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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

You have to love the timing

So, yesterday I was at the CDC/USDA/FSIS/FDA sponsored meeting on whether non-E. coli O157:H7 shiga toxins should be considered an adulterant in food and had the opportunity to talk briefly with Dr. Raymond of FSIS about the status of the Topps investigation specifically, and the meat industry in general.  I do love my job.  Sometimes I am not quite sure what bloggger Jane Genova means, but I do love my job.

The below letter must have arrived at his office about the same time I sued Topps (again).  From the Ithaca, New York Paper:

“We are asking for punitive damages because had the company acted responsibly and recalled its products the day they discovered the E. coli contamination, Kristin and her son’s infections could have been prevented,” said attorney William Marler, managing partner of Marler Clark. “It was poor judgment on the part of Topps, and although Topps paid for this mistake by going out of business, consumers like the Goodwins paid with their health.”

Senator Durbin below outlines quite well many of the issues in the case and ones I tend to explore inside of a courtroom with Topps and USDA officials under oath. I hope Senator Durbin, and other members of congress, follow up on these issues and other food safety challenges facing our country.

October 17, 2007

Dr. Richard Raymond
Under Secretary
Food Safety Inspection Service
U.S. Department of Agriculture
1400 Independence Ave., SW
Washington, DC 20250

Dear Dr. Raymond:

I am writing in response to the recent string of recalls of ground beef contaminated with E. coli O157:H7 bacteria. The safety of our nations food is dependent on the commitment and diligence of food manufacturers, combined with the insistent oversight of food safety inspectors. Any lapses must beswiftly addressed. We must not accept the status quo when it comes to foodborne illnesses.

It is alarming that, following several years of reductions in the number of cases of E. coli infections, we are now witnessing a sharp rise in both the number of incidents requiring a recall and the number people infected by this harmful bacteria. In 2007 alone, there have been 16 separate and independent recalls of ground beef due to E. coli, resulting in dozens of cases of significant foodborne illnesses and more than 28 million pounds of product being removed from the stream of commerce. This spike warrants additional attention.

See full text of letter below:

My concerns with these recent developments are manifold. In the case of the Topps beef recall, it appears that an entire years worth of supply was contaminated, yet the USDA FSIS inspectors assigned to serve at that facility on a daily basis failed to detect the E. coli adulterant. In
addition, once USDA FSIS became aware of cases of foodborne illnesses, it took more than 10 days for the agency to announce a recall. The PFGE gel test alone, conducted by labs to detect the presence of E. coli, took seven days.

I believe that these recalls require immediate attention, and I appreciate hearing that you have already directed the agency to study these instances with the goal of taking action to correct deficiencies. In addition, I ask that you address the following questions:

1) Please provide a detailed timeline of the Topps recall, including but not limited to consumer complaints, inspector actions, product testing, and effectiveness checks.

2) Please provide all reports, follow-up inspections and correspondence with Topps officials from 2000 to the present.

3) When did Topps discover that there was a possible E. coli illness linked to its products? Once it realized the link, what actions did it take?

4) How and when did the CDC establish that the first reported case in the Topps outbreak began on July 5?

5) Did Topps seek advice or guidance related to a recall from USDA FSIS at any point between August 31, 2007, when an illness was first reported and September 7, 2007, when USDA first reported out a positive test?

6) Did USDA FSIS ever suggest to Topps that a recall wasnt necessary? If so, why?

7) Why did in-plant inspectors fail to recognize the E. coli hazard in Topps ground beef production? Did Topps have a HACCP plan in place that addressed the risks associated with E. coli?

8) What was the date of the last full USDA inspection report on the Topps plant and what did it find?

9) How many tests for E. coli were conducted by USDA inspectors at the Topps plant over the past five years and what were the results of these tests?

10) Did Topps co-mingle multiple days of ground beef production? If so, how did USDA FSIS become aware of this practice? Were inspectors aware of this practice prior to the recall? Do any current USDA FSIS regulations prohibit this practice?

11) Approximately how much time each day was an inspector present at the Topps facility? Over the past 12 months, did inspectors pursue enforcement actions or file reports about problems with Topps production? Did inspectors follow up on any recommendations that were made?

12) How long had the USDA inspectors assigned to the Topps facility been inspecting that facility at the time of the recall? How long had they been working as USDA inspectors?

13) How many follow-up effectiveness checks have been performed by USDA FSIS employees during this recall? What was the success rate of the effectiveness checks? What was the recall rate?

14) What follow-up actions have been performed by USDA employees with Topps suppliers to ensure that the source of the adulteration is not continuing to enter into the stream of commerce? What are USDA FSIS policies with regard to post-recall actions to check suppliers?

15) How many inspectors are employed by USDA FSIS? How many establishments have daily inspection? How many posts are currently vacant? What is USDA FSISs annual budget? Please provide this data for the current year as well as each of the previous ten years.

16) When is the last time that USDA FSIS updated its E. coli performance criteria and testing standards?

Thank you for your attention to this matter. I ask that you provide a response within 20 days. If you have any questions, please contact David Lazarus of my staff at (202) 224-2152.


Richard J. Durbin
United States Senator

  • Kelly Klassen

    Yeah I got a comment: Who do I talk to about this? I ate some of those potpies and now I’m sick. I called thier number and talked with someone who said that one of their specialist would contact me. That was 5 days ago. I still have two of those potpies in my freezer due to thinking they might want them for testing or something. But no specialist has called.

  • Omaha Dog

    Yea, you should contact your local city, county, or state department of health!

  • Fanatic Cook keep track of sponsors of Safe Food Act 2007

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  • Don Apking

    I read the letter by Senator Durbin and agree on the importance of food safety. The priority of the government agencies should be to agressively pursue all avenues of availble technology to address the problem at the point of origin. An emerging technology developed by ICA Tri Nova in Newnan, GA addresses the food safety issue on both the meat and vegetable areas. The problem is that the government agencies and political venues spend to much time discussing the problem and not exploring what solutions are available.