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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Punitive Damages are in the Wright County Egg Case – The Fox is now in the Hen House

This moring we got the news that the Federal Court will allow us to maintain a claim for punitive damages agaist Wright County Egg and its owner, Austin J. “Jack” DeCoster.  For those you may have forgotten:

According to the CDC, from May 1 to November 30, 2010, approximately 1,939 Salmonella Enteritidis illnesses were reported that are likely to be associated with this outbreak. According to the FDA, on August 13, 2010, Wright County Egg of Galt, Iowa, conducted a nationwide voluntary recall of shell eggs. On August 18, 2010, Wright County Egg expanded its recall. On August 20, 2010, Hillandale Farms of Iowa conducted a nationwide voluntary recall of shell eggs. The total number of eggs recalled was 500,000,000. We filed multiple lawsuits in Iowa Federal Court on behalf of people who contracted Salmonella Enteritidis after eating these eggs.

DeCoster-apologizes-for-salmonella.jpgWright County Egg’s owner, Austin J. “Jack” DeCoster has a long history of wanton and willful disregard for the rights and safety of those who purchase and consume its egg products. Beginning in 1982, egg production facilities owned and operated by Austin J. DeCoster, owner of Wright County Egg, have been repeatedly linked to outbreaks of Salmonella illnesses, including Salmonella Enteritidis outbreaks. According to a report in the New York Times, these outbreaks include:

  • In 1982, approximately 36 people were sickened, and one person died, in an outbreak of Salmonella enteritidis traced to an egg production facility owned and operated by Mr. DeCoster.
  • Eggs from the same DeCoster owned facility were suspected as the source of a simultaneous outbreak in Massachusetts that sickened 400 people.
  • In 1987, nine people died and roughly 500 were sickened in an outbreak of Salmonella enteritidis in New York City by eggs produced by farms owned and operated by Mr. DeCoster.
  • In 1992, eggs from Mr. DeCoster’s farm in Maryland were the source of a Salmonella outbreak in Connecticut.
  • Numerous state and local regulatory agencies—including New York and Maryland—have banned, quarantined or otherwise limited the sale of eggs from egg production facilities operated by Mr. DeCoster.

For the above reasons, and for the below findings by the FDA Inspection, we alleged that punitive damages were appropriate. Punitive damages are appropriate when the conduct of the defendant from which the claim arose constituted a willful and wanton disregard for the rights or safety of another. Iowa Code § 668A.1(1)(a). Willful and wanton disregard involves an intentional, unreasonable act “in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” Cawthorn v. Catholic Health Initiative Corp., 743 N.W.2d 525, 529 (Iowa 2007) (quoting Kiesau v. Bantz, 686 N.W.2d 164, 173 (Iowa 2004)).

Keep reading if you are not yet convinced:

The FDA form 483, which contains observations of its inspection, included the following:

· Chicken manure located in the manure pits below the egg laying operations was observed to be approximately 4 feet high to 8 feet high at the following locations: Layer 1 – House 1; Layer 3 – Houses 2, 7, 17, and 18. The outside access doors to the manure pits at these locations had been pushed out by the weight of the manure, leaving open access to wildlife or domesticated animals.

· Un-baited, unsealed holes appearing to be rodent burrows located along the second floor baseboards were observed inside Layer 1 – Houses 1-9 and 11-13; Layer 2 – Houses 7 and 11; Layer 3 – Houses 1, 3, 4, 5, and 6; Layer 4 – House 3.

· Dark liquid which appeared to be manure was observed seeping through the concrete foundation to the outside of the laying houses at the following locations: Layer 1 – Houses 1, 2, 3, 4, 5, 8, 11, 12, and 14; and Layer 3 – Houses 1, 8, 13, and 17.

· Standing water approximately 3 inches deep was observed at the southeast corner of the manure pit located inside Layer 1 – House 13.

· Un-caged birds (chickens having escaped) were observed in the egg laying operations in contact with the egg laying birds at Layer 3 – Houses 9 and 16. The un-caged birds were using the manure, which was approximately 8 feet high, to access the egg laying area.

· Layer 3 – House 11, the house entrance door to access both House 11 and 12 was blocked with excessive amounts of manure in the manure pits.

