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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

One E. coli O157:H7 Outbreak I Think I could have Prevented

John Munsell, known to the readers of Mother Jones as – “Meatpacking Maverick – Montana meatpacker John Munsell’s against-the-odds struggle for improved food safety” – by Michael Scherer, and to the readers of Marler Blog, one of its most consistent commentators.  John is an unlikely American Hero.

I met John – well talked to him in the early spring of 2002. I had been blitzing the USDA and FSIS with Freedom of Information Act requests (FOIA’s) about all of their E. coli O157:H7 recalls in 2001 into 2002. Because that information was not readily available to the pubic (and many health departments) I posted it on www.fsis-pfge.org – and still do. In my sweep of all recalls I received the information about a very small recall (270 pounds), with no reported illnesses, from Munsell’s and his father’s Montana Quality Foods of Miles City Montana. I paid it no mind until John’s call.

I now remember the call like it was yesterday. I was sitting in my corner office high above the Seattle skyline. John’s call came in and the first thing he asked was “did my product hurt anyone?” A bit taken aback – because an owner of a business was calling me directly (I usually hear from some lawyer) – I answered, “No, I am not aware of any reported illnesses.”

John then told me his story – much better told by Mr. Scherer below. But, the thing I recall the most is when he said, “Mr. Marler, the E. coli contaminated meat came from ConAgra’s Greely plant. It was contaminated before it came to us.” He then said, “USDA is after me when they should be paying attention to ConAgra before something happens.” He offered to send me documents proving that the contaminated meat was really ConAgra’s. I said sure.

A few days later I got a pile of documents as John promissed. I set them on a table in my office. John called a few times more that spring, but I ignored him – and his documents.

Months later, I was driving back from a family vacation on July 5, with my seven-year-old asleep in the car when my cell phone rang. It was counsel for ConAgra. You see (although I did not know it then) on June 30, 2002, the USDA Food Safety and Inspection Service (FSIS) announced the recall of 354,200 pounds of ground beef manufactured at the ConAgra Beef Company plant in Greeley, Colorado. He asked if ConAgra could retain my firm to represent them in a “bit of an E. coli problem.” I said, “Thanks for the offer, but let me check to see if we are already representing victims.”

Both a bit stunned by the call from ConAgra and missing the recall, I called the office and found that we had already been called by a family whose young daughter was still hospitalized struggling against E. coli O157:H7 induced Hemolytic Uremic Syndrome.  I declined ConAgra’s offer.

I then remembered John Munsell’s call and the documents still sitting in my office that I, like the USDA and FSIS, had ignored.

By July 12, the Colorado Department of Public Health and Environment (CDPHE) disclosed that 17 Colorado residents had been infected with E. coli O157:H7. Several other cases were subsequently reported in neighboring states. Three days later, on July 15, the Centers for Disease Control and Prevention (CDC) announced that the strain of E. coli O157:H7 that had infected the 17 sickened individuals was genetically indistinguishable from the strain isolated from the recalled ConAgra beef. On July 19, 2002, FSIS expanded the ConAgra ground beef recall to 18.6 million pounds of ground beef. In the weeks that followed the nationwide recall, more than 45 people in 23 states reported illnesses linked to the contaminated ground beef.

Reports indicated that ConAgra received 31 violations in the 13 months before its June and July 2002 ground beef recalls, and a September 13, 2002 letter issued by the following congressional members: Representatives Mary Kaptur, Rosa DeLauro, Henry Waxman and Senator Richard Durbin demanded to know why the USDA and ConAgra had failed to alert the public to possible contamination until more than two months after they knew there was contamination at the plant. Moreover, they intimated that ConAgra hindered the USDA investigation by refusing to turn over information about its Greeley slaughterhouses. On November 15, 2002, the USDA shut down the ConAgra plant in Greeley (known as Swift and Co.), due to repeated failures to prevent fecal contamination of carcasses. The plant has since reopened.

