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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Secondary E. coli Cases Can Kill

In early May 2009, the Ohio Department of Health (ODH) identified a cluster of E. coli O157:H7 infections.  See Email re: Cuyahoga County E. coli, PulseNet Cluster 0905HE…, Attachment No. 1.  Bacterial isolates obtained from the stool cultures of three case-patients were a two-enzyme genetic match using pulse-field gel electrophoreses (PFGE).  See May 26, 2009 E. coli O157:H7 Cuyahoga County PFGE, Attachment No. 2.  The PFGE pattern combination was uncommon, making it easier for the ODH to suspect a common source for the three cases of illness.  See Email re: Cuyahoga County E. coli, PulseNet Cluster 0905HE…, Attachment No. 1.

The ODH began an epidemiologic investigation into this cluster of infections.  Investigators determined that all three cases had consumed ground beef during the week before symptom onset.  (Ground beef is a well-recognized vehicle for E. coli O157:H7.)  Two of the three case-patients ate ground beef prepared and served at the Veterans of Foreign Wars 7647 (VFW) hall during the week prior to disease onset.  One case-patient consumed a rare hamburger at Deeker’s restaurant located in Mentor, Ohio.

John Strike, Abigail Fenstermaker’s grandfather, reported that he ate “chipped” (ground) beef served at the VFW on April 10 and April 13.  The other case patient reported eating a hamburger at the VFW on April 10.  See ODH Standard Inspection Report, Attachment No. 3. Invoice records show the VFW received shipments of 3S-brand lean ground beef from Brandt Meat Company on April 2, and April 9, 2009.  Brand Meat also delivered two shipments each day of “Natural Klub Burger” to the VFW.  See Brandt Meat Company Invoices, Attachment No. 4.

The third case-patient ate a “red burger” at Deeker’s restaurant on April 10, 2009.  The ODH found that Deeker’s also received Klub Burgers from Brandt Meat Company.  See Email re: E. coli Cluster 0905 OH EXH-1, Attachment No. 5.  This finding that a common meat supplier provided meat to both the VFW and to Deeker’s prompted a United States Department of Agriculture (USDA) investigation of the meat manufacturers that supplied Brandt Meat Company.  The USDA investigation found the source processors of the meat used to make the suspect ground beef was Valley Meats LLC.  As a result, a recall was announced of Klub ground beef products, 3S brand ground beef products, and other non-brand specified ground beef products.  See ODH May 21, 2009 Recall Announcement, Attachment No. 6. See also May 21, 2008 Recall Announcement from USDA/FSIS, Attachment No. 7.

Ohio health officials later identified a fourth member of the outbreak.  Abigail Fenstermaker, John Strike’s grand-daughter, also tested positive for the outbreak strain of E. coli O157:H7.  She was noted to be a “secondary” infection.  In summary, an outbreak of E. coli O157:H7 associated with consumption of Valley Meats LLC occurred in northern Ohio in April 2009 resulting in a USDA recall.  Three primary cases, including John Strike, were identified in April.  A secondary case, Abigail Fenstermaker, was diagnosed in early May 2009.

Valley Meats was strictly liable to the Fenstermakers for the death of their daughter, Abigail.  More specifically, under Ohio law, the manufacturer of a defective product is strictly liable for all damages proximately caused by the product.  Ohio Rev. Code. Ann. §2307.73(A).  A product is defective where it deviates in any material way from “design specifications, formula, or performance standards of the manufacturer, or from otherwise identical units manufactured to the same design specifications.”  Ohio Rev. Code. Ann. §2307.74.  All ground beef contaminated with E. coli O157:H7 is per se adulterated.  Kriefall v. Excel, 265 Wis.2d 476, 665 N.W.2d 417 (2003) cert. denied, 124 S. Ct. 1656 (2004); Texas Food Indus. Ass’n v. Espy, 870 F.Supp. 143 (W.D. Tex. 1994) (upholding USDA retail-sampling and zero-tolerance E. coli O157:H7 policy.)  There was, as a result, no question that the ground beef that Valley Meats sold was defective.

The only remaining inquiry, then, was the causal link between Valley Meats’ defective product and Abigail Fenstermaker’s death.  That link was beyond dispute – Abigail’s E. coli O157:H7 infection and subsequent death directly resulted from her exposure to her grandfather after he had developed an E. coli O157:H7 infection.  Mr. Strike’s E. coli O157:H7 infection was plainly linked to his consumption of Valley Meats’ ground beef.[1]

At the time of his illness, John Strike lived with his daughter and her family, including his granddaughter, Abigail Fenstermaker.  On numerous occasions, the last being on May 3, 2008, Abigail visited her ill grandfather at the hospital.  As noted above, John Strike had been hospitalized after consuming ground beef manufactured by Valley Meats.  He then subsequently developed an E. coli O157:H7 infection, with a strain genetically matching two other Ohio residents.  Both of these other ill persons had also consumed ground beef manufactured by Valley Meats.

On May 8, 2009, granddaughter, Abigail Fenstermaker, became ill with symptoms consistent with an E. coli infection.  A stool specimen collected from Abby on May 11, 2009 was positive for E. coli O157:H7, and PFGE analyses confirmed that Abigail was infected with the Valley Meat “outbreak strain.”  See May 26, 2009 E. coli O157:H7 Cuyahoga County PFGE, Attachment No. 2.

She died as a result of her infection on May 17, 2009.[2]

See Abigail’s video at Occupy Food Safety.


[1]           Court’s have previously recognized that food manufacturers are liable to those who are injured through “secondary” exposure in foodborne illness outbreaks.  Almquist v. Finley Sch. Dist. No. 53, 114 Wn. App. 395, 57 P.3d 1191 (2002).

[2]           Outbreaks of foodborne illness nearly always involve both primary and secondary cases, meaning that secondary cases are neither unusual nor rare.  More importantly, a secondary case is, by definition, part of an outbreak.  To an epidemiologist, the person who defines the outbreak, what is definitive is whether a person is infected with the outbreak strain.  Person-to-person transmission of infectious bacteria within a family is well-documented.  See, e.g., K. Ludwig, “Outbreak of Escherichia coli O157:H7 Infection in a Large Family,” Eur. J. Clin. Microb. Infect. Dis. 16:238-41 (1997).  P. Rowe, “Diarrhea in Close Contacts as a Risk Factor for Childhood Hemolytic Uremic Syndrome,” Epidem. Infect. 110:9-16 (1993).