· There were between 2 to 5 live mice observed inside the egg laying Houses 1, 2, 3, 5, 7, 9, 10, 11, and 14.

· Live and dead flies too numerous to count were observed at the following locations inside the egg laying houses: Layer 1 – Houses 3, 4, 6, 8, 9, 11, and 12; Layer 2 – Houses 7 and 11; Layer 3 – Houses 3, 4, 4, 5, 7, 8, 15, 16, 17, and 18. The live flies were on and around egg belts, feed, shell eggs and walkways in the different sections of each egg laying area. In addition, live and dead maggots too numerous to count were observed on the manure pit floor located in Layer 2 – House 7.

· [Failure to] document washing and disinfecting of your dead hen truck and manure equipment prior to moving from farm to farm.

· [Failure to] maintain records documenting the washing and disinfection of the trailers used for the movement of pullets to laying houses.

· Birds were observed roosting and flying, chicks heard chirping in the storage and milking facilities. In addition, nesting material was observed in the feed mill closed mixing system, ingredient storage and truck filling areas.

· Outdoor whole kernel corn grain bins 4 and 6 observed to have the topside doors/lids open to the environment and pigeons were observed entering and leaving these openings. Birds were also observed sitting/flying around and over the openings.

In addition, FDA investigators found Salmonella in numerous environmental samples collected at the facility, including:

· On 8/13/2010, an environmental sample was collected from Layer 2, house 7 manure swab from row 1 – left side.

· On 8/16/2010, an environmental sample was collected from Layer 2, house 11 at manure scraper blade from row 3 – right side.

· On 8/13/2010, an environmental sample was collected from Layer 4, house 3 at walkway 1 – right side and walkway 3 – right side.

· On 8/14/2010, a sample of meat and bone meal was collected from ingredient bin 7 located at your feed mill.

· On 8/17/2010, a sample of finished feed “Developer” pullet feed was collected from the feed mill.

· On 8/16/2010, an environmental sample was collected from the roof level covered ingredient bin chute 8; Second Floor ingredient bin cover 19 (ingredient bin 19 holds ground corn) located at your feed mill.

In addition to the FDA investigation, a Congressional investigation uncovered further evidence of Wright County Egg’s indifference to the conditions at its facility and risk of illness to consumers. Records presented at the Congressional hearings included environmental sample reports from the defendant’s facility in and around Galt Iowa from between 2008 and 2010 that indicated that Wright County Egg received 426 positive results for Salmonella, including 73 samples that were potentially positive for Salmonella enteritidis. The testing included 66 positive samples for Salmonella on May 27, 2010 alone.

As I said, the Fox is now in the Hen House.

  • Cathy

    Thank You for providing this update and to put it simply- take him to the cleaners.

  • John Munsell

    I applaud Marler Clark for targetting Mr. DeCoster for recurring sanitation problems at his egg producing facilities over recent decades. If America can successfully force the plants which are the true source of pathogens to implement meaningful corrective actions, public health will benefit.
    I respectfully suggest that we place the same focus on the meat industry. Traditionally, USDA/FSIS has primarily targetted the downstream further processing plants for enforcement actions when pathogens are discovered in meat products. If our government were to use the same rationale in this egg scenario, we would be assessing full responsibility for unsafe eggs on Safeway, Costco, WalMart, etc, even though they are not responsible for the presence of Salmonella on the eggs. Should we require these retail stores to microbially test incoming eggs? N-60, N-20, or N-100%? No, we need to go to the SOURCE, and then force the source to clean up its act.
    Yes, it can be argued that live beef carry e.coli. Absolutely true. It has been stated by some that livestock producers, ranchers, feedlots etc be responsible for reducing or eliminating the incidence of E.coli in the intestines of their animals. We never know, but some offshoot of this idea may become reality in the future, but it is not practical at this time. Bioniche and Epitopix have both produced E.coli vaccines for use in live animals, and Cargill successfully conducted a test of the Epitopix vaccine last year in tens of thousands of feedlot animals in CO. Cargill intends to conduct further tests this year, to test the efficacy of the vaccine. Yes, the day may come when such vaccines are ubiquitous in the livestock industry, just as other animal vaccines are currently widely administered. We are still in the experimental stage.
    Secondly, manure is a carrier of E.coli & Salmonella. It is argued by some that concentrated animal feeding operations (CAFO’s) are pathogenic breeding grounds, as hundreds of beef share in each others’ excrement daily. True. Easily understood. What is more difficult is to decide what solutions are available. Many Americans, Japanese and other consumers (including me) absolutely love well-marbled Choice and Prime beef, which requires CAFO’s if we are to produce adequate tonnages to meet the meat demand. If CAFO’s were outlawed, and feeding corn to beef was likewise outlawed, our grass ranges would be hard pressed to deliver the same quantity of “finished condition” beef to slaughterhouses to meet demand.
    Since the silver bullet to remove E.coli 0157:H7 & other non-1057 STEC’s from animals has not yet been perfected, our primary focus must be at the slaughterhouse, where fecal bacteria is being unwittingly deposited onto exposed carcasses, and thereby entering the food chain. Indeed, future years may reveal our ability to trace back to the feedlot where the live animal carried the E.coli, but we are not there yet, in terms of eradicating this pathogen from live animals. If JFK had stated in his 1961 inaugural address that he wanted a man on the moon before the end of the year, we would have realized the inability of mankind to respond so quickly to meet the goal. However, we did have a man on the moon……eight and a half years later. Similarly, we just may witness a 90% or more reduction of E.coli 0157:H7 in live beef in the next few years, but it won’t be in 2011.
    John Munsell

