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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Seattle Cases

marler clark logoJack in the Box and Foodmaker, Inc. E. coli Litigation
More than 600 people were sickened, and four children died, following a 1993 outbreak of E. coli O157:H7 that was blamed on consumption of undercooked hamburgers from Jack in the Box restaurants in Washington and other Western states.
The outbreak was traced to ground beef from wholesaler Von Companies of California, and sold by Jack in the Box franchises across the West. Documents from Foodmaker, the San Diego-based parent company, showed that the company had been warned by local health departments and by their own employees that they were undercooking their hamburgers. But the company had decided that cooking beef to the Washington State standard of 155 degrees made the meat too tough.
The sickest victims were mostly younger children, including four who eventually died. A nine-year-old Seattle girl, who recovered after being in a coma for 42 days, won a $15.6 million settlement from the company. Bill Marler represented over 100 plaintiffs in the case, and Bruce Clark and Denis Stearns represented Foodmaker, the parent company of jack in the Box, in litigation totaling $50 million and spanning several years.
The widely-publicized outbreak and litigation led to widespread changes in food-safety practices at restaurants across the country.
Odwalla E. coli O157:H7 Litigation
Marler Clark represented most of the most-affected victims of an outbreak of E. coli O157:H7 traced to Odwalla apple juice in 1996. At least 70 persons were sickened, and a 16-month-old Colorado girl died, from drinking juice that was not pasteurized.
The sickest victims were children in Seattle, Colorado and Washington, D.C., several of whom suffered from hemolytic uremic syndrome and permanent kidney damage. Odwalla, based in Half Moon Bay, California, eventually paid a multi-million-dollar settlement to the victims and their families.
Odwalla had built its reputation for producing “fresh” juice with no preservatives. But investigators eventually concluded that its juices contained dangerously high bacterial contamination – so much that the U.S. Army had refused to buy Odwalla products.
The apple juice is believed to have become contaminated via apples that fell off trees and into cow manure before being harvested for juice. The case had a nationwide impact, demonstrating that food-borne illness can be contracted from fresh produce as well as meats.
Odwalla began pasteurizing its juices after the 1996 outbreak.
Sun Orchard Orange Juice Salmonella Litigation
During June and July of 1999, 15 states and two Canadian provinces had reported 207 confirmed cases of Salmonella infection associated with a single source. By early July 1999, 85 persons with this illness were identified in Washington State alone.
Epidemiological investigations by the health departments linked the outbreak of a relatively rare strain of Salmonella to unpasteurized orange juice products produced by Sun Orchard, Inc., an Arizona based company. Similar strains of Salmonella were eventually detected in unopened containers of Sun Orchard juice products, and in blenders where smoothies were made. Genetic matches were quickly established between the lab results of the stool cultures from victims and the Sun Orchard product.
Sun Orchard voluntarily announced a recall of all of its unpasteurized orange juice products on June 25, 1999. The Food and Drug Administration, on July 10, 1999, issued a nationwide warning to consumers against drinking unpasteurized orange juice products distributed under a variety of brand names by Sun Orchard, Inc. due to the continuing reports of illness related to the product.
Marler Clark represented 55 victims of the outbreak in a class action lawsuit against Sun Orchard. The firm settled the lawsuit for a reported $1.4 million.
Evergreen Milton-Freewater Rehabilitation Center Litigation
Marler Clark filed a wrongful death lawsuit against the Evergreen Milton-Freewater Rehabilitation Center on behalf of the family of an elderly resident who suffered debilitating injuries, which led to her death, in the rehabilitation center. Both of Naomi W.’s legs were fractured when an Evergreen employee who was transferring her from her bed to a chair let her fall to the floor. Following the fall, the employee did not seek medical attention for Naomi, but instead placed her back in her bed. Evergreen employees did not seek medical attention for Naomi for two days following the incident. Naomi passed away while she was undergoing rehabilitation for her earlier injuries.
The lawsuit asks that a jury award the estate of Naomi for her disability, pain, and suffering that resulted from her fall, and for expenses for medical services and memorial services.


Vehicle Accidents
In 2003 there were 6,328,000 car accidents in the United States. There were 2.9 million injuries and 42,643 people were killed in auto accidents. In addition, more than 38,000 motorcyclists died in single vehicle motorcycle crashes between 1975 and 1999. Every year, thousands more die or are seriously injured in crashes involving other vehicles.