I eventually represented most of the victims of the E. coli outbreak, which led to at least 46 illnesses and one death. Among the victims were an Ohio childcare worker, a Colorado security officer who was battling forest fires, and young children in Colorado, Nebraska, and South Dakota. Several of them were hospitalized with hemolytic uremic syndrome, a frightening complication of E. coli O157:H7 infection that can lead to kidney failure and neurological impairment.

John, I am sorry that I did not pay attention to you when you called and do something to avoid the outbreak. I think about this everyday.

Months into the outbreak I met with John, his dad and John’s wife.  I flew into Rapid City, South Dakota and drove through Sturgis, Spearfish on to Miles City, Montana.  His dad made me pancakes along with what was left of his crew.  John cooked a great steak that night.  He said the prayer over dinner.

For lawyer readers, see the Trial and Appeals Court Decisions.

Read the full Mother Jones Article Below:

Bad Meat made an activist out of John Munsell. Before the tainted beef arrived—USDA-approved and vacuum-sealed—at Montana Quality Foods, Munsell’s family-run packing plant, this die-hard Republican had no reason to doubt the integrity of the food-safety system. But that changed after the meat he ground for hamburger tested positive for E. coli O157:H7, a potentially deadly pathogen found in cattle feces that sickens thousands every year.

Instead of tracking the contaminated meat back to its source, the USDA launched an investigation of Munsell’s own operation in Miles City, Montana. Never mind that the local federal inspector had seen the beef go straight from the package into a clean grinder—a USDA spokesman called that testimony "hearsay." By February 2002, three more tests of meat Munsell was grinding straight from the package came back positive in USDA tests for E. coli. This time, as he would later testify in a government hearing, he had paperwork documenting that the beef came from a single source: ConAgra’s massive Greeley, Colorado, facility, which kills as many cows in three hours as Montana Quality Foods handles in a year.

Munsell fired off an angry email to the district USDA manager, warning of a potential public-health emergency, and adding that if no one tracked down the rest of the bad meat, "both of us should share a cell in Alcatraz." The agency moved immediately and aggressively—not to recall meat from Greeley, but to shut down Munsell’s grinding operation, a punishment that lasted four months.

Despite Munsell’s continued whistleblowing—to Senator Conrad Burns (R-Mont.), national cattle associations, and his fellow meat processors—the USDA failed to address the alleged contamination at ConAgra’s Greeley plant. Then, in July 2002, Munsell’s worst fears came true. E. coli-tainted burger from Greeley killed an Ohio woman and sickened at least 35 others. ConAgra then recalled 19 million pounds of beef, one of the largest recalls in history. (As much as 80 percent of the meat had already been consumed.)

"I want the world to know what the real policies are," says Munsell, driving through Miles City, a ranching town on Montana’s eastern plain where the casinos compete with saddle shops on Main Street and the men don’t take their hats off for much. "The real policies imperil the consumer," he says. "The USDA doesn’t want that out."

Lanky, with thinning sandy hair, the 57-year-old Munsell speaks in a measured voice that barely hints at the fury he feels. Though his battle with the USDA has crippled his business, Munsell is now on the offensive. After months of lobbying, he persuaded Senator Burns to convene a congressional hearing in Billings last December, where Munsell testified on the failings of USDA inspections. Munsell also convinced the Government Accountability Project (GAP)—the nation’s leading whistleblower organization—to investigate the USDA’s handling of his case. In July 2003, GAP released a major report titled "Shielding the Giant: USDA’s ‘Don’t Look, Don’t Know’ Policy for Beef Inspection." "The ConAgra-Munsell scandal," it concluded, "perpetuates a long-standing USDA pattern to blame the messenger and scapegoat the victims, rather than stand behind its seal of wholesomeness."

Why would the USDA willfully ignore a whistleblower and stand by as feces-tainted meat entered grocery stores? Two decades of federal reforms have left more and more regulation in the hands of the meat industry itself. "Agribusiness runs the show" at the USDA, says Tony Corbo, a food-safety lobbyist with the watchdog group Public Citizen.

