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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

What if in 1982 McDonalds had been named as the source of forty-seven sickened by E. coli O157:H7-tainted hamburger in two states?

jack_portrait_web.jpgWould the 1993 Jack in the Box E. coli outbreak ever have happened?

Over the last few weeks I have been I taking industry (well, Taco Bell) and government (well, CDC, FDA and eight states) to task for the failure to give up the name of mystery “Mexican-style fast food restaurant chain, Restaurant Chain A” as Taco Bell. However, not “naming names” is not a new, or frankly useful, phenomenon. In medical journal articles and in CDC publications over the years, the use of mystery “Restaurant A” is far more common that you would suppose.

Screen Shot 2012-02-08 at 3.47.41 PM.pngA Bit(e) of History:  In 1993, I was a young, ambulance chasing attorney (much thinner and with darker hair) who had his first big case in how the CDC described in 1993 as the “Multistate Outbreak of Escherichia coli O157:H7 Infections from Hamburgers — Western United States, 1992-1993” linked to “Restaurant A” (a.k.a. Jack in the Box). Although in medical publications the name of the restaurant to this day still remains a mystery, and the CDC in presentations still keep Jack in the witness protection program, public health officials and media in Washington State let Jack out of the box in 1993.

At the beginning of the Jack in the Box case, in researching E. coli O157:H7 and hemolytic uremic syndrome (HUS) – frankly, even learning how to say them – I headed to the University of Washington Medical School Library where I stumbled upon this article:

Ronald pics 070.jpgHemorrhagic colitis associated with a rare Escherichia coli serotype. N Engl J Med. 1983 Mar 24; 308 (12): 681-5. Riley LW, Remis RS, Helgerson SD, McGee HB, Wells JG, Davis BR, Hebert RJ, Olcott ES, Johnson LM, Hargrett NT, Blake PA, Cohen ML.

We investigated two outbreaks of an unusual gastrointestinal illness that affected at least 47 people in Oregon and Michigan in February through March and May through June 1982. The illness was characterized by severe crampy abdominal pain, initially watery diarrhea followed by grossly bloody diarrhea, and little or no fever. It was associated with eating at restaurants belonging to the same fast-food restaurant chain in Oregon (P less than 0.005) and Michigan (P = 0.0005). This report describes a clinically distinctive gastrointestinal illness associated with E. coli O157:H7, apparently transmitted by undercooked meat.

At first I thought “the same fast-food restaurant chain” must be Jack in the Box. I mean who else would poison kids in multiple states a decade apart? However, with a bit more digging, I learned that the 1982 undercooked burgers were Ronald’s not Jack’s.

So, what about transparency?  Medical journals and CDC publications become documents of record – they become history.  What if 1983 Jack in the Box knew that its chief competitor poisoned a bunch of kids?  Would Jack in the Box increased temperatures and cook times for its Jumbo Jack and avoided 1993?

Would they have denied my modest place in history?

If you hide the names, only those who know, know.  Yes, after 20 years of doing this, I can usually crack the code, but really, how useful is it to keep information like this secret from everyone else?

  • Lindsay

    Seems like the small farms and dairys don’t get the privilege of going nameless (even when cases aren’t even proven yet), but the big food guys have enough money in enough places to cover it up.

  • I would not jump to that conclusion.
    http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5723a2.htm

  • Public Health Worker

    Interestingly, trainees in public health learn early on the importance of protecting patient identity. Epidemic Intelligent Service Officers (EISOs) are the frontline public health professionals investigating multi-state outbreaks, and they tend to set the bar in how these outbreaks are ultimately reported (they have published many of the key outbreaks in NEJM, JAMA, etc.).
    In these reports, they often describe outbreaks or case-patient scenarios. To protect patient identity, they describe Patient A, Patient B, etc.
    For the foodborne outbreak-related reports, one might wonder if the CDC/EISO convention to describe Patient A, B, etc., transcended into a description of implicated foods coming from Restaurant A; Supplier A, B, C; Distributor A, B; Farm A….
    There is no inherent limitation to allowing investigators to name the company. The proprietary information is defined, but not related to their actual name.
    Should public health protect company names in the same way they protect patient names?

  • As somebody who once worked in a fast food hamburger chain restaurant, I know that such places are just as sanitary as another place I once worked: hospitals.
    Unfortunately, both fast food restaurants and hospitals are also about as hygienic as landfills.
    Thank goodness that most humans tend to have strong immune systems.

  • doc raymond

    And “WHAT IF” the American Meat Institute had won their law suit in 1994 where they asked that the naming of E coli O157:H7 as an adulterant be reversed? How many more kids would have been sickened and/or died because of their action? Bill, you would be a gzillionaire if AMI had their way back then.

  • Neal

    Bill,

    Great post. Great question.

    I remember the McDonald’s outbreak in Michigan, and everyone in public health knew the name of the restaurant involved, so no secrets were being kept.

    I chalk it up to culture — that just the way it was done. The source name was not important to discuss the epidemiology so it was left out.

    No one thought about the implications beyond the science being reported. Until now.

  • This brings home a strong point…. that in naming the companies & issues involved, this acts as a catalyst to others in the industry to address these very issues or unsafe practices.
    Once again, this impressed on me the importance of transparency… if officials are transparent about the companies involved and the issues being experienced, then not only is the consumer informed, but they are also (in theory) going to be offered safer food from competitors who tighten up their food safety measures.

  • Public Health Lawyer

    Though I work for a large state health department, my comments are entirely my own, although influenced by many years of work in public health.
    Epidemiologists interview and otherwise seek information from many different types of people. Aside from the obvious sick or recovering people, they may interview control cases, restaurant workers, foor processors, farmers, ranchers, fishermen, etc. From most of these people they are seeking information that could be embarrassing or injurious to their business interests, but is important to finding the source of the illness. It is very important that they be able to assure such individuals of confidentiality and that they have laws and lawyers that can provide that confidentiality. Without such confidentiality the work of epidemiologists would be made much more difficult and time consuming. This in turn, could prolong the outbreak.
    Of course if the threat is ongoing and disclosure is necessary to protect public health, all bets are off, but that is rarely the case in food borne illnesses when we know the cause.
    I know attorneys like Mr. Marler have a different role to play in our justice system and I respect that, but I couldn’t pass up the opportunity to explain my own.

  • Thank for the comment. You and I agree. I certainly respect, and never ask for individual identifiers. That is not my issue with public health not disclosing the name of a restaurant that is responsible for an outbreak long after the outbreak is over.

  • Public Health Lawyer

    I’m afraid we disagree. We assure all of our informants of confidentiality, whether they are individuals or businesses, and we don’t have time limits on that assurance. We have found this assurance invaluable in obtaining their cooperation.

  • I do think unfinished outbreak investigations, or inconclusive investigations of a particular company should be kept confidential, and identifiers of all ill persons should be kept confidential unless they ask for their personal information personally. I think we agree on that?
    But, not disclosing the name of a manufacturer responsible for an outbreak after an investigation is concluded? What is the public health benefit to the public of that? Should all outbreak investigations be considered confidential? Should the name of the company responsible always remain confidential?