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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The Packer’s Tom Karst – Listeria chat with Bill Marler: 100% likely to bring everybody in

Screen Shot 2011-11-03 at 4.53.07 PM.pngThe Packer

I had the chance to chat Nov. 1 with Bill Marler, Seattle, Wash.-based lawyer the food safety law firm Marler Clark. Here is the first part of the conversation.

2:00 p.m. Tom Karst: Looking at the Food Safety Modernization Act, from your perspective as a food safety lawyer, does that law change anything about how you approach (food safety liability) cases? In your view at least, does it change who is responsible and who is liable compared to previously?

2:01 p.m. Bill Marler: From a liability perspective, there is nothing in the law that changes anything from who is more or less liable to the person who gets sick. There is no change that shift the burden from one entity to another entity as it relates to the person who gets sicks. But that doesn’t necessarily mean that what happens in litigation isn’t going to be impacted by the Food Safety Modernization Act. Frankly, if the Food Safety Modernization Act is implemented in full, in many respects like the Leafy Greens Marketing Agreement is implemented, what I think we hope we see, is frankly less litigation because we will see less people getting sick. And so, I’m hopeful that will have a bigger positive impact on the consumer. It might have a negative impact on my pocketbook, but it will have a positive impact on the pocketbooks of companies I would have otherwise sued.

2:02 p.m. Karst: You are involved with the (Jensen) cantaloupe case. What makes that case notable in your perspective. I know every outbreak is different in ways, but what are the unique things about this one that you see?

2:04 p.m. Marler: From a personal perspective – more so than from a legal perspective – it is just sort of stunning of the number of people who have died and the number who are still hospitalized. I think for me personally, I have spent so much time over the last couple of weeks talking to families of someone who died, the husband or wife of someone who died, or a young couple that has lost a baby, or families who are still watching their loved one in ICU going on eight or nine weeks. I think about this listeria outbreak is that I’m sort of stunned by the severity of the outbreak and that’s a hard thing to quantify. From a food safety perspective, I can’t say I was shocked by the outcome of the FDA inspection. Listeria likes cooler, wetter environment. When you are looking at eastern Colorado and cantaloupe growing, and cooler wetter environments only make sense inside a packing house. So I guess I wasn’t shocked by the FDA’s findings of positive samples and bad practices. Most outbreaks I have seen in 18 years of doing this are caused by people doing bad practices, doing things that frankly they all know they shouldn’t do but they do them anyway or they are not paying attention to details. I think that is what you got here.

2:07 p.m. Karst: In many of these cases, it seems as if there are third party audits in place. From that perspective, you could say they were taking care of the food safety issue. Why do things go wrong?

2:08 p.m. Marler: There are two questions there. One is that things go wrong like this because of multiple, multiple, multiple, examples, some more or less egregious. You look at the Peanut Corporation of America, having a badly managed plant and shipping product that you know is contaminated with salmonella, I don’ think you can disagree that that is a bad practice. In the Wright County egg outbreak, 3,000 people were sickened and half a billion eggs were recalled and I go visit that plant and saw eight feet tall piles of chicken (droppings) pushing out the doors. I haven’t been into the Jensen Farm packing plant, but you look at the FDA report and I think even the California cantaloupe growers have been pretty vocal in their condemnation of Jensen Farm practices. Then you take those three examples and you compare them to the third party audits that were done on each of those places and you ask yourself, gee, were these auditors and FDA people in the same facility? And so I have a great deal of concern about third party audits, primarily based on the facts of what I have seen the last decade, of third party audits not catching things were being done at or during and outbreak and coming to completely different conclusions to eventually what you see on the ground. I just think that the third party auditing system has got some real flaws, and I think in order to get the incentives correct, I think these audits need to be owned and required by an entity closest to the consumer. So I think these audits should be required and known and paid for by the retail outlet or the broker/shippers in a position that is close to the consumer that in a sense has the consumers’ back. Because right now, what you see are audits being performed and paid for by the entity that has the most interest in having a clean bill of health. I have a lot of concerns about audits.

2:09 p.m. Karst: Say if a retailer did that, wouldn’t that expose him to more liability from someone like you?

2:10 p.m. Marler: Nope. Not at all.

2:11 p.m. Karst: But you have talked about looking at the whole supply chain when you are talking about these food safety lawsuits..

