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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

1 Shot – 2 Weeks

Vaccine-injectionWhat we know about the Tropical Smoothie Cafe Hepatitis A outbreak:

  • Once a person consumes human fecal matter containing the Hepatitis A virus, they have two weeks to receive treatment (one shot) or they are likely to suffer from an acute Hepatitis A infection.
  • During the last week and a half of July and the first few days of August, hundreds or thousands of Tropical Smoothie Cafe customers consumed smoothies — some containing strawberries.
  • With Hepatitis A illnesses dating back into May, the Virginia Department of Health informed Tropical Smoothie on Aug. 4 that it was likely linked to Hepatitis A illnesses apparently caused by Egyptian strawberries.
  • Tropical Smoothie recalled strawberries from its locations between Aug. 4 and Aug. 8, replacing them with strawberries sourced from the U.S. and Mexico.
  • On Aug. 19, the Virginia Department of Health and Tropical Smoothie decided to inform the public of the link between Hepatitis A illnesses and Tropical Smoothies containing Egyptian strawberries.
  • For the people who consumed strawberry smoothies the last week and a half of July and the first few days of August, it was too late to seek treatment to prevent an acute Hepatitis A infection.

Thanks to the Charlottesville Daily Progress, I do not have to write an Op-ed this week:

Recently we questioned why the Virginia Department of Health has not listed the restaurants suspected of serving products contaminated by tainted strawberries.

There is more reason to question the department than we initially supposed.

Some 55 people in Virginia have come down with Hepatitis A, a serious illness believed to have been contracted at Tropical Smoothie Cafés. Another 11 have been infected elsewhere.

Virginia’s health department will cite only the geographic regions in which the suspected restaurants are located.

Initially, while calling for transparency, we also cut the health department some slack, speculating that it did not want customers to be lulled into a false sense of security by considering themselves in the clear if the restaurant at which they dined did not appear on the list of names. It can take 50 days for symptoms of Hepatitis A to surface, so it’s important for customers to remain alert to possible symptoms.

However, the flip side is that customers may be unnecessarily subjected to fear and anxiety, and individual restaurants to suspicion, by the department’s decision to reveal nothing more than broad information.

Now a lawyer has raised an additional concern.

A bit of disclosure here: The lawyer is among a group of attorneys who have been in contact with victims and potential victims who might eventually file lawsuits. Attorneys may have a vested interest in fanning the flames of outrage, at least against the restaurant chain.

One complaint is that Tropical Smoothie franchises took up to four days to remove all of the suspected strawberries.

But by some accounts, this is an admirable record — much faster than recalls in many other cases, according to the health department.

The department’s actions, though, also raise concerns.

A health department official confirms that the agency did not notify the public until two weeks after it had notified Tropical Smoothie of the suspected hepatitis A contamination.

That’s two weeks lost during which customers could protected themselves.

“It’s a process of conducting an outbreak investigation,” explained Diane Woolard, director of the Department of Health’s Division of Surveillance and Investigation, “and there are a lot of steps involved that are all happening at once.”

She also said that — although the health department had notified Tropical Smoothie, and the chain had begun pulling the suspected strawberries — the department still wasn’t certain of the source of the hepatitis outbreak.

But attorney William D. Marler says that two-week gap was critical.

In the first couple of weeks after eating tainted food, people can stave off infection by getting a vaccine. That option was lost when the public was not warned about the possible danger.

And that means some victims contracted a serious disease who might otherwise have been forewarned and given the chance to protect themselves.

Mr. Marler says he’s going to “get to the bottom of this.”

We hope someone does.