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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

ATLA – What are you thinking?

I have been a proud and sustaining member of the Association of Trial Lawyers of America (ATLA) for years.  However, its gratuitous post on September 25, 2006, entitled "FDA Proves Ineffectual Again: Cannot Accurately Assess Risk To Public Safety," is way off the mark.  The Food and Drug Administration (FDA) is certainly not perfect, few human organizations are, but for ATLA to blame the FDA for the failures of the lettuce and spinach industry is simply wrong. 

Let’s look at the facts:  at least eight of the 19 other food-poisoning outbreaks since 1995 linked to lettuce and spinach were traced to the Salinas Valley.  The outbreaks involved more than 400 cases of sickness and two deaths.  I know because I represented folks sickened or who lost loved ones.  In October 2003, when 13 California retirement center residents got sick and two died after eating E. coli-contaminated spinach.  In September 2003 when nearly 40 patrons of a California restaurant chain got sick after eating salads made with pre-bagged lettuce.  In July 2002, when more than 50 young women got sick at a dance camp after eating pre-washed lettuce. Several of them were hospitalized, and one suffered permanent kidney damage.  In September 2005, health authorities investigating pre-washed lettuce as a source of E. coli outbreaks in Wisconsin, Minnesota and Oregon estimated as many as 244,866 bags of potentially contaminated lettuce made it to store shelves. At least 23 where injured as a result of eating Dole lettuce.  For a comprehensive overview, see: Source for Past E. coli Outbreaks.  This is the industry’s problem, it is not the fault of the FDA, which does a hell of a job with the resources and staff the Bush administration doles (no pun intended) out.

Again, the facts:  in 2004 and again in 2005, the FDA’s top food safety official warned California farmers they needed to do more to increase the safety of their greens.  "In light of continuing outbreaks, it is clear that more needs to be done," the FDA’s Robert Brackett wrote in a Nov. 4, 2005, letter.  Suggested actions included discarding produce that comes into contact with flood waters. Rivers and creeks in the Salinas watershed are known to be periodically contaminated with E. coli, and the FDA warned the industry of that as well.  I guess the FDA tried to lead the horse (industry) to water and I bet the industry wishes it had cleaned the water first.

According the the FDA, to date, 171 cases of illness due to E. coli O157:H7 infection have been reported to the Centers for Disease Control and Prevention (CDC), including 27 cases of Hemolytic Uremic Syndrome (HUS), 92 hospitalizations and one death. To date, 25 states have reported cases of E. coli O157:H7 infection. The 25 affected states are: Arizona (7), California (1), Colorado (1), Connecticut (3) Idaho (4), Illinois (1), Indiana (8), Kentucky (8), Maine (3), Maryland (3), Michigan (4), Minnesota (2), Nebraska (9), Nevada (1), New Mexico (5), New York (11), Ohio (20), Oregon (5), Pennsylvania (8), Tennessee (1), Utah (17), Virginia (2), Washington (3), Wisconsin (43) and Wyoming (1).

We at Marler Clark are representing 61 families, 20 with Hemolytic Uremic Syndrome and investigating 3 deaths attributed to the consumption of E. coli tainted spinach.