2:11 p.m. Marler: Sure, but let’s put it in context. It varies a little bit from state to state, but generally speaking the chain of distribution from the farmer to the retailer bears some responsibility for the manufacturing, shipping, production and sale of a contaminated food product. And also, between the chain of distribution and the consumer, the chain of distribution – individually or collectively – can claim the consumer mishandled the product. You didn’t wash your cantaloupes, you didn’t cook your meat, you didn’t wash your triple washed bagged lettuce; whatever defense they want to raise by blaming the consumer, everybody in the chain of distribution has some role to play in food safety. And that same issue gets played out in the court room. What my practice has been in the last decade is to go after the entity that has the most opportunity to fix the problem before it became a big problem. Generally speaking, that’s the manufacturer. It is not necessarily the farmer, it is usually the entity that collected stuff and put everything together. It varies from state to state and outbreak to outbreak, but then my practice is really sort of focus on the entity that had the last best opportunity to fix the problem before it became a big one. In a perfect world, that makes a lot of sense but looking at this cantaloupe outbreak, it makes it difficult to do that. If you sort of line up Jensen Farms, Frontera, the auditor, the grocery store, the victim and set them all on a couch and say, Okay, collectively you guys are 100% at fault – how am I going to divide it up? And I think most people would look at it and go, you know Jensen Farms, they are the ones that are most at fault, and the rest of these guys have some other level of fault. Maybe some people said the consumer had no responsibility, other people say the consumer had responsibility. People can argue about that and that is what they do in the court room. I think we all could agree that Jensen Farms as the manufacturer, reading the report from the FDA, is the entity that screwed this up. The problem is that Jensen Farms has $2 million in insurance and not enough assets. When you are dealing with 130 victims so far and probably by the end of the week it will be 140 or 145 and instead of 28 deaths and a miscarriage it could be 30 deaths and a miscarriage. You look at Jensen Farms with $2 million in coverage and not enough assets and say there is not enough money. So then you have to look and say who else is responsible for this problem? Frontera – they had their name on it and they were the packer/shipper and they have responsibility, and same with the auditor. Now we may not have a great direct claim against the auditor, but Frontera does and they may certainly bring in the auditor. Then there is the retailer. They probably look at themselves as victims too, but as between the person who bought the cantaloupe in the grocery store, who is more of the victim? And does a grocery store have an obligation to its consumer to not sell them products that are contaminated and from entities that have limited assets and insurance. That’s why it is 100% likely that this cantaloupe outbreak is going to bring in everybody in this outbreak, including the retailers and the auditor and Frontera and Jensen Farms because that’s the only way that the victims – whom we all would agree have far less culpability than the other side of the equation – that’s the only way that these people are going to be fairly treated. But it’s going to be a battle.

  • John Munsell

    I must agree that the entire farm-to-fork continuum must share some degree of accountability for foodborne illnesses. When litigation gets to the nitty-gritty to determine levels of accountability, we need to copiously examine and discuss the ability of “middle men” to (a) detect and (b) remove pathogens, primarily invisible, from food. One sentence above states “And does a grocery store have an obligation to its consumer to not sell them products that are contaminated…” Well, there is one procedure grocery stores could utilize to provide perhaps a 90% guarantee that all produce & meat is safe, and that is to microbially test all produce and meat. Costs would be prohibitive, and I doubt that consumers would pay the additional and substantial increase in price to test all food. If only a portion of the food were tested, all we would know is that a “representative sample” tested negative, with absolutely no guarantee that the rest of that case of canteloupe/lettuce/eggs/peanut butter/ground beef is likewise pathogen free. What if a retailer microbially tested 3 canteloupe in a large combo of canteloupe, and the tests were negative for pathogens. Subsequently, a customer purchases one of the remaining canteloupe, gets sick and/or dies, then do we hold the retailer accountable for his alleged negligence in not testing 100% of the canteloupe? And if we test 100% of our ground beef, there will be no ground beef left to sell.
    The exact same scenario has been playing itself out in the red meat industry. USDA/FSIS now expects downstream further processing plants to validate that meat purchased from source slaughter provider plants is safe, and not carrying any invisible adulterants and contaminants. The official FSIS stance is that all accountability for killer pathogens goes downstream along with the pathogens which reside on meat packed in cases bearing the official USDA Mark of Inspection which states “USDA Inspected & Passed”. FSIS openly admits that source slaughter plants can legally ship into commerce intact cuts of meat which are “merely” surface-contaminated with E.coli O157:H7. By strict agency definition, these pathogen-laced intact cuts of meat have indeed been Inspected & PASSED by USDA. Yup, USDA Inspected & PASSED pathogens.
    Americans, when will we wake up? Until we force the source manufacturers to produce safe products, outbreaks and recalls are virtually guaranteed. Government agencies and manufacturers alike should dramatically increase microbial testing AT THE SOURCE. When test results prove (Yes FSIS, test results “VALIDATE”) a plant’s consistent compliance with safe food protocol, the frequency of the testing can diminish, sometimes greatly.
    What should our attitude be regarding corrective actions required at the middle men whose microbial test results reveal that the middle men unwittingly purchased previously-contaminated food? If Costco/WalMart/Safeway/Wegmans etc discover unsafe eggs/canteloupe/ground beef at its stores, are consumers’ best interests improved by mounting aggressive enforcement actions and litigation against these victimized downstream entities? FSIS replies with a resounding “YES!” History has shown that FSIS employs tactics which prevent tracebacks to the SOURCE. Is FDA the same way? I don’t know.
    What I do know however is that if we are truthfully concerned about the long-term improvement of public health imperatives, we need to find the SOURCE of food contamination, and then force that source facility to make meaningful changes. Testing downstream can be helpful to ensure that the source plants are still producing safe food, and to determine if the middle man is introducing contaminants, which can happen, but to a much smaller degree than is found at the manufacturing source.
    By the way, on August 3, USDA Secretary Tom Vilsack gave FSIS 90 days to announce the first step in transforming their traceback policy. It is now past 90 days. Has anyone seen any report of the agency’s response to Sec Vilsack’s mandate? I find Sec Vilsack’s mandate to be inanely surreal. Back in March, 1998, over 13 years ago, FSIS issued a document entitled “Guidance for Beef Grinders to Better Protect Public Health”. This document included 21 referrences to the terms traceback, trace back, trace forward, trace, tracking, tracing, tracking system, and traceability. So, for PR purposes, the agency has endorsed the idea of tracebacks since HACCP was implemented by the meat industry. Ain’t it odd that in 2011, over 13 years later, that the USDA Sec finds it necessary to require the recalcitrant FSIS, at this late date, to design a credible traceback system?
    As long as gov agencies employ diversionary and legal tactics which create artificial roadblocks preventing a traceback to and a determination of the true SOURCE, outbreaks will proliferate, and Bill Marler will more more business than he can shake a stick at.
    I continue to contend that pathogens are NOT our primary enemy here! Public enemy #1 is any government agency which gives the middle finger to the idea of tracing back to the SOURCE. Unless Sec Vilsack has his way, we’d better morph our immune systems to enable us to consume more pathogens and yet survive.
    I know that FDA has authority over canteloupe. But if FSIS had the authority, would it surmise that the 29 funerals caused thus far by listeria-laced canteloupe are “USDA Inspected & Passed”?
    John Munsell