At Marler Clark we handle automobile, truck, motorcycle, bicycle, and bus accidents whether they involve severe injury, death, or more modest injuries. Many of these cases require significant resources to show how the accident occurred and the damages that resulted from it. All such cases require careful work with medical providers and the willingness to stand up to large insurance companies. The attorneys at Marler Clark have vast experience in securing the best result possible. We are dedicated to providing great care in our representation and good communications with our clients.
Miller v. CDS Lines
In September 1999, 45-year-old Michael Miller had just completed truck driving school with his son, and they had purchased a tractor-trailer truck which they intended to drive together. The Millers had been driving for about a month when they were rear-ended on the freeway while driving a load through Nebraska. Another truck driver had fallen asleep in a truck behind them, and that vehicle sped forward at a high rate of speed, crashing into the back of the Miller truck. The impact was tremendous with the significant whiplash effect made worse by Mr. Miller’s seat belt straps.
Once the Millers were able to leave the accident scene, the Millers headed for Denver, where they both received medical treatment. Mr. Miller was diagnosed with multiple strains, was told not to do any commercial driving, and the Millers were forced to leave the truck and return home to Washington State by rental car. Mr. Miller was treated for headaches, shoulder and low back and hip pain for many months, and was unable to work during this time. Most of Mr. Miller’s injuries resolved, but fifteen months after the accident, Mr. Miller was forced to undergo complete left hip replacement surgery. Following his rehabilitation, he was left with continuing lifting restrictions, and a likely future additional hip replacement.
Marler Clark assisted Mr. Miller with a thorough accident investigation. The law firm also worked with Mr. Miller and his employer and care providers to ensure that he got the employment benefits and medical care he deserved while he was incapacitated, during the long period until his medical condition stabilized. Once Mr. Miller had returned to his maximum level of health, the case was settled for $187,500.
Robin R. – Bike Accident Litigation
Robin R. was an athletic wife and mother of three when an inattentive driver sent her to the hospital. Although Robin was a careful rider always on the lookout for motor vehicles, she could do nothing when an elderly motorist made a left turn directly in front of her while she was cycling near her home. Thrown from her bike, Robin was taken to Seattle’s Swedish hospital where x-rays revealed that her pelvis was fractured in three places. She also had a separated shoulder and numerous abrasions. While her fractured pelvis did not require surgery, it was exquisitely painful and required her to be immobilized in her hospital bed for nearly a week.
Discharged home in a wheelchair, Robin was bed-bound except for trips to the bathroom. Her husband was now in charge of their three young children while taking care of Robin. Recovery was slow and tedious. First, she was able to get around her home with crutches. Next, after eight weeks she was able to start physical therapy. All the time she was worried about her work as a freelance graphic artist. Fortunately, her previously excellent physical conditioning and determination allowed Robin a nearly full recovery, but only after many months of pain and physical limitations. While the insurer for the adverse driver disputed the extent of Robin’s injuries, we were able to obtain the full insurance limits of $100,000.
Wyman v. Berg, Detter
Ruby Wyman was an elderly woman in excellent health when she went shopping with her sister in April, 2002. Her sister was driving, and Ms. Wyman was the passenger. While proceeding westbound through a controlled intersection, a car driven at full speed southbound through the same intersection collided with the car occupied by Ms. Wyman, crashing into the front passenger side where she was sitting. Ms. Wyman had to be extricated from the car.
After being taken to the hospital by ambulance, Ms. Wyman was diagnosed with rib and hip fractures. While hospitalized, she developed pneumonia, and infections due to the intravenous medical treatment. She suffered from rib and hip pain, shoulder pain, shortness of breath, and debilitating weakness. She required oxygen therapy because of her inability to breathe properly due to her injuries. Due to her forced bed-rest and inability to move, she lost muscle strength and flexibility. Finally, after forty-three days of hospitalization, she was discharged to a nursing home for rehabilitation, which continued for an additional eight days. On her return home, she worked hard to regain her former health, but was hampered by her reduced endurance and continuing problems with breathing. She was ultimately diagnosed with a permanent reduction in her capacity to breathe properly.
Liability was hotly contested by the drivers of both cars. Each claimed the light was green when they entered the intersection. There were only two eyewitnesses, and each thought that a different driver had the right of way. Marler Clark conducted a thorough investigation of all the relevant facts, developing evidence of negligence by both drivers that contributed to the accident. Shortly before the day of trial, the case was settled for a total amount of $350,000.
