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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Under the Headline: “No good deed goes unpunished”

You need a subscription to the National Law Journal to read: “Effort to help out gets plaintiffs firm booted from E. coli case,” but I will give you a bit of the flavor of the back story (here is the PDF).

The bottom line is that we frequently get calls from people (including lawyers) all over the world asking for free advice on food safety issues.  In the past – especially to lawyers who we have worked with before – we have always tried to help.  In the case reported by the National Law Journal, we told a defense lawyer that they were looking in the wrong direction and gave them the name of an expert that could help them sort through the facts that the E. coli outbreak was likely national in scope and not just related to the restaurant (Giacomo’s) she represented and where our future client ate.  Here are the facts:

In mid-September 2009, the Colorado Department of Public Health and Environment (CDPHE) identified two cases of E. coli O157:H7 cases with “matching” PFGE patterns.[1]  In conjunction with local health officials, CDPHE began an investigation of the two Colorado cases.  During the early stages of the investigation, CDPHE officials were notified that Minnesota was reporting a person with an E. coli O157:H7 infection, also with a matching PFGE pattern.  Ultimately, it would be revealed that the cluster of E. coli O157:H7 infections with matching PFGE patterns encompassed 10 ill individuals in six states, Colorado (2) Connecticut (1), Iowa (2), Minnesota (3), Missouri (1), and North Carolina (1).

The cluster of illnesses sparked a multi-state investigation, conducted primarily by CDPHE, Minnesota Department of Health (MDH), Minnesota Department of Agriculture (MDA), Iowa Department of Public Health (IDPH) and the North Carolina Department of Health and Human Services (NCDHHS.)  The investigation by CDPHE revealed that the two Colorado cases, including a young girl who developed acute kidney failure, had dined at the same restaurant in Pueblo, Colorado, Giacomo’s, on the same day, September 6, 2009.  In fact, both of the ill restaurant patrons had consumed a house salad, containing iceberg and romaine lettuce.  See April 30, 2010 CDPHE Report, Attachment No. 1.  Based on information coming in from other states, CDPHE officials conducted traceback on the lettuce and noted:

The restaurant in question obtains their romaine and iceberg lettuce from U.S. Foodservice under the name Cross Valley Farms.  This is an exclusive brand of U.S. FoodService.  US Foodservice receives both their romaine and iceberg lettuce from Tanimura and Antle in Salinas, CA.  See Email from Jennifer Sadlowski, 11/13/09, Attachment No. 2.

The investigation soon revealed a link to the same romaine lettuce for other states’ ill persons as well.  Both Iowa cases, and one of the three Minnesota cases ate at the same restaurant in Omaha, Nebraska on September 5, 2009.  See Attachment No. 3, CDPHE Records, 004, 0011.  These three all consumed lettuce at the restaurant.  See Attachment No. 4, CDPHE Records, 0013-0014. Minnesota’s supervising epidemiologist Kirk Smith wrote in an email on October 28, 2009 with respect to the Colorado and Nebraska restaurants:  “invoices showed that they both get the same brand of romaine lettuce (Cross Valley Farms.).”  See Attachment No. 5, CDPHE Records, 0020.

This understanding of the connection to Cross Valley Farms lettuce is consistent with the records generated by Minnesota Department of Agriculture as well.  MDA officials kept a “Daily Outbreak Summary” throughout the investigation.  The update for October 21, 2009 states in reference to the CO and NE restaurant, “From comparing the invoices of these two restaurants, they both use Cross Valley Farms Romaine in salads that the cases ate.”  The October 30, 2009 update says “The restaurants in CO and NE that are associated with the cases in those states served Cross Valley Farms whole romaine lettuce heads.  Cross Valley Farms is a label of U.S. Foodservice.  The romaine for CO came from a U.S. Foodservice distributor in Denver, the romaine for NE came from a U.S. Foodservice distributor in Omaha.”  See Attachment No. 6, MDA Records, 0045-0047.

For the remaining members of the cluster for whom information was available, investigation also suggested romaine lettuce as the source.[2]  All of this led the lead investigators to conclude that romaine lettuce from Tanimura and Antle, distributed by U.S. Foodservice was the source of the cluster of E. coli O157:H7 infections.  The email from Minnesota’s Dr. Smith sums it up well while imploring CDC to further investigate the cluster:

Briefly, there are three people (2 Iowa residents and one Minnesota resident) who ate at the same exact Italian restaurant in Omaha, Nebraska on September 5.  Two Colorado residents ate (independently) at the same Italian restaurant in Pueblo [CO].  The Nebraska and Colorado restaurants are not part of the same chain.   All of the 5 cases had salads, and invoices from the two restaurants showed that they both get the same brand of romaine lettuce (Cross Valley Farms).  Again – rock solid…. (emphasis added).  See Attachment No. 7, IDPH Records, 0019.

For further information, See the full CDPHE Records, Attachment No. 8; Minnesota Department of Agriculture Records, Attachment No. 9; Iowa Department of Public Health Records, Attachment No. 10; Pueblo City-County Health Department Records, Attachment No. 11; Minnesota Department of Health Records, Attachment No. 12; North Carolina Department of Health and Human Services Records, Attachment No. 13; and Missouri Department of Health Records, Attachment No. 14.

Since I have already done the work that she should have done, my strong suspicion is that the lawyer for the restaurant will miss me in the litigation.


[1] PFGE refers to pulsed field gel electrophoresis, and is the process by which the genetic makeup of strains of bacteria may be identified.  A “matching” PFGE pattern between two cases is strongly suggestive of a single source for the infections.

[2] Connecticut, as per their usual procedure refused to provide information.   Missouri states that it cannot locate individual information on the ill person.