In 1998 the USDA stopped testing for E. coli at the company’s Greeley facility, saying internal safeguards were sufficient. While tests continued at small plants like Munsell’s, the USDA allowed big packers to conduct their own in-house tests. Indeed, according to the congressional investigation of the ConAgra recall initiated by Rep. Henry Waxman (D-Calif.), 33 in-house tests conducted at ConAgra’s Greeley facility in the month before the recall came back positive for E. coli contamination. ConAgra failed to alert the USDA. In a scathing letter to Agriculture Secretary Ann Veneman this spring, Waxman wrote that the USDA’s policy of industry self-regulation "appears grossly inadequate to protect the public health."

Munsell has steadily been winning allies in his fight for reform. "This guy is the small businessman. He’s done everything right," says Brad Keena, a spokesman for Rep. Denny Rehberg (R-Mont.), who has followed Munsell’s case closely. "But because he’s the middleman, his reputation gets ground into the problem of the larger company." (Swift & Co., which bought ConAgra’s meatpacking operations last year, insists there is no conclusive evidence that the Greeley plant was responsible for Munsell’s bad meat.)

To this day, the USDA maintains that it followed all of its own policies in regard to ConAgra and boasts of new safeguards that were put into place after the recall. USDA spokesman Steve Cohen also argues that Munsell never proved the source of the initial E. coli contamination and suggests that he "got a good deal" on the ConAgra meat. Munsell isn’t rattled by such accusations. "He is simply grasping at straws," he says.

The negative publicity from the USDA’s shutdown of his plant has proved fatal to business. This summer, Munsell put his operation up for sale, foretelling the end of a business that his father—who, at the age of 84, still serves breakfast to the crew—founded in 1946. But Munsell has no regrets. What haunts him is not his decision to go public, he says, but the fact that he almost decided to stay quiet, just to protect his own livelihood. "You know what it comes down to?" says the third-generation meatpacker, his steady composure beginning to crack. "My grandkids. The USDA could care less about the health of my grandkids."

  • Tony DiGiesi

    The Food Safety Issue is not the ONLY Failure of the U.S. Government…
    Our Politicians have their Hands out too Often or cozy up with the folks on Wall Street..Or Bernie Maydoff would not have happened.Nor the CountryWide Mortgage Fraud and the Bank Failures..
    THEN THERE WAS ENRON…AND Paul Bilzarian & Hostel Take Over of OUR Corporations..funded by WALL STREET..tHEN cLINTON AND wHITEwATER…You Play games often enough and guess whaT a real ProblemS arise..I am not inclined to believe anything the government or it’s Agency’s OR sENATORS OR cONGRESSMEN WHATEVER..gOVENORS,OR mAYORS say…REMEMBER Water Gate, File Gate..Monica Lewinsky Gate…cLINTON ANd wHITEWATER,,TROOPER gATE “Read My Lips” 9-11..E-Coli…or whatever…. what is going on here in America..”IS” ALL TO PLAIN AS THE NOSE ON YOUR fACE..And This is just a small sample..

  • cheryl berenson RN, MS-MPH student OHSU

    Until we have real campaign finance reform in this country and stop making appointments of industry insiders to watchdog positions in government this sad scenario will continue to repeat itself– it is like the fox watching the hen house!! and the small businessperson seems to be the big loser most of the time.

  • John Munsell

    I don’t fault Bill Marler for initially ignoring my warnings, because my story is so outlandish it stretches credulity. Who would ever believe that USDA would intentionally turn blind eyes to the OBVIOUS sources of food contamination? I know that citizens in my small rural town still believe that I am merely attempting to blame ConAgra for problems which occurred at my plant. Let’s face it, convincing people that USDA is asleep at the wheel is a hard sell. Fortunately, owners of small plants across America as well as USDA inspectors have secretly contacted me, and guess what, they all tell the same story, in that agency actions at my plant were not unique, but business-as-usual at small and very small plants. Exactly the opposite is true at the large plants, where the agency has greatly minimized its monitoring of meat production lines. Admittedly, the agency prefers to focus its attention on paperflow, not meat production lines. And yes, paperflow can be created to state whatever plant management desires. We’ve had Watergate and Monicagate. We shall eventually experience E.coligate and HACCPgate, just give us time. While outbreaks and recalls are exploding, HACCP is imploding, doomed by its utterly unscientific foundation. John Munsell