Miller vs. Pilchuck Contractors
In November, 1999, Martin Miller was employed as a full-time commercial truck driver for a local trucking company, a job he had been doing for about twenty years. On November 16, 1999, Mr. Miller was assigned to deliver a load of plastic pipe to a construction site. At the site, while he was on one side of the truck, loosing a strap holding down the load, an employee of a contractor at the site volunteered to help, and, without letting Mr. Miller know, loosened the straps on the other side of the truck and of the load. The plastic pipe now had nothing to hold it in place, and the pipe rolled off the truck, striking Mr. Miller on the head. He lost consciousness for a minute, and suffered head wounds. Once he was taken to the hospital, he was diagnosed with scalp lacerations, a closed head injury, and cervical strain.
Mr. Miller subsequently started to suffer from extremely severe headaches, double vision, and dizzy spells. He also started experiencing temporary black-outs, that forced him to stop driving truck in December, 1999; he was never able to drive a truck again. Mr. Miller underwent a number of examinations and tests by different medical specialists over the following months, to identify the cause of his continuing vision problems, headaches, and blackouts. Ultimately, it was determined that he had suffered a significant brain injury, causing him continuing posttraumatic headaches, chronic double vision, lapses in memory, and decreases in hearing, smell and taste. He was no longer able to pursue his truck driving career, and had limited other options, given his education and work experience.
The defendant contractor contested liability, and litigation was commenced. Marler Clark investigated the accident facts and retained experts in the trucking industry to assess the actions of the various people involved, establishing the evidence of the negligence of the contractor’s employee. In addition, Marler Clark assisted Mr. Miller in his period of rehabilitation and physical and mental recovery by ensuring that he was treated by the appropriate doctors, and that he received the maximum benefits available. Ultimately, after months of litigation, the case was settled for the amount of $550,000.
Union Pacific Railroad Accident Litigation
At the time of her accident, JoAnn Beffert was an energetic and hard working supervisor at a railway cargo terminal. In February 2001, Ms. Beffert was parked in her pick-up truck in the Seattle Union Pacific railroad yard, waiting to give a co-worker a lift. Suddenly, a wheel on a 175,000 pound “piggy packer” crane, a crane used to load and unload containers off railroad cars, broke through a concrete lid on the yard surface, causing the crane to tip over. The crane crashed onto its left side, landing squarely on the pick-up truck, and crushing it. The dashboard of the truck pinned down Ms. Beffert’s legs, and she was unable to move. It took over four hours, and two attempts by the rescuers at the scene with another heavy duty crane, before the fallen crane was lifted up enough to extract Ms. Beffert from the wreckage.
Ms. Beffert suffered numerous fractures of both legs and knees. Following surgery to both legs, Ms. Beffert remained hospitalized for 12 days, and was then transferred to a rehabilitation center, where she remained for an additional 14 days. Despite aggressive rehabilitation efforts, Ms. Beffert was unable to return to work for over a year from the accident date. She remained with some limited motion in her legs, significant scars, degenerative arthritis in her hip, and continuing instability and pain in her right knee.
Marler Clark, on Ms. Beffert’s behalf, thoroughly investigated the accident facts, retained engineering and construction site experts, and determined that the Union Pacific had failed to properly prevent heavy machinery such as the crane from moving over and parking on the concrete lid which eventually failed, causing the crane to tip over. The railroad contested its liability, a lawsuit was filed, and litigation continued for many months. On the eve of trial, the case was settled for the sum of $1,000,000.
Leigh L. – Bike Accident Litigation
In 2001, Leigh L was a 28 year-old competitive tri-athlete working toward a Ph.D. in industrial psychology when a collision with a car while bike riding derailed her life. On a pleasant Seattle afternoon, Leigh was training with a friend when a young inattentive driver made a left turn directly in front of her on a residential street. Thought the impact occurred at relatively low speed, Leigh’s helmeted head still left a dent in the SUV’s frame. The impact threw Leigh off her bike and onto the pavement where she lost consciousness for several minutes. Evaluated at Harborview medical Center, Leigh was released the same day with a diagnosis of a concussion and a shoulder injury of undetermined severity.
