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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

E. coli attorney, truckers on same side in food safety debate

Clarissa Kell-Holland, staff writer for Land Line Magazine and I spoke this week:

What do E. coli attorney Bill Marler and the Owner-Operator Independent Drivers Association have in common in the ongoing debate over food safety?

After last September’s E. coli outbreak traced back to California bagged spinach, Marler and OOIDA both came to the same conclusion – that the federal food safety system must be overhauled to prevent future food-related outbreaks.

Marler is currently represents 93 consumers who were sickened or died after eating E. coli-contaminated bagged spinach, and OOIDA became involved in the debate after several of its members were left “holding the bag” when pallets of contaminated spinach were left on their trucks.

Marler and OOIDA have both testified on the need for federal mandatory recall authority be given to the U.S. Food and Drug Administration, which currently counts on companies to “do the right thing” if problems are reported with their product.

Both agree the produce industry should not be allowed to regulate itself and have been following the ongoing investigation into the E. coli outbreak closely.

After more than 200 were sickened and three died after eating bagged spinach, federal investigators were called in and searched farms in three counties and two factories in California, including plants run by Growers Express LLC in Salinas and Natural Selections LLC in San Juan Bautista.

So when the announcement was made last week that the U.S. Attorney’s office in San Francisco was not pursuing criminal charges against growers and processors involved in last fall’s nationwide E. coli outbreak, and that investigators did not find that growers and processors “had deliberately skirted the law or were negligent in preventing tainted food from entering the marketplace,” neither Marler nor OOIDA Regulatory Affairs Specialist Joe Rajkovacz were surprised.

“In 14 years of doing these types of cases I really can count on one hand how many times a food company has ever been subjected to any sort of criminal sanction – it just never happens,” Marler said. “That’s not to say that it shouldn’t happen – it just doesn’t.”


Rajkovacz agreed.

“I can’t believe it’s so difficult for the produce industry and the government to just do the right thing,” said Rajkovacz, who testified in April at an FDA hearing on the safety of fresh produce in College Park, MD.

Since criminal charges are rarely filed against companies involved in foodborne outbreaks, Marler and his Seattle-based firm, MarlerClark, have spent the past 14 years helping victims affected by these food-borne outbreaks.

“Often times, what the feds do is leave it up to the civil justice system, i.e. me, to do the work for them,” he said.

He has already settled 29 of the 93 cases his firm is handling related to the September 2006 outbreak linked to California spinach.

Marler said his answer to solving the food safety crisis in this country is to enforce criminal sanctions against those who grow or sell contaminated products.

“I had an epidemiologist ask me once what solution I had to solve the food safety issue in this country, and I said, ‘criminalize it,’ ” he said. “If you criminalize food safety in the sense that if you, in fact, sold a product that was contaminated and you criminalized it – even if it was not a conscious act, it was more of a gross negligence act – you would see a difference.

“We charge people for vehicular manslaughter for listening to their iPod while they are driving and they run off the road and kill a kid on a bicycle, but yet, when a corporation ships a product all over the U.S. and poisons hundreds and kills three people – we don’t do anything.”

He said the most frustrating part of his job is that even though he compensates people who have been victims of food-borne illnesses, there is still the bigger picture to think about.

“Most of my clients are more concerned about this never happening to some other family,” Marler said.

Rajkovacz said OOIDA would like to see federal regulations put in place to protect truckers from being the “dumping ground of choice” when contaminated product is recalled, which is what happened during last September’s E.coli outbreak.

In his comments to the FDA, Rajkovacz said, “the subsequent voluntary recall left many small business produce truckers with the financial responsibility to find dumping facilities for rejected product. It is a common industry practice to evade financial responsibility by leaving truckers holding the bag when dealing with recalled or rejected product. We are their dumping ground.”

At the FDA hearing, Rajkovacz testified that the agency’s lack of mandatory recall authority must be addressed or “rejected, rotted and contaminated produce” will continue to enter the food supply chain because shippers are not required to accept the potentially product back when an outbreak occurs.

“It is hard to imagine a solution to fresh produce safety without intervention at the highest level of government,” he said.

Marler and OOIDA both agree that voluntary guidelines such as those outlined in the California Leafy Green Marketing Agreement are not enough to ensure consumer safety and prevent future outbreaks.

“We have seen it before with all of the recent outbreaks – voluntary compliance does not work. Mandatory regulation at a higher standard is needed,” Marler said.