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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Will E. coli Lightning Strike Twice for Applebee’s Steaks?

In September 2004, Quantum Foods, a beef processor based in Illinois, voluntarily recalled 406,000 pounds of hamburger patties and steak after public health officials linked the meat to four E. coil illnesses among customers of Applebee’s Neighborhood Grill & Bar locations in Colorado. The recalled products were produced June 23 and 24 and distributed nationwide to restaurants, military institutions and retail stores (where it went will sound similar soon)

According to the U.S. Department of Agriculture’s Food Safety and Inspection Service, Applebee’s purchased about 80,000 pounds of the suspect meat from Quantum Foods. Overland Park, Kansas-based Applebee’s International Inc. said investigations by the company and federal officials and the Colorado Department of Public Health had found no more E. coli cases linked to the 1,629-unit chain.

Also in 2004 we sued Applebee’s on behalf of Sloan Ross, a 19-year-old Lakewood, Colorado resident who contracted an E. coli infection after eating a tri-tip steak at an Applebee’s restaurant in Lakewood. The lawsuit was filed in Jefferson County District Court.

On Christmas Eve (two days ago) the Food Safety and Inspection Service (FSIS) issued a recall of 248,000 pounds of “beef products” from Oklahoma-base National Steak and Poultry. The recall also came with this warning:

FSIS became aware of the problem during the course of an investigation of a cluster of E. coli O157:H7 illnesses. Working with the Centers for Disease Control and Prevention (CDC) and state health and agriculture departments, FSIS determined that there is an association between non-intact steaks (blade tenderized prior to further processing) and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington…. Each package bears a label with the establishment number “EST. 6010T” inside the USDA mark of inspection, respective case codes cited above, and packaging dates of “10/12/2009,” “10/13/2009,” “10/14/2009,” or “10/21/2009.” These products were shipped to restaurants nationwide.

Thus far, FSIS, CDC, State Health and Agriculture Departments and the locations where the steaks were sold have been silent as to where the recalled product was sold – grocery stores or restaurants, and if so, which ones? Interestingly, in a 2004 Tulsa World News article, the following were listed as customers of National Steak and Poultry:

Applebee’s International Inc., Tulsa-based Camille’s Sidewalk Cafe, Don Pablo’s Mexican Kitchen, Taco Bueno Restaurants, Ihop Corp. and Wal-Mart Stores Inc. NSP’s steady growth during the past few years came partially from diversification into new industries, [David] Albright said, particularly retail grocery stores such as Wal-Mart and contracts with branches of the military.

Since no one is officially talking, the 2004 customer list might look a bit different today, but we simply do not know – But, we should.  As I said earlier:

… consumers have no information as to what states the tainted steaks were shipped or what retail outlets or restaurants received it. National Steak and Poultry has this information at its fingertips, FSIS should have access to it as well, and it is unconscionable that they have not made it available to the public, …

This recall is the tenth so far in 2009. The FSIS policy of identifying retailers that received recalled products continues to appear to be getting a hit-or-miss application. At times, retailers and restaurants are identified on the same day as a recall, and on others, not at all.

We know where we shop or where we had a steak. If we or restaurants are told where the contaminated steaks that has been recalled were sold, someone could go right to the freezer to see if there is any of the product, …

Someone should step up. Perhaps lightening does not strike twice, but it would be nice to let your customers know if it did or did not.  Last time, Applebee’s was a bit pissed about being sued:

Applebee’s said it had not contacted the four customers who fell ill. "Not surprisingly in today’s litigious society an out-of-state trial lawyer has already filed a lawsuit. We don’t believe a complicated legal process is the best way to resolve any guest concern," the company said.

One way to "resolve any guest concerns" would be to offer to pay for the medical bills of the customer BEFORE you get sued (Applebee’s did not do it last time).  Let’s see what the restaurants do this time.