  • This problem is neither new nor limited to the United States. And campaign finance reform is far from a silver bullet.
    Fact is that in Western Society, money talks and always has. Do you really think the English and French royal families hated each other enough to continue the 100 Years War? Or any of the others? England’s naval might was built to sustain traders. Period. And today’s wars, against Axes of Evil, against poverty, against drugs, against religious zealots, are ALL about money, control of money, and the power of money. The collateral damage to ordinary people, be they soldiers or sailors in service of “their country” or simply children eating hamburgers, is irrelevant to money.
    A President, a Senator, all 100 of them even, or the President and complete population of both Houses combined cannot run the country without the “civil service” and huge parts of the civil service, like it or not, are moved by money, the promise of money, influence and the promise of influence, power and the promise of power.
    We are all responsible. Look at how many agreed that GM should not simply die, regardless of how deeply the cancer of greed had spread within it.
    As long as money is unaccountable – Swift & Co executives should be jailed for the problems here, just as Maple Leaf executives should be jailed for killing more than 20 Canadians – this will continue. And money is permanently unaccountable.

  • cheryl berenson RN, MS-MPH student OHSU

    Perhaps it would be better to discuss values.

  • Tony

    “While outbreaks and recalls are exploding, HACCP is imploding, doomed by its utterly unscientific
    foundation.” John Munsell
    John, I am curious as to your statement as noted above, is their an alternative program to HACCP that you would support, would you be comfortable with eliminating the need for the implementation of HACCP programs for processing plants/restaurants; etc?
    I have worked in several food processing plants, based on my experience, HACCP is a great tool but cannot function on its own….HACCP must be based on solid scientific validation and a thorough hazard analysis of the process flow (no short cuts) indicating appropriate corrective actions, and of course be supported by a responsible/trained workforce with the unequivocal support of management. The HACCP program relies on prerequisite support programs such as, sanitation, allergen control etc.
    If I were to choose between eating food from a non HACCP and a HACCP approved establishment I would choose the latter
    Jack in the Box was the first quick-service chain to adopt HACCP, many other processing plants/restaurants have adopted the HACCP program, I wonder how many more recalls would have been initiated had we not had a program called HACCP?

