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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Bulletproof Blog – What’s Next: The Plaintiff’s Perspective – Bill Marler on Looming Food Supply Crises

I had a great chat last week with Larry Smith – Each week Bulletproof Blog interviews top plaintiffs’ attorneys for their perspective on the crises likely to affect businesses in the near future. In this issue, we talk to Bill Marler of the Seattle-based Marler Clark, LLP PS. He is the legal profession’s best-known advocate for plaintiffs in food-related cases and a major force for food safety in the U.S. During his career, Mr. Marler has secured nearly $500 million for his clients. He publishes widely and speaks on food safety around the world.

How has this litigation changed and how do you see it changing again in the future?

Bill Marler: The growing danger for the industry is that problems are no longer cyclical. They are coming at us in rapid succession. To a great extent that is due to the expansion of the supply chain and the safety control problems that have resulted. The peanut butter crisis offers a stunning example: The Peanut Corporation of America (PCA) provided less than 1% of the nation’s product, yet cost the Peanut Industry and 200 companies between $1 billion and $1.5 billion as 4,500 items were recalled and people turned away from peanuts.

Industry economics are also problematic. Labor and other costs go up. Market pressures force retail prices down. So there’s less room for thorough product testing and other safety measures.

From 1993 (when I became involved in the Jack in the Box E. coli outbreak) to 2003, 95% of our work was E. coli linked to hamburger. The meat industry then imposed better safety standards and those cases disappeared. Now we’ve come full circle in a big way and E. coli incidents are skyrocketing. There were 186,000 pounds of meat recalled in 2006. In 2007 and 2008, that number increased to 44 million! It is an absolutely astonishing development that neither industry experts nor I can explain. It could be the great looming crisis even though the story may now be eclipsed by the other product recalls grabbing the headlines.

Are there specific products that you now have your eye on?

Bill Marler: It’s hard for anyone to predict the next crisis because we’re talking about ever-morphing pathogens. I have nothing but empathy for responsible companies challenged to somehow predict the next bacterium and where it’s going to strike. To cite just a couple of danger zones, pork products face increased risk of Methicillin-resistant Staphyloccus aureus (MRSA) bacteria and, as we effectively control salmonella, we create opportunites for Clostridium difficile (C-dif) bacteria to proliferate in our guts. It’s a deadly threat to the elderly.

How do you use the media for practice development and litigation support?

Bill Marler: Journalists know my personal brand and I believe they respect it, although they still don’t like to quote me openly because I’m perceived to be biased. But they do lean on me heavily for off-the-record guidance, which includes providing them with sources that they are comfortable quoting.

I take a high-volume approach to the Internet, posting as much information as possible as often as possible – information that is of direct value to my clients and useful for reporters.

To what extent are your relationships with third parties – public officials, interest groups, etc. – a part of your overall strategy?

Bill Marler: I’ll mention one area where such relationships may be important, especially as it pertains to a discussion of what’s next for the food industry…I often talk to people in power about criminalizing some actions – or inactions – by various parties along the food supply chain. In terms of deterrence, the civil justice system has its limits…So does simply shuttering miscreant companies.

You may well see increased support from diverse quarters for protecting the public by throwing more people in jail. I’ll be a member of that choir.