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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Daniel in the lion’s den or the fox in the hen house?

By Ross Anderson (former Seattle Times reporter) for King County Bar News

When Wyoming public health workers convened at a Cody meeting room recently, they spent much of three days listening to various authorities bring them up to date on issues from prenatal care to septic tanks to bioterrorism. But the keynote address did not come from a physician; it was delivered by a lawyer.

“Chasing ambulances is only part of what I do,” Bill Marler told them, drawing a ripple of chuckles across the room of about 125 people. “I represent people who are some of the most vulnerable in our society — kids who face a lifetime of kidney damage and possible transplants, all because they ate an undercooked hamburger.”

And he wanted his audience to know that he and public health officials are, or should be, on the same side of those issues.

Marler and his Seattle firm, Marler Clark LLP, specializes in representing people sickened by food-borne illness — excruciating and sometimes fatal disorders caused by toxins such as E. coli O157:H7, Salmonella and hepatitis A. In the past decade, the firm has won more than $300 million in judgments and settlements from corporate giants across the United States.

And yet as Marler travels the country for his clients, he makes frequent stops at hotel meeting rooms to talk — at no charge — to public health departments and environmental health associations, and to trade groups for the restaurant, supermarket, and meat-processing industries.

His basic message: Make my day. Take the logical, common sense precautions, and this society can virtually eliminate food-borne illness, and therefore the lawyers who are associated with it. Put me out of business, please.

It is an unexpected message, coming from an unusual lawyer.

A Washington native, Marler studied at Washington State University and the Seattle University Law School. “I hated law school,” he told his Wyoming audience. “It weeds the wrong people out of the profession. It almost weeded me out.”

As a 19-year-old student at WSU, he discovered his penchant for politics, running successfully for the Pullman City Council in 1977. That experience provided an early lesson — that law and politics are inseparable, that one can’t succeed in one without at least understanding, and preferably indulging in, the other.

After several years of trial work in Seattle, Marler’s big break came in 1993 when the San Diego-based Jack in the Box chain was caught up in an outbreak of E. coli O157:H7, the notorious toxin that travels in the intestines of certain animals — especially cows. Marler represented several children, including Brianne Kiner, the Seattle girl who was one of those most-critically sickened and who became the poster child of the outbreak.

The lawyer tracked down evidence that Jack in the Box was undercooking its hamburgers, despite suggestions from its own employees to cook them more thoroughly. Ultimately, he won a staggering $15.6 million settlement for Brianne.

Marler was on his way. He moved his wife, Julie and daughters, Morgan, Olivia and Sydney into a waterfront home on Bainbridge Island. He indulged his taste for a good Cuban cigar and single-malt scotch. He set up his own firm in the Bank of America Tower along with former Jack in the Box attorneys Bruce Clark and Denis Stearns. He took on one corporate food chain after another — Costco, Kentucky Fried Chicken, McDonalds, Sizzler, Hardees, Wendy’s — winning seven and eight-digit settlements and verdicts for his young clients.

But Marler decided early that he would rather succeed without having to see “five-year-old kids hooked up to kidney dialysis machines, dying slow and painful deaths — just because Mom bought them a hamburger.”

“It didn’t make sense. Somebody has to make these companies accountable for the food they serve to innocent people.”

When necessary, Marler found he could apply pressure by working with the media. “But it wasn’t fast enough. There were still too many kids getting sick.”

So he founded Outbreak Inc, a not for profit housed in the Marler’s law offices, which provides resources to health workers and companies that want to train their employees on how to avoid E. coli and other food borne illness. Marler estimates that he has spoken to groups of public health officials in 20 States, from New York to Florida and California, and that he has spoken at as many as 50 food-industry meetings. He was the recent key-note speaker at a national CDC conference.

At the same time, he became a major contributor — in time and money — to an advocacy group called Safe Tables Our Priority, or STOP.

He has become a powerful voice in State and national politics, raising money for former Washington Gov. Gary Locke and holding fundraisers for a wide range of state and national candidates. He even considered running for Congress and Senate himself. But eventually figured he could be more effective as a lawyer than as a politician.

His speaking engagements around the country serve multiple purposes, Marler says. Each meeting with public health officials helps foster cooperation with the health bureaucracy, cooperation that may eventually pay off when he needs inspection reports or other documents to make a case for his clients. He makes potentially helpful contacts with people who may later help his clients.
But it is mostly about preventing children from getting sick, he says.

“Health department personnel and environmental health professionals are unclear about how what they do fits with what I do,” he says. “They worry about being sued for something they do, or for something they don’t do. And I try to dispel that fear.”

At the Wyoming meeting, he carefully explained legal concepts such as “strict liability,” “negligence” and “punitive damages” — all terms that apply to restaurants and other legal manufacturers of food products. Personal injury lawyers come to health departments for information to use against manufacturers, not health departments, he said.

The bottom line, he told his Wyoming audience (the day after also indulging his passion for fly-fishing), is this: “You have virtually zero chance of being sued for your inspections. So do your job and do it well. Your clientele includes the food service industry — and its customers. And they need to understand food borne illness. So educate, educate, educate.”

Health officials are usually more responsive to his message than the food industry, Marler says. “Some people don’t want to hear what I have to say. When I meet with them they don’t know if I’m Daniel in the Lions Den, or the Fox in the Henhouse.”

But Marler continues to seek out opportunities to advise companies how to keep him from suing them.
“I want to be feared by my opponents, but I also want to be respected” Marler says. “I believe that doing what I do, and doing it well, has influenced the food industry. And I hope that means fewer kids are getting sick.”

Since the series of costly and highly-publicized outbreaks in the 1990s, there has been a marked decline in the incidence of E. coli O157:H7, he says. The last major outbreak involving ground beef was in 2002.

“I don’t take all the credit for that, but I have to guess that taking $200 million from the food industry, and going out and talking to these trade groups, has raised awareness in these companies.”

So is he putting himself out of business? To visit his 66th floor Seattle office, you might think so. On a typical day, Marler and his colleagues are likely to be found working in shorts and T-shirts, or eating take-out sandwiches at a conference table with a fire crackling on the built-in TV screen.

But unfortunately there has been no shortage of food borne illness cases. Marler still has his hands full with outbreaks of Salmonella, Listeria, hepatitis A and other foodborne pathogens. He travels nearly weekly back and forth across the country “spreading the word and litigating where necessary.”

“E. coli used to be the majority of our business, but these other bugs have filled the gap pretty well,” he says.