Header graphic for print
Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Topps closes its doors over E. coli recall after nearly 70 years in operation – will the USDA and FSIS be held accountable too?

Not surprisingly, Jeff Gold of AP reported this morning:

Topps closes 6 days after the second-largest U.S. beef recall

The company at the center of the nation’s second-largest beef recall in U.S. history is closing its doors. Elizabeth-based Topps Meat Company, which was founded in 1940, has recalled almost 22 (M) million pounds of its frozen hamburgers. That is one years production. Thirty people in eight states had E. coli infections matching the strain found in the Topps patties. In a statement today announcing the closure, Topps chief operating officer Anthony D’Urso said the company is praying for people who became sick.

While watching a business shut down and people lose their jobs is tragic, we’ve seen it before and for the same reasons. It appears that significant food safety errors and omissions that occurred repeatedly for over a year are what led to this closure. What did Topps learn after poisoning Erik Boehlke and nearly killing her in 2005 – apparently, not enough.

It is inconceivable to me that of 87 Topps employees and managers, not one of them caught the mistake – which apparently happened every day for a year – that allowed E. coli to enter the plant and potentially contaminate ground beef products. After all, the Topps plant should have had a hazard analysis and critical control point (HACCP) plan in place to aid the now-unemployed workers in identifying areas in the manufacturing process where contamination was likely to occur.

What is almost of as great of concern is what the USDA and FSIS knew about this recent recall and when they knew it?

According to the Daily Green, a consumer newspaper:

USDA Waited 11 Days to Recall E. coli- tainted Meat

The Department of Agriculture waited 11 days after discovering E. coli bacteria in Topps Meat hamburgers to start the recall that grew into the second largest this nation has ever seen.  As many as 29 illnesses resulted — and it’s not clear if, or how many, of those could have been prevented had the USDA not had its head stuck up its bureaucracy.

According to Julie Schmit of USA Today:

USDA revamps recall procedures – Move comes after criticism it was slow to act in beef case

The USDA’s promise to revamp some recall procedures is likely to dampen criticism sparked by news reports about its handling of the Topps recall. Eleven days before the recall, the USDA had confirmation that a Florida teen was sick with the same strain of E. coli O157:H7 that was found in a box of Topps burgers from her freezer. But because the box was open and there was a rare chance that the E. coli had originated in the home, no recall was begun until after New York state found the same E. coli strain in an unopened box of Topps burgers from a supermarket. “We are not completely satisfied with the time” that elapsed, says David Goldman, assistant administrator. The standard will be changed in some cases.

In the past, beef recalls have not occurred or have been delayed because initial confirmed cases came from opened packages of beef, says Bill Marler, the nation’s leading E.coli plaintiff’s attorney. “It has been a stupid policy,” he says.

Jeff Gold of AP also wrote:

Beef Recall Forces Topps to Shut Down

Topps Meat Co. on Friday said it was closing its business, six days after it was forced to issue the second-largest beef recall in U.S. history and 67 years after it first opened its doors.

Topps faces at least two lawsuits filed since the recall, one from the family of an upstate New York girl who became ill, and one seeking class-action status on behalf of all people who bought or ate the hamburgers. The family of a Florida girl who suffered kidney failure sued Wal-Mart Stores Inc., which is among chains that sold Topps patties.

The closing, or any subsequent bankruptcy, does not derail the lawsuits, said William D. Marler, a lawyer for the family of 8-year-old Emily McDonald, of North Colonie, N.Y. She was hospitalized for two days after eating a hamburger Aug. 17 at a barbecue. “Bankruptcy will slow the process down, but it does not mean that people will not be compensated,” Marler said.

I had a chance to talk about this with Jane Genova of Law and More.