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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

AP Profile – Listeria outbreak draws Seattle lawyer to battle

800_listeria_outbreak_seattle_lawyer_ap_111010.jpgBill Marler updates his many blogs each day about the latest foodborne illness outbreak and travels the world delivering speeches, imploring the food industry to improve its safety measures. All this while working the phones to get money for the victims.

Like it or not, the personal injury attorney behind most every lawsuit associated with foodborne outbreaks is also known away from the courtroom as one of the nation’s leading food safety advocates. He’s always raising red flags about what he considers lax industry testing or inadequate government oversight.

Marler created a niche for himself since winning his first settlement in 1993 – $15.6 million for a girl sickened by E. coli from a Jack in the Box hamburger. He’s in the forefront again thanks to a listeria outbreak in cantaloupe that has sickened more than 100 people and killed at least 21.

His firm already has filed six lawsuits against Colorado grower Jensen Farms, where federal health authorities say the listeria outbreak originated, and a distributor. While Jensen recalled more than 300,000 cases of cantaloupe, neither the U.S. Centers for Disease Control and Prevention nor the Food and Drug Administration have determined the source of the outbreak.

Critics contend his advocacy work isn’t based on the best available science and mainly serves to benefit his law firm. Colleagues call him a dedicated attorney who advocates for his clients and knows the subject matter as well or better than anyone else.

“A lot of people who don’t know me very well see the workaholic, always traveling, the persona, but what I’ve tried to do with my job is to make it more of a vocation,” he said. “I love what I do, and I believe in what I do.”

His clients lavish praise on him.

Linda Rivera, 59, was hospitalized for two years after getting ill from E. coli in cookie dough. Her husband, Richard, said he had a list of three attorneys to call, and when the first two heard Marler was also on the list, they deferred.

“These people gave up cases, money, because they knew he was the best,” he said. “It wasn’t about money. Bill gave me peace of mind to know I can take care of Linda. He’s definitely leaving a legacy and having an impact on food safety.”

In his downtown Seattle offices overlooking Puget Sound, employees wear jeans to work and on this day Marler is casual in khakis and tennis shoes. The walls are lined with framed newspaper clippings and magazine articles depicting his victories, along with framed copies of checks from those cases.

Marler says his firm has won settlements totaling more than $600 million from some of the food industry’s biggest players: Cargill, Wal-Mart, Dole.

But it hasn’t all been smooth sailing.

Miffed about being denied a partnership just short of four years into his tenure at a Seattle firm and feeling unappreciated in the midst of the Jack in the Box case, Marler packed up his office on a Sunday evening and left a resignation letter on the founding partner’s chair. His coworkers’ were stunned on Monday to find his office empty.

Now 54, he says he’s gotten smarter, though no less preoccupied with work. He donated the money for the bar bill at his last high school reunion, then forgot to attend. He said he makes a concerted effort to carve out time for his wife and three teenage daughters.

Rosemary Mucklow, director emeritus of the National Meat Association, said plenty of people in the meat industry don’t like his lawsuit “happy” ways, but that Marler is always willing to try to find common ground. Several years ago, an apoplectic member called her to get Marler’s publicity machine toned down, and Marler agreed to remove a photo from his web site.

“Happy to comply,” Mucklow recalled Marler saying. “I’ve always remembered what he said. That’s the difference with him and a lot of the lawyers I’ve done business with.”

Alan Maxwell, an Atlanta-based attorney who has defended companies against Marler in a number of foodborne illness cases, said his clients don’t always agree with Marler’s public relations outreach, but most generally respect him and find him to be fair.

“The fact is Bill knows the subject matter as well as or better than any lawyer, not to mention many scientists in food safety,” Maxwell said.

Two years ago, Marler petitioned the federal government to ban strains of E. coli that can cause illnesses equally as serious as the most virulent strain, O157:H7. As a result of those efforts, the U.S. Department of Agriculture recently announced plans to begin testing for the strains in beef trimmings, beginning next year, despite industry opposition.

He considers it one of his greatest professional successes, along with a decision by Odwalla, another defendant, to begin pasteurizing its juices following a 1996 E. coli outbreak.

But regulators shouldn’t be applying a blanket ban to E. coli strains, argues Michael Doyle, director of the University of Georgia’s Center for Food Safety. Rather, they should be focusing on strains that produce toxin resulting in severe illness.

“As a scientist, I would hope that his approach would be science based, because science is a critical part of public health,” he said. “I think there could have been better science used in developing the new rule.”

However, Doyle also said that Marler the lawyer is using the law to enhance food safety, and that’s a good thing.

Marler’s positions might not always be scientifically supported, said Dave Theno of Gray Dog Partners Inc., a consulting firm to the food industry, but because he’s representing the consumer’s best interests, it’s up to industry to find a way to improve things.

Theno was the chief food safety officer for Jack in the Box Inc. and sat across the table from Marler in the 1990s E. coli cases. Today, Theno considers Marler a friend, colleague and co-advocate for food safety who has seen firsthand the suffering of victims.

“Unfortunately, these things don’t happen overnight,” he said. “But Bill and I have both been there, and when you’re there, the world is never the same. This is a mission. It’s not a job.”

BY SHANNON DININNY; ASSOCIATED PRESS

  • John Munsell

    Yes, it’s important to utilize true science when formulating policies. FSIS disagrees. The agency introduced its HACCP Hoax as based in “science”. When we pressed the agency to define what “science” meant in the context of HACCP, the agency responded:
    1. FSIS will no longer police the industry, but the industry will police itself. The agency will disband its previous command-and-control authority, and embrace a “Hands Off” non-involvement role. Yup, sounds like science to me.
    2. More importantly, FSIS and the industry would start performing microbial tests on meat & poultry products, which for the most part had not been done before. Testing would provide a benefit which did not exist prior to HACCP. The largest plants implemented HACCP on January 26, 1998. On February 1, 1998 (only 6 days later!), FSIS released Directive 10,010.1 which essentially exempted the largest packers from agency-conducted testing. Quick payback!
    Agency actions since HACCP’s advent continuously reveal that FSIS ardently avoids tracebacks to the SOURCE of meat contamination, preferring to assess all liability against the downstream entity which was merely the DESTINATION of previously-contamined food. Even FDA does a better job with tracebacks, as seen in the current canteloupe outbreak, peanut butter, spinach, eggs, etc.
    Bottom line: whenever FSIS states that its policies are “science based”, red flags should go up all over the room. FSIS defines “science” as whatever provides the most comfort to the agency in its desire to be semi-retired at the industry’s largest plants.
    John Munsell

  • Mrs. Mudder

    John Munsell—
    Hey you said it so right about FSIS,
    Their “science” is more like SCARY!!!!
    Thanks.