Indiana, Health Department and the Indiana State Department of Health investigated a case of Hepatitis A in a food worker at the Lone Star Restaurant located in the Eastland Place Shopping Center at 943 N. Green River Road Evansville IN, 47715-2418. 

In March, The Alabama Department of Health alerted customers of McDonald’s, located at 2000 McFarland Blvd, Northport that they may have been exposed to hepatitis A virus through an infected employee. The health department administered vaccines to hundreds of people who had eaten food from the restaurant during the time that the infected employee worked.   Nearly 1,000 customers received hepatitis A vaccines.

And, in February, the Central District (Idaho) Health Department announced that an employee at the Cheesecake Factory on Milwaukee Avenue in Boise Idaho might have exposed some diners at the restaurant to Hepatitis A between December 13, 2011 and January 22, 2012. 

Screen Shot 2012-05-30 at 8.47.52 PM.pngI have nine seemigly happy heathly chickens in my backyard producing about 60 eggs a week.  Are they Salmonella free?  I guess it is about time to test.

Today, according to the CDC a total of 93 persons infected with outbreak strains of Salmonella Infantis, Salmonella Newport, and Salmonella Lille have been reported from 23 states.

The number of ill persons identified in each state is as follows: Alabama (3), Georgia (3), Illinois (1), Indiana (2), Kentucky (4), Louisiana (1), Massachusetts (1), Maryland (1), Maine (2), Michigan (1), Nebraska (1), New Jersey (1), North Carolina (9), New York (13), Ohio (26), Pennsylvania (9), Rhode Island (1), South Carolina (1), Tennessee (4), Texas (1), Virginia (6), Vermont (1), and West Virginia (1).

18 ill persons have been hospitalized, and one death possibly related to this outbreak is under investigation.

37% of ill persons are children 10 years of age or younger.

Collaborative investigative efforts of local, state, and federal public health and agriculture officials linked this outbreak of human Salmonella infections to exposure to chicks and ducklings from a single mail-order hatchery in Ohio.

Findings of multiple traceback investigations of live chicks and ducklings from homes of ill persons have identified a single mail-order hatchery in Ohio (ANOTHER UNNAMED FACILITY THAT POISONS PEOPLE) as the source of these chicks and ducklings. This is the same mail-order hatchery that was associated with the 2011 outbreak of Salmonella Altona and Salmonella Johannesburg infections.  AND, SO WHY DOES THE CDC NOT NAME THEM?

UPDATE:  Investigations carried out jointly by local, state and federal agencies traced the outbreak to exposure to chicks and ducklings from a single mail-order hatchery in Ohio. The same hatchery – identified last year by the Ohio Department of Agriculture as Mt. Healthy Hatchery – was the source of a similar outbreak around this time last year.  Thanks to Efoodalert.

Hamburger.jpgMSNBC’s JoNel Aleccia reported this morning “Testing for new E. coli strains in beef finally to begin.”

The move implements long-delayed federal regulations aimed at a group of E. coli bacteria collectively known as “the Big Six,” bugs capable of causing severe infection and death.

Under the new rules, the six additional strains of E. coli will be classified as adulterants on par with the better-known E. coli O157:H7, which is often linked to serious illnesses tied to hamburger. The new strains include E. coli O26, O111, O103, O121, O45 and O145.

Beginning Monday, it will be illegal to sell raw beef trimmings and non-intact beef products, such as tenderized steaks, if they’re contaminated with any of the six new strains of E. coli, according to documents from the Food Safety and Inspection Service of the U.S. Department of Agriculture.

The agency indicated it plans in the future to expand routine testing for those strains to additional raw beef products, including ground beef.

Like E. coli O157:H7, the six new strains are capable of producing bloody diarrheal illness that can lead to kidney failure and death. In 2010, for the first time, the non-O157 strains of what are known as Shiga toxin-producing E. coli, or STECs, were responsible for more infections in the U.S. than E. coli O157:H7, according to federal health officials.

The non-O157 STECs caused 451 confirmed infections that year, including 69 people who were hospitalized and one death. E. coli O157:H7 caused 442 infections, 184 hospitalizations and two deaths, according to the Centers for Disease Control and Prevention. Many illnesses are never reported, however, and the agency estimates that non-O157 E. coli strains cause an estimated 113,000 illnesses and 300 hospitalizations a year.

The new testing requirement is a victory for Bill Marler, a Seattle food safety lawyer who petitioned FSIS to have the “Big Six” strains declared adulterants and then threatened to sue the USDA when the agency didn’t respond promptly.

He pointed to the 1994 classification of E. coli O157:H7 as an adulterant as a turning point for food safety in U.S. and said the new rules would have a similar effect.

“(It) dramatically changed the landscape of how safe our meat supply is for the better,” he said. “This is another step in getting this done correctly.”