  • Dan Cohen, Maccabee Seed Co. Davis CA

    Three points:

    (1) Inspection.

    After the spinach crisis the FDA was supposed to increase it’s inspection of the largest produce handlers, where a frequency of one inspection per twenty years was theoretically possible.

    What should have been the role of state and/or county health inspection, the first line public health responders, as opposed to the third party auditors, or the FDA?

    And…the spinach crisis did lead to end-buyer-led standards and auditing. Unfortunately this led to a competition for “supermetrics”. The LGMA tried to be a kind of safe harbor under a handler led market order. End users can control and have controlled auditing in the past, with great clout; in the LGMA case mainly replaced by government inspectors operating under the LGMA rules.

    You don’t need an LGMA structure to pay for and create better competent government public health inspection, just raise the money with a case or weight fee and pay for increased county or state inspection. The Rocky Ford growers may want to do this. Public health agencies could use the money.

    (2) Liability.

    The smallest farms and businesses I work with all carry a minimum $1 million dollar liability policy while having sales that are a tiny percentage of Jensen Farm’s. Shouldn’t the low liability have been an easily known red flag for anyone in the chain between producer and consumer? Does this increase their own potential liability? Could state or interstate requirement for carrying liability for a grower/packer/shipper, on the other hand, have led to insurance company driven auditing where finding problems is the goal, not delivering clean paperwork?

    (3) Listeria on whole cantaloupes.

    How many packing operations for cantaloupes are roughly the same size as Jensen, and how many do any better at protecting against listeria, never before found on whole cantaloupes? Was there ever a Guidance on listeria and cantaloupes for that matter? One danger of crop specific guidelines is that they will systematically miss the unexpected. Yet a general inspection, with a checklist of hazard conditions for multiple pathogens, might have taken the listeria potential more seriously.

    Critical airplane checklists were innovated by the late Curtis LeMay, trying to keep his planes in the air, and his men alive, at least until they were shot down. Recently, air plane models of focused checklists have been added to specific hospital practices with significant success.

    The concept is scale and technology neutral, any farm size could use them. The problem is the focus, knowing what is critical, not requiring hindsight as a method to find out. Paperwork is only the record or residue of a system that works, not the system itself. Sometimes inspection and auditing in produce seems to have this backwards.

    And…the environmental source of the outbreak listeria strains still needs to be identified: why this unique outbreak on this operation? Unless one can show that Jensen was unique in it’s failures on cooling, washing, packing and shipping. They provided one point in the disease triangle — a favorable environment — but many others may be doing the same thing now. Was the introduction of listeria to a favorable environment inevitable?

    If so, why is this the first case, because really, one wants it to be the last.

  • Sam

    Halleleujah brother!!!!!
    It’s way past time for food manufacturors to take ownership of the audit process. If you can successfully show liability of Primus labs, it will be the best thing ever to happen to food safety.

  • Neal

    Excellent interview. Thank you.