Bill Marler, a litigator who specializes in representing plaintiffs who were sickened by food-borne pathogens, said he is in the enviable position of not having to prove fault. But when he explains that to food growers, packagers and distributors during settlement discussions, he often has a problem getting his adversaries to understand.
"The concept of strict products liability, especially as it relates to food, is always a little bit difficult for defendants to get their heads around," Marler said. "It’s not like an auto accident where both sides say the light was green. In these instances, the light is always green for me."
Once the food companies and their insurers understand the concept that they are liable if they are in the chain of distribution, no matter where in the chain the contamination occurred, the focus shirts to damages and what a jury would be likely to award, Marler said.
Marler recently settled a large group of cases on behalf of customers who purchased tomatoes contained in salads or sandwiches at Sheetz convenience stores and became ill with salmonella poisoning over the Fourth of July weekend in 2004. In the tomato cases, 429 confirmed salmonellosis cases were identified in nine eastern states, according to the Centers for Disease Control. Marler represented the majority of the plaintiffs and brought claims against Sheetz Inc., Altoona, Pa., and Coronet Foods Inc., Wheeling, W. Va., the firm that packaged the tomatoes.
People with salmonella poisoning can suffer a range of illnesses, from mild gastroenteritis to symptoms severe enough to require hospitalization. In rare cases, victims can die. However, in the case of the tomato salmonella outbreak there were no deaths.
So far, Sheetz settled almost every case with the clients Marler represents for confidential amounts, Samaratunga v. Sheetz Inc. Only one lawsuit is pending in Pennsylvania state court.
This year, Marler’s firm is once again busy representing victims of food-borne illnesses after a nationwide recall of spinach that was tainted with the E.coli bacteria. Marler represents 96 claimants in 26 states.
Marler also spends time counseling his potential adversaries on how to make the food supply safer, through his nonprofit corporation, OutBreak Inc.
"I’ve taken close to $300 million from the food industry for my clients," Marler said, "but I don’t have a burning interest to own a jet."
Marler gave an example of his approach to settlement in another set of cases involving contaminated lettuce.
"I went into mediation and all the defense attorneys were pointing fingers at each other, so I put my head down on the table," Marler said.
When the mediator asked him if he was okay, Marler said to the distributor in the lettuce case, "In a few months your insurance company is going to settle and then the rest of you are going to settle and until then you’re going to keep fighting me."
Marler then stood up and announced, "But I’m in Seattle, it’s a beautiful day and I’m going to the beach."