According to the Center for Infectious Disease Research & Policy (CIDRAP), these six STEC strains account for 80 percent of non-O157 E. coli illnesses infections. The Centers for Disease Control and Prevention estimates non-O157 E. coli strains cause 112,000 illnesses annually, with about 36,700 of those attributed to beef.

food-world.pngFood products now come to the United States from over 250,000 foreign establishments in 200 countries. Indeed, 15 percent of fruits, 20 percent of vegetables, and 80 percent of seafood come from overseas. And, with the consumption of imported foods growing, we have seen an increase in recalls and foodborne illness outbreaks linked to them.

A few days ago two meat processing plants in the United States, Lancaster Frozen Foods and G&W Inc., recalled nearly 7,000 pounds of ground beef after South Carolina state inspectors found that meat they received from an Australian packing plant was contaminated with potentially deadly E. coli O157:H7 bacteria. Fortunately, there appear to be no illnesses linked to the meat – yet.

Then there is the ongoing Salmonella outbreak linked to tempeh made by a North Carolina company, Smiling Hara, which purchased Tempeh Starter Yeast from an online Maryland company, which has issued a recall. As of Thursday, 76 confirmed, 6 probable, and 6 suspected cases have been recorded in five states: 80 in North Carolina, 3 in Georgia, 3 in South Carolina, 1 in Tennessee, and 1 in Michigan. The recalled starter yeast, imported from Indonesia, was distributed by www.indonesianfoodmart.com nationwide and internationally through direct mail order, according to a May 22 company statement that was posted online by the FDA.

Last week, Caribe Produce LTD Co. recalled 286 cases of Papaya Maradol, Caribeña Brand papayas because they might be contaminated with Salmonella. Routine testing by the company revealed the presence of Salmonella in the papayas, according to the recall notice. The company says no illnesses have been reported. The recalled Papaya Maradol, Caribeña Brand cases were distributed in the Bronx, New York in wholesale stores and through retail stores from May 14 to May 17, 2012. The papayas were packed in 35 lb. cartons marked with the brand “Caribeña” and “Product of Mexico” stamped on the side. The papayas are sold individually, and each one bears a label that states “3112 CARIBEÑA Papaya MARADOL PRODUCT OF MEXICO www.grandeproduce.com.”

Last month the CDC reported that a total of 316 individuals infected with the outbreak strains of Salmonella Bareilly or Salmonella Nchanga had been reported from 26 states and the District of Columbia. The outbreak announcement was followed by Moon Marine USA Corporation (also known as MMI) of Cupertino, CA recalling 58,828 lbs. of a frozen raw yellowfin tuna product, labeled as Nakaochi Scrape AA or AAA. Nakaochi Scrape is tuna backmeat, which is specifically scraped from the bones, and looks like a ground product. Moon Fishery (India) Pvt. Ltd., the manufacturer of the Yellow Fin Tuna Nakaochi Scrape, also recalled its 22-pound cases of “Tuna Strips” Product of India AA or AAA GRADE because they had the potential to be contaminated with Salmonella.

But, do not think that it is just food that is imported to the United States that is a problem. Our exports have raised concerns abroad, too.

According to the United States Department of Agriculture Economic Research Service (USDA ERS), the United States exported over $136 billion in agricultural products in 2011, which — compared to the 2001 value of $53 billion — represents a steady increase in exports. Nonetheless, the world has not been shy about denying American exports that demonstrate risk.

Spinach: In late 2006 an E. coli O157:H7 outbreak linked to Dole bagged spinach led to 205 illnesses, 103 hospitalizations, and 2 deaths. The outbreak spanned 49 states and Canada and took a huge economic toll on the spinach and leafy greens industry due to consumer uncertainty inside and outside U.S. borders. During the outbreak Mexico placed a ban on all California lettuce imports.

Peanut Butter: In 2007, the Centers for Disease Control and Prevention (CDC) and Food and Drug Administration (FDA) announced that there had been 628 confirmed cases of Salmonella infection in 41 states from August 2006 through May 2007. Although the outbreak slowed, cases continued to be confirmed after this time period. The cases were linked to the consumption of Peter Pan and Great Value brand peanut butter manufactured in ConAgra’s Georgia peanut butter plant. The product was recalled worldwide and countries like China banned the brands.

Mad Cow Disease: Since 2003, the United States has confirmed a total of 4 cases of bovine spongiform encephalopathy (mad cow disease) in cows, including an April 23, 2012 case linked to a California dairy cow. Over 65 countries have banned or limited U.S. beef sales in response to these events. Notably, Japan and South Korea, the first and third largest importers of U.S. beef in 2003, banned U.S. beef. Though Japan and South Korea had essentially lifted the bans by 2009, both countries continue to place restrictions on specific higher risk products. Following the 2012 case, Indonesia banned U.S. beef and some major Korean retailers halted the sale of U.S. beef. Since the initial mad cow case, the beef industry has taken a significant economic hit. In 2002 the U.S. exported 2.447 billion pounds of beef, but by 2004 the number of pounds exported had dropped to just 460 million. Only in 2011 did beef exports return to 2002 levels. And then we found another mad cow in 2012.