  • Ann Quinn, consumer

    Mr. Marler, what about punitive damages for consumers injured by food products
    not even minimally safety tested before release for consumption by the public?
    Could this set a precedent for all food producers/processors/grocery retailers
    for recovery of punitive damages?
    I’m thinking specifically, Mr. Marler, of the many, many foodborne illness victims
    whose lives are destroyed or seriously damaged by food products field tested
    on the consuming public, and hoping that penalties for poor food production
    practices/total lack of food safety testing could also be considered willful acts
    for which greatly increased punitive damages could be recovered by victims..

  • John Munsell

    Ann Quinn asks interesting question. Could you please provide some examples of food products not even minimally safety tested before release for consumption by the public? This might deserve a blog all of its own. John Munsell

  • Ann Quinn, consumer

    Mr. Munsell, I’m no expert. The one that immediately comes to mind as a
    consumer, after four years of experience with the end result terminal disease
    by my three pets, are the commercial pet food recalls of 2007 for melamine
    and further pet food recalls for excessive zinc in 2009 and
    in 2011 for thiamine deficiency. .I’m just suggesting, after all
    the producer spin about certain things, like melamine and cyanuric acid, not being
    on producer/processor “radar screens,” that not all food ingredients are tested all
    the time that might prevent significant foodborne illness. I would, of course, have
    to leave the precise tests of vitamin and mineral supplements, as well
    as raw ingredients, to the “experts” who in my opinion are not doing a good
    enough job. And after four years of dealing with regulatory bureacuracies and
    producer/processor companies, I’m personally convinced only significantly
    increased punitive damages will result in needed food safety improvements.
    So I’m hoping Mr. Marler can help set that precedent in cases like this on behalf
    of consumers and perhaps expand the definition of willful conduct.

  • Doc Mudd

    The onrushing wave of exempt cottage industry stuff is a growing class of ‘untested’ schlock being foisted on the public.
    Flea market commerce. No standards, no testing, no accountability, no concept of food safety…except good ol’ blind faith, of course. Caveat emptor, baby, caveat emptor!

  • It Can Be Done

    I wouldn’t be surprised to find out that the rising number of Salmonella Enteritidis
    cases since 1993 all link directly to Jack Decoster’s Iowa facility since no one outside of the factory has been monitoring it’s egg production for Salmonella and since the last time he was found responsible for an outbreak of Salmonella was 1992. This particular sub-strain, Salmonella
    Enteritidis Pattern #4, found in his eggs in the 2010 Outbreak, has become exceedingly common, and quite possibly may have always been shipped in eggs from his Iowa factory alone. It may have just taken until 2010 for enough of it to spread throughout his millions of hens divided in separate housing, for enough hens to get sick and produce the eggs responsible for the recent outbreak, and for him to knowingly release for re-sale the eggs which tested positive for Salmonella Enteritidis. He went ahead and shipped them anyway without a care to the millions of people he could have potentially sickened with Salmonella Enteritidis.