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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Timing is everything – Cargill sues supplier over 2007 E. coli Outbreak

article-page-main-ehow-images-a07-ss-81-happens-sued-loan-company-800x800.jpgWell, Cargill has not yet responded to my offer – “Marler Clark to Cargill: Start Testing and We Won’t Sue You” – but they certainly do not seem adverse to lawsuits.

AP reported Friday that Cargill Meat Solutions filed a lawsuit against Greater Omaha Packing Company over a 2007 E. coli O157:H7 beef recall.  Friday’s filing in U.S. District Court in Omaha says Greater Omaha sold tainted beef to Cargill that were unknowingly processed into ground beef and sold to the public. About 845,000 pounds of the beef was recalled in August 2007 after consumers developed E. coli illness (actually closer to 2,000,0000 pounds in total).  Cargill’s lawsuit says Greater Omaha Packing violated the terms of its sales agreement by selling bad meat.

As I said in an earlier post, we filed multiple lawsuits against Cargill on behalf on most of the severely injured in the outbreak that sickened dozens in several states.  The most grievously sickened victim was Stephanie Smith, who developed HUS and spent months in a medically induced coma.  The former dance instructor was paralyzed from the waist down, and both her kidney function and cognitive abilities were impaired.  Michael Moss of the New York Times won a Pulitzer Prize for the article he wrote about Stephanie Smith and the background of the beef that went into the burger that made her sick.  Her lawsuit was settled in May 2010 for an undisclosed sum.

  • John Munsell

    Cargill’s suit against Greater Omaha Packing is an interesting case. In this 2007 situation, Cargill was not the source originating slaughter plant, but merely a downstream establishment which purchased meat products from the slaughter plant, that is, from Greater Omaha Packing. What difference does this make?
    The 2007 recall mentioned above was for E.coli O157:H7. E.coli and Salmonella are “Enteric” bacteria, which are defined as originating from within animals’ intestines, and by extension, proliferate on manure-covered hides. Other bacteria, such as listeria, are not enteric, but are “environmental”, meaning they can be found anywhere. So what?
    When an outbreak occurs which was caused by enteric bacteria, public health interests are best protected if a traceback would occur which would reveal the slaughter plant where the live animals were killed, since the enteric pathogens originated from those animals. Admittedly, enteric bacteria can also be introduced later in the downstream food chain, but at a much, much lower incidence compared to enteric pathogens contaminating the food at the original abattoir.
    When my plant recalled 270 lbs ground beef in 2002 because it was potentially contaminated with E.coli, I had no idea that E.coli was enteric, or even what the term “enteric” meant. And this was after I had owned the slaughter/processing plant for 31 years at the time. I’ve since discovered that almost all Americans have no idea what the term “enteric” means. But a knowledge of the term, and its implications on food safety are essential if we are to ever gain the upper hand on these enteric pathogens.
    A previous Marler blog yesterday or today included a historical list of recalls involving Cargill/Excel/Empak etc. One outbreak emanating from Cargill meat occurred at a Sizzler’s restaurant, where a young girl died who did NOT eat any meat at a Sizzler’s restaurant. The girl ate from the salad bar, where watermelon had been cross-contaminated in the Sizzlers kitchen caused by residual bacteria remaining from the kitchen staff processing Beef Tri Tips purchased from the Excel plant in Fort Morgan, CO. In the ensuing litigation against Excel, the meat industry made the argument that since USDA/FSIS allows packers to ship into commerce intact (uncut) cuts of meat which are surface-contaminated with E.coli, that Excel could not be held accountable for the presence of the E.coli at Sizzlers. After all, the Beef Tri Tips are intact cuts, so could legally be surface contaminated with E.coli, according to the USDA. What is the significance of this technical jargon?
    USDA knowingly allows source slaughter plants to ship into commerce intact cuts of meat which are ONLY surface contaminated with e.coli. These intact cuts are destined for downstream entities like Sizzlers, restaurant cafeterias, nursing homes, retail meat markets (Safeway, Costco, etc), and home kitchens. USDA’s position is that all liability for the presence of the E.coli, and responsibility to detect and remove the e.coli, rests solely upon the shoulders of the downstream entities. Interesting, because although neither the USDA nor the source slaughter plant were capable to either detect or remove E.coli at the slaughter plant, USDA now expects that downstream entities perform these functions, even though the pathogens are invisible.
    Furthermore, most intact cuts are further processed at downstream entities into steaks, roasts and ground beef. And USDA is fully cognizant that intact cuts are further processed. Rather than protecting public health interests by classifying E.coli as adulterants whenever found on meat, USDA is much more comfortable placing all responsibility for pathogen detection and removal on the downstream destination customers. To do otherwise would force the agency to challenge the big packers with enforcement actions, responsible actions which I’ll never see in my lifetime, or as least as long as the current top USDA officials remain ensconced in their isolated ivory towers.
    Also, USDA remains blithely aloof to the fact that when downstream customers further process intact cuts, that cross-contamination of kitchen equipment is highly likely, precisely what happened in the Sizzlers case. We unwittingly spread lethal and invisible pathogens onto our hands, utensils, counter tops, sinks, floors (where toddler Susie is active), plates, etc, almost an inevitability. USDA could care less, continuing to insulate the source slaughter plant from accountability for the very presence of these E.coli bugs, while castigating the destination consumer for their alleged insanitary food handling protocol. Yup, education is the answer: not at the source, but at the destination!
    If Congress ever finds out about the above conundrum, countless heads should roll at the agency.
    So, in the 2007 outbreak, Cargill was but the downstream consumer. Usually, Cargill is the source originating slaughter plant, and in fact is one of the Big 4 packers in America. The only way justice will be served, while promoting public health, is for USDA to aggressively traceback to the slaughter house SOURCE of enteric bacteria, and forcing the source to implement corrective actions. USDA Sec Tom Vilsack gave a speech in Milwaukee last Wed, demanding that FSIS engineer meaningful traceback protocol, while stressing PREVENTION. What Sec Vilsack did not address is whether he expects the source slaughter plant to be responsible for prevention of E.coli contamination of meat, or does he expect the downstream consumer to be responsible for prevention, as is the case now. I hope that Sec Vilsack intends for the SOURCE to be accountable. I’m not holding my breath. The most formidable opponent he will face in the Traceback arena is his own agency bureaucrats, who have belligerently opposed all previous attempts to author meaningful traceback policies. I’m afraid the agency’s current Traceback initiative is already dead in the water, and not even Sec Vilsack or Pres Obama will have the power or political muscle to force FSIS to do what is right.
    What’s good for the goose, is good for the gander. Whether a meat plant is the source, or the destination of contaminated meat, USDA should leave no stones unturned in a proactive attempt to detect the source, then force the source to make changes. Secretary Vilsack is requiring agency changes to be developed in 90 days. Let’s give the agency 6 months, then revisit this issue. I provide you an unqualified guarantee that agency policy will still be business as normal.
    John Munsell

  • Minkpuppy

    I’m interested to see how this case turns out. If Cargill succeeds in suing Greater Omaha, it opens the door for all the plants that purchased adulterated trimmings from them to turn around and sue Cargill. I wonder if they thought of that?