Food safety is “farm to fork” and around the world. We all – producers, shippers, importers, exporters, retailers and consumers – need to pay attention to the whole supply chain, even if it stretches around the globe. Ultimately food safety is both good for public health and good for business.

Korean War veteran Clifford Tousignant served the United States of America for 22 years, earning three purple hearts along the way. In 2009, he died from eating Salmonella contaminated peanut butter.

Mr. Tousignant was one of nine people who died and 714 who were sickened in a 2008/2009 Salmonella outbreak linked to Peanut Corporation of America (PCA). The outbreak affected almost every state in the nation and cost the peanut industry over one billion dollars.

PCA Peanut Butter Salmonella Outbreak Victim: Cliff Tousignant from Marlerclark on Vimeo.

Mr. Tousignant is still dead and Stewart Parnell, president of PCA, is still not in jail.

Memorial Day, originally called Decoration Day, is a day of remembrance for those who have died in our nation’s service. Paul Schwarz likely should have died during his service of his country, but he survived and became a father, grandfather, great-grandfather and a productive member of our country. In all respects he was an American hero. We repaid Paul and his family by having “the safest food supply in the world.” On this Memorial Day we should all be ashamed.

Paul Schwarz served in the Army in New Guinea and the Philippines during WWII. He was awarded two Purple Hearts. Paul met Rosellen in a Catholic church in Kansas City when she was 18 and he not much older. They married soon after and then Paul was called to war. Rosellen would not see him for approximately two years. Like many veterans, Paul was reticent about his service, but remained deeply attached to those with whom he served. During their many years together Paul and Rosellen attended many reunions with Paul’s Army unit.

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Paul mans a .50 caliber machine gun while serving in the Pacific during WWII

After the war, Paul worked for a printing company, a bakery, and then as an agent for Metropolitan Life Insurance Company beginning in 1956. He retired in 1981 at age 63. Rosellen and Paul had five children: Jim, Janice, Paul, Mary Pat and Greg. He and Rosellen lived in the same house for almost six decades. Rosellen continues to live there today. When he died, Paul left nine grandchildren and ten great-grandchildren. He delighted in his extended family and looked forward to large holiday gatherings. Paul had a larger than life personality. He was loud, funny, and gregarious. He was a sportsman who loved to golf. He carded two holes in one and followed a wide variety of sports. He was a huge baseball fan and often watched both the Kansas City and St. Louis teams; he would regularly drive to St. Louis to watch the Cardinals.

Paul and Rosellen traveled throughout the country, almost always by car, after Paul’s retirement. Between travel, family, and sports, Paul was rarely still. He enjoyed good health and even in his last year, had to be admonished to use his cane inside of the house because he had little trouble walking. Paul and Rosellen’s marriage lasted 68 extraordinary years.

Rosellen suffers from early Alzheimer’s disease and Paul was her rock, caregiver, and constant companion. For Rosellen, Paul’s death has left her with an aching loneliness despite the large family that now cares for her. She still lives in the family house under the care of a niece and the support of her grandchildren, but she will have to move to an assisted living facility soon.

Paul A. Schwarz, Jr. was 92 years old in the fall of 2011, when he fell ill after eating cantaloupe contaminated by Listeria monocytogenes. After a month in the hospital and two more months in a rehabilitation center, the Listeria infection finally killed Paul.

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Paul was laid to rest with full military honors

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Rosellen receives the Flag at Fort Leavenworth National Cemetery

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Rest in peace Mr. Schwarz – Section 51 Row 1 Grave 3

My father died in January. He served in the Korean War, and was perhaps not technically a hero – except to me. His passing, and the time I spent with him in the days before his death, has given me a far greater appreciation for what many of my clients and their family’s experience. Death is painful, it is hard to watch, it makes you cry and it is humbling. My dad’s death was all of those, but it was natural and inevitable. Paul Schwarz’s death was not natural, it was not inevitable, and it came before its time because our food supply is in fact not “the safest in the world.”

bankruptcya.jpgToday, Jensen Farms filed for Bankruptcy in Federal Court in Denver.

As I said to the Denver Post:

Victims’ attorney Bill Marler of Marler Clark in Seattle still hopes to bring Frontera, the auditors and retailers into a pool administered by the courts….

“For me, the bottom line is this is step one of a process making sure all these people receive fair compensation,” Marler said.

146 people sickened with 36 dead.