Only the passage of time would reveal that Leigh’s “mild” traumatic brain injury would have profound effects on her cognition, including her memory, ability to focus, and to follow sequential directions. Her husband was shocked to see the degree to which his wife’s well-honed mind was struggling to work. Leigh ended up attending an out patient cognitive rehabilitation facility for over two months. While she went on to obtain her Ph.D., it was a constant struggle to cope with her impaired ability to concentrate and now constant headaches. To make matters worse, her shoulder injury turned out to be serious and the source of chronic pain. Leigh’s extensive recovery from her injuries is a testament to her drive and determination.
We filed suit to prevent the running of the statute of limitations and then prepared an extensive, well-documented demand package that covering all aspects of Leigh’s case. This included input from her treating orthopedist, a neuropsychology we sent her to in order to evaluate the nature and extent of her brain injury and a vocational expert who evaluated the impact of the brain injury on Leigh’s ability to work in the future. In a typical move, the driver’s insurance company had Leigh evaluated by its own experts who concluded that she was essentially unchanged from her pre-accident status. Only after extensive negotiations, and one mediation which failed to resolve the case, were we able to convince the insurer to pay a sum commensurate with Leigh’s injuries. Her case is a reminder that many injuries do not become fully apparent until considerable time has passed and a rush to settlement can be disastrous for the unrepresented accident victim.
Louth v. King County
In August, 1994, William Louth and Jorge Turincio were beginning the fifth straight day of a 12-hour, late-night shift repairing loose tiles on the Kingdome ceiling when a crane bucket lifting them inside the Kingdome hit the ceiling. Louth and Turincio plunged 250 feet to the Kingdome floor. Both men died.
Bill Marler represented the family of William Louth in a wrongful death action against two contractors charged with the negligent death of Mr. Louth. A lawsuit was brought in US Federal District Court against Ness Crane Service Inc. and Pacific Components Inc. The suit alleged that Ness Crane, the crane operator, and Pacific Components, the general contractor, failed to comply with safety regulations.
Pacific Components was fined $10,450 and Ness Crane $16,300 for violations found during a subsequent investigation by the state Department of Labor & Industries. Long Painting Co., the men’s employer, was fined $12,290. Each company has appealed the citation.
The suit was settled for an undisclosed amount.
Schuerhoff v. Schrader, et al.
In January, 1996, 17-year-old Michael Scheurhoff was pushed to his death from an abandoned railroad trestle in Bothell, Washington.
In criminal proceedings, Steven Garza, Benjamin Drake, and Lawrence Edinger were acquitted on manslaughter charges. Tyler Wheaton pleaded guilty to rendering criminal assistance, and Brian Schrader was sentenced to 20 years in prison for pushing Michael from the tresle.
Bill Marler filed a wrongful death suit against Schrader, Edinger, Drake, Garza and Weaton, and their parents, for the death of Michael Schuerhoff, on behalf of the Scheurhoff family. The suit contended that the five boys pushed Michael to his death from the abandoned trestle, and then failed to rescue him, allowing him to drown in the Sammamish River in Bothell.
The lawsuit was settled after extensive discovery.
Almquist et al. v. Finley School District, 114 Wn.App.395, 57 P.3d 1191 (2002)
This appeal involved a $4.6 million dollar verdict that Marler Clark attorneys had won on behalf of eleven elementary school children injured in E. coli O157:H7 outbreak linked to undercooked ground beef used in tacos sold as part of a school lunch. The defendant school district appealed, trying to get the verdict reversed. The school district argued that Washington’s Product Liability Act did not apply to it, and that preparing tacos for a school lunch did not make the school district a manufacturer like other restaurants might be. The Court of Appeals rejected this argument, and held that school districts that sold school lunches should be held to the same safety standards as every other restaurant in the state.
O’Connor v. Washington Department of Social and Health Services, 143 Wn.2d 895, 25 P. 3d 426 (2001)
This groundbreaking appellate decision resolved the issue of whether state agencies could refuse to disclose public records relevant to a lawsuit under the Public Records Act, and instead require the person seeking the public records to obtain them in the lawsuit by way of discovery request. Refusing to accept the agency’s refusal to disclose public records, the attorneys at Marler Clark asked the Washington Supreme Court to resolve the question by granting direct, discretionary review”something the Court rarely does. Granting such review, the Supreme Court sided with the position advocated by Marler Clark, handing its client huge victory, while also creating an important precedent on behalf of every other person in the state seeking the disclosure of public records relevant to a lawsuit against a public agency.