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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Back to court – Burst of E. coli cases returns Jack in the Box litigator to the scene

I had a quick chat with Steve Bjerklie of Meat and Poultry News Thursday afternoon while I was stuck in Minneapolis after meeting with several victims of the recent E. coli outbreaks, illnesses and recalls. Now that the recalls are topping over 5,000,000 (yes, that is 5 Million) pounds of hamburger and other red meat, I am beginning to think of that great quote from Yogi Berra – “This is like déjà vu all over again.”

The spate of new E. coli outbreaks and E. coli-driven meat recalls this spring has surprised the law firm that won the original judgments against the industry in the wake of the watershed Jack in the Box outbreak 14 years ago. “It’s like the old Buffalo Springfield song,” Bill Marler, chief partner at Marler Clark LLP in Seattle, told MEAT&POULTRY. “’Somethin’s happenin’ here, what it is ain’t exactly clear.’”

From 1993 into 2002, Marler said about 95 percent of his firm’s income came from E. coli cases brought against the meat industry by families of children and adults who had been sickened or killed by E. coli-adulterated meat. But then the cases dropped off – dramatically. “In 2003 there were a couple, in 2004 zero,” he commented. “To be honest, we were heartened by the fact we were hardly seeing any new E. coli cases. My hope was that all the stuff the industry had been doing, particularly since 2002, was paying off.”

In early June, United Food Group, which was one of the companies implicated in the Jack in the Box event in 1993, expanded its recall of E. coli-adulterated ground beef to cover 370,000 pounds in addition to the original 75,000 pounds the company recalled in late May. To date, according to Marler, 40 cases of E. coli sickness are linked to the United Foods outbreak.

But United Foods’ is hardly the only E. coli-related recall of the past six weeks. At the end of May, the Fresno County Department of Community Health in California announced it is investigating an E. coli outbreak among Fresno County residents. By the end of the month, 11 people had been confirmed ill with E. coli O157:H7 infections as part of the outbreak. On May 10, USDA’s Food Safety and Inspection Service announced a 117,500 pound recall of ground beef products processed by PM Beef Holdings in Windom, Minn. The meat had been sold to distributors and retail outlets in Arizona, Illinois, Iowa, Michigan, Minnesota, Ohio, Virginia, and Wisconsin. Minnesota and Wisconsin health officials have traced at least seven E. coli illnesses to consumption of ground beef products purchased at Lunds or Byerly’s stores in the two states.

On April 20, FSIS announced the recall of 107,900 pounds of frozen ground beef products processed by Richwood Meat Co. in Merced, Calif. The California Department of Health Services discovered E. coli adulteration during an investigation. The ground beef products were distributed to stores in Arizona, California, Idaho, Oregon, and Washington state. Also on April 20, FSIS and the Pennsylvania Department of Health announced steak products produced by HFX, Inc. of South Claysburg, Pa., and sold at Hoss’s Family Steak and Sea Restaurants, a Pennsylvania-based restaurant chain, were potentially contaminated with E. coli O157:H7. The announcement came after an investigation linked several E. coli illnesses to consumption of the steaks at Hoss’s. The meat processor recalled approximately 4,900 pounds of meat products.

“It’s another June like we were having back in 2002 and 2001,” Marler, who was speaking on a telephone from an airport in Minnesota, where he had just filed a lawsuit against PM Beef Holdings, told M&P. “Basically what we’re seeing now is what we normally used to see. It’s not good.”

Why does the litigation attorney think a cluster of outbreaks and recalls has suddenly occurred now, five years after he saw the pace dropped to zero? “I honestly don’t know,” he said. “Why do the meat processors think it’s happening? That’s something I’d like to ask them.”

He credits not just the industry but also the industry’s customers, including major supermarket and foodservice chains, with demanding better, cleaner processing for safer products. He thinks, however, that distribution may play a part in the recent outbreaks. “There’s a problem with the chain of distribution. Everybody who’s doing something to the meat, they’re a processor. And I don’t think some of them have the controls they need to have,” the attorney said.

In recent years, Marler Clark’s food cases had centered for the most part on E. coli illnesses traced to lettuce, spinach and other fresh produce. Bill Marler thought he had left the meat industry behind, he said. “It’s strange and it’s disheartening. A couple months ago I was down in California talking to a reporter from CNN about the spinach situation, and he said, ‘We’re not hearing much about meat anymore,’ and I totally agreed with him. But it’s certainly a different situation now.”