Screen Shot 2012-05-24 at 4.07.15 PM.pngBill Marler has been litigating foodborne illness cases for nearly two decades. The key to his success has been to find a quick, reliable method of distinguishing between legitimate food poisoning claims and suspect ones. In his experience, the food industry—from farmer to retailer to restaurant—tends to overemphasize the specious claim and undervalue the legitimate claim. It is an unfortunate situation that increases the likelihood that the industry will miss important opportunities to improve food safety.

By failing to improve food safety, the industry runs the risk of actually poisoning consumers and attracting expensive litigation that often results in public relations nightmares. Marler’s goal has been to bring forth only legitimate claims that have caused substantial personal damages and to force the food industry to think about the real costs of failing to ensure food safety.

Using case studies, this webinar will provide an overview of the various methods of proving a foodborne illness claim. The webinar will go over the obstacles companies face in prioritizing food safety. It will describe the legal basis of Strict Liability as well as the steps used to determine if a foodborne illness case fits into that legal definition. The important roles of epidemiology and Public Health and corporate and restaurant food safety will be covered. The webinar will also address what a food producer should do in an outbreak situation.

Who will benefit from this webinar:

  • All professionals in the food supply chain
  • Educators and students concerned about food safety
  • Educators and students interested in the law
  • Government regulators
  • Plantiff attorneys and defense attorneys

Presenter–William Marler, Managing Partner Marler Clark, The Food Safety Law Firm

William Marler began litigating food borne illness cases in 1993 by representing the seriously injured survivors of the landmark Jack in the Box E. coli O157:H7 outbreak. Since then, he has represented victims of every large foodborne illness outbreak in the United States and has secured over 600 million dollars for his clients in cases against food companies whose contaminated products have caused serious injury and death.

Bill Marler is a Technical Advisor to the National Environmental Health Association and, in 2010, was awarded the NSF Food Safety Leadership Award for Education. He has been repeatedly voted into Best Lawyers in America, has received the Public Justice Award from the Washington State Trial Lawyers Association and has been in the Bar Register of Preeminent Attorneys annually since 2002.

Marler is the publisher of the highly regarded online newspaper, Food Safety News. Additionally he maintains over 25 blogs and websites dedicated to the food safety and foodborne illness education, including his award-winning Marler Blog, which is read by over 1,000,000 people around the world each year.

Today, his firm, Marler Clark, The Food Safety Law Firm, is recognized as the nation’s leading law firm representing victims of foodborne illness, and Mr. Marler is considered a major force in food safety policy in the United States. His advocacy for better food regulation has led to invitations to address local, national, and international gatherings on food safety including testimony to the United States Congress Committee on Energy and Commerce.

Screen Shot 2012-05-23 at 6.45.33 PM.png UPDATE – A salmonellosis outbreak linked to tempeh sold by an Asheville, N.C., company has grown by 5 cases, to 88, after a Rockville, Md., company issued a recall for imported “Tempeh Starter Yeast.” David Sweat, MPH, foodborne disease epidemiologist with the North Carolina Division of Public Health in Raleigh, told CIDRAP News today that, as of yesterday, his agency had recorded 76 confirmed, 6 probable, and 6 suspected cases in five states: 80 in North Carolina, 3 in Georgia, 3 in South Carolina, 1 in Tennessee, and 1 in Michigan. But all case-patients “were exposed in Asheville, N.C., as far as we can tell,” he said. The most recent illness-onset date was May 8, he said. The recalled starter yeast, imported from Indonesia, was distributed by Indonesianfoodmart.com nationwide and internationally through direct mail order, according to a May 22 company statement that was posted online by the FDA. The product comes in sealed, clear plastic packages in 30-, 50-, 250-, and 1,000-gram sizes, and the company has ceased distributing it. The North Carolina Department of Agriculture and Consumer Services found Salmonella in some of the product, the company statement said.

www.indonesianfoodmart.com of Rockville, MD, is recalling all packages of “Tempeh Starter Yeast” because they have the potential to be contaminated with Salmonella, 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 often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella 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 recalled ” Tempeh Starter Yeast “and “Super Starter Yeast” were distributed nationwide and internationally through direct mail orders. The product was also distributed to the following areas: Australia, Canada, Slovenia, New Zealand, Brunei, Darussalam, Poland and Croatia.

The product comes in sealed, clear plastic packages marked with a small computer printed label. The following sizes were sold: 30gm, 50gm, 250 gm, and 1000 gm

Several illnesses have been reported to date that may be in connection with this problem.

The potential for contamination was noted after testing by the North Carolina Department of Agriculture and Consumer Services revealed the presence of Salmonella in some of the product

Upon being notified of the risk by the FDA, the Indonesianfoodmart.com immediately discontinued their operations. Indonesianfoodmart.com did not manufacture the product which was imported from Indonesia.

The product should not be used. Consumers may securely wrap and return the product to the above address or discard it in a waste receptacle.