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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Put me out of business, please

This winter, scores of Americans, most of them small children or senior citizens, have already or will become deathly ill after eating ground beef boldly labeled “USDA approved.”

The now infamous ConAgra case started with a few sick kids in Colorado and quickly spread coast-to-coast, eventually triggering the recall of nearly 19 million pounds of ground beef tainted with E. coli O157:H7 in July. Now Emmpak Foods recalls 400,000 pounds of tainted ground beef. However, Emmpack Foods is no stranger to E. coli. It recalled 471,000 pounds of ground beef just last May. I guess lightening can strike twice?

What we will learn about the Emmpack Foods recall is that it comes weeks late, after most of that meat has been consumed and 40 Wisconsin residents are sickened. Because these people trusted our government’s food inspections, dozens are ill and some suffered kidney failure and spent days or weeks hooked up to kidney dialysis machines. For some, the long-term prognosis is grim, with the risk of further kidney failure, dialysis, transplants or worse.

I know this because I am a trial lawyer who has built a practice on food pathogens. I represented most of the severely injured children in the 2000 Sizzler E. coli outbreak in Milwaukee. Over the last ten years, I have represented hundreds of families who become devastated for doing a very American pastime – eating a hamburger. This may prompt some readers to consider me a blood-sucking ambulance chaser who exploits other people’s personal tragedies.

If that is the case, here is my plea:

Put me out of business, please.

For this trial lawyer, E. coli has been a far too successful practice – and a heart-breaking one. I am tired of visiting with horribly sick kids who did not have to be sick in the first place. I am outraged with a food industry that allows E. coli and other poisons to reach consumers, and a President, Congress and federal regulatory system that does nothing about it.

Stop making kids sick – and I will happily move on. Here is how:

Actually, inspect and sample meat. At present, the USDA employs thousands of inspectors across the nation to inspect hundreds of plants that produce millions of pounds of beef at processing plants and retail outlets. The GAO has warned that the USDA’s food samplings are so scattered and infrequent that there is little chance of detecting microscopic E. coli or any other pathogen.

So hire more inspectors and give them real authority to sample meat and stop its distribution as soon as a pathogen is detected. Implement a sampling system that provides a reasonable chance of preventing another outbreak. Doing so might add a nickel a pound – maybe less – to the price of hamburger. However, it will also cut into my business. Moreover, isn’t that the idea?

Consider mandatory recall authority. This authority is required in Sen. Tom Harkin’s Safer Meat, Poultry and Foods Act of 2002 (named Kevin’s law for a young boy who died of E. coli in Wisconsin last year). Under the present system of voluntary recalls, no company has actually refused to recall contaminated product. However, in its recent report, the GAO did document several instances where companies delayed complying with recall requests. Delays mean tainted product has more time to reach consumers.

Require the meat industry to document where specific lots of food are sold. That way, it can be recalled quickly if a pathogen is detected. In most E. coli outbreaks, there is no recall because retailers do not know where the meat came from and processors rarely step forward. Timely online records would allow meat to be efficiently tracked down and recalled as soon as inspectors get a positive test result.

Merge the two federal agencies responsible for food safety. Right now, USDA’s Food Safety Inspection Service and the inspection arm of the Food and Drug Administration share this mission. The system is bifurcated, which leads to turf wars and split responsibilities. We need one independent agency that deals with food-borne pathogens.

Finally, large purchasers of meat – fast food industry, grocery store chains, and yes, the USDA – must require the meat industry to produce high quality, pathogen lessened, meat. Can you imagine the power they can put on slaughterhouses to clean up this mess?
None of this will stop E. coli entirely. This invisible poison has been around a long time and is bound to pop up again. However, these steps will enable us to detect it far more quickly, to alert stores and families, and to keep our most vulnerable citizens – kids and seniors – out of harm’s way.

And, with a little luck, it will force one damn trial lawyer to find another line of work.

  • In searching your blog, this is the only mention I could see of “Kevin’s Law.” Is there any hope of revitalizing this bill in light of the repackaged and resold pistachios now being re-recalled and other ridiculous food safety loopholes?