  • John Munsell

    Tony: Sorry that I haven’t responded sooner, but I’ve been on the road, different directions, in last 7 days. I agree with much of what you state about HACCP, ESPECIALLY where you refer to “HACCP must be based on solid scientific validation”. FSIS has implemented HACCP in a non-scienitific fashion, designed to send all liability downstream for previously-contaminated meat while insulating the originating corporate slaughter behemoths from accountability. As Don Thompson so eloquently stated above, money runs the show, including the agency which has been charged with responsibility to protect the public from foodborne outbreaks.
    I believe that HACCP should be kept, but only as a portion of the overall meat inspection continuum. It must not be considered as the all-in-all, but as one valuable component. Currently, HACCP is THE god USDA serves, and as such, is sacrosanct. USDA avoids challenging, or “validating” the overall HACCP concept, because HACCP allegedly is science-based, and we dare not challenge “science” or we will be labeled as Luddites. HACCP provides management a valuable tool, but only if it is operated in a meaningful scientific fashion.
    USDA stated in the mid-90’s that the two foundational precepts on which HACCP was built were (a) Prevention, and (b) Corrective Actions to prevent recurrences. Well, our ongoing outbreaks and recalls reveal that we are not doing well for either (a) or (b) above. My perception is that USDA/FSIS, bowing to pressure from the largest meat companies, prefers to place all emphasis at downline further processing plants who are now expected to (1) identify pathogens arriving at their facilities in previously-contaminated meat purchased from originating slaughterhouse suppliers, and then (2) sanitize the meat of all invisible pathogens. Period. USDA takes virtually no actions at the originating slaughter establishments, but requires corrective actions at the victimized downstream establishments. No wonder outbreaks and recalls occur, because no corrective actions are taken at the SOURCE. Why not? Because, and this is imperative to realize, HACCP deregulated the industry. Well, it deregulated the largest slaughter establishments, while the agency at the same time greatly increased its scrutiny, oversight and enforcement actions at the relatively helpless downstream plants which lack the political clout and economic wherewithal enjoyed by the multinational meat giants. You may be surprised that after I spent 34 years owning a plant, that I am suggesting that we require USDA to regulate the industry, but that is precisely what I am saying.
    When the large slaughter plants produce contaminated meat caused by sloppy kill floor dressing procedures, USDA requires the Destination plants to implement corrective actions….but not the Source plants. And, how can the agency implement enforcement actions against the huge plants when USDA publicly stated in the mid-90’s that it would maintain a “Hands Off” non-involvement role in this now-deregulated industry? And, the agency also promised that under the HACCP umbrella, USDA would no longer police the industry, but that the industry would police itself. The agency also stated that it would disband its previous command and control upon HACCP’s advent. These promises effectively deregulated the industry……….but only the biggest packers! Yes, I am suggesting that humans in 2009 are exactly the same as humans depicted in Upton Sinclair’s “The Jungle” in 1906. As such, we humans, including all of us “scientific experts” in the meat industry require government oversight. USDA disagrees, shown by its proactive adoption of deregulated HACCP, which by the way, has allowed the agency to enjoy a semi-retirement status at the big plants. Challenging the biggest plants when pathogens are discovered is a daunting, delicate, and extemely uncomfortable task for any government employee. The tool which alleviates such discomfort is, voila…..HACCP!
    While both the agency and the industry’s biggest playes downplay the value of testing, I counter that testing will prove (validate) the success or failure of individual plant’s HACCP Plans. However, both the agency and the industry’s biggest players oppose increased microbial testing, or giving credibility to testing, because increased testing will quickly prove two facts: (1) USDA is asleep at the wheel at the big packers, and (2) the big packers continue to ship sizeable amounts of pathogen-laced meat into commerce.
    As an example, when a USDA inspector collects a ground beef sample at downsteam further processing plantss for analysis at USDA labs, the inspector is not allowed to document the ORIGIN of the meat at the time of sample collection! I know you don’t believe me, so contact the USDA to confirm or deny this statement. Can you imagine any other scientific experiement which prevents full accumulation of evidence in real time as scientifi lab experiments are conducted? Think of how the Manhattan Project would have fared if its scientists were faced with artificial restrictions allowing unrestricted evidence gathering during research. Or, the pharmaceutical industry. Or NASA.
    As such, USDA’s method of HACCP implementation is not scientific, but a biased interloper which was designed from day one to allow the agency to relax in a semi-retirement role at the big packers, and to insulate the big packers from meaningful government oversight. We must remember that the Federal Meat Inspection Act was written to promote public health, not USDA comfort.
    Yes, HACCP can be valuable, but not in the fashion in which USDA inappropriately implemented it. The mere fact that USDA classifies HACCP is being “scientific” reveals the deplorable depths to which our government’s meat non-inspection service has fallen.
    John Munsell
    ps My supporters include USDA inspectors, veterinarians, and small plant owners. My opponents are the big packers and top USDA officials, both of whom would be forced to accept accountability if HACCP would be greatly changed, or replaced.

  • Margaret

    Dear Reader,
    Fabulous story; I am looking for an update on Mr. Munsell still.
    I am a college educator with students doing research on American Food Industry. This will be the 3rd semester they have focused on food issues: obesity, children and ads, meat industry. etc.
    I would like to have someone visit our college campus during spring semester (January – April) to speak about the problem of food safety, particularly meat.
    Would John Munsell be available or could he refer me to someone in southern California who would be willing to help enlighten students. There is no honorarium available for this; I am just hoping for a voluntary visit ???
    Ventura Community College District is located about an hour north of LA and less than an hour south of Santa Barbara.
    Thanks for your time and assistance,
    Margaret de la M
    Oxnard College
    Professor of English
    805.488.2121 (home)