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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Will Cargill, a Mulit-Billion Dollar Privately Held Company, Face Punitive Damages in the Case of the Paralyzed Dancer? You Decide

The 2007 Cargill E. coli O157:H7 Outbreak and its Genesis

On October 3, 2009, the New York Times published an article on Stephanie Smith’s injuries and the contaminated, recalled Cargill meat that caused them—specifically, a hamburger patty that Stephanie’s aunts had purchased at a local Sam’s Club store. See Michael Moss, "E. coli Path Shows Flaws in Beef Inspection," New York Times, at A 1. The underlying facts in the story are highly relevant to this case. First, they establish that Cargill will not be able to successfully shed any responsibility for Stephanie’s injuries because it cannot show which component part of the recalled ground beef patties was originally contaminated, or where the contaminated component part came from. And second, although Cargill is strictly liable to Stephanie Smith, the facts show that Cargill was negligent, driven purely by financial gain, in its acquisition of meat and the production of ground beef products.

The facility where Cargill produced the recalled hamburger patties (USDA # 924A) is a grinding operation. At this location (Butler, Wisconsin), Cargill receives a variety of beef products (including meat trimmed from larger cuts, called “trimmings”) from a number of sources across the country, and even internationally, and then grinds the products together to produce ground beef patties. According to the New York Times story:

[C]onfidential grinding logs and other Cargill records show that the hamburgers were made from a mix of slaughterhouse trimmings and a mash-like product derived from scraps that were ground together at a plant in Wisconsin. The ingredients came from slaughterhouses in Nebraska, Texas and Uruguay, and from a South Dakota company that processes fatty trimmings and treats them with ammonia to kill bacteria.

The story also notes that “[u]sing a combination of sources—a practice followed by most large producers of fresh and packaged hamburger—allowed Cargill to spend about 25 percent less than it would have for cuts of whole meat.”

The source-material that has drawn the most interest—and, for a majority of people, also inspired the most disgust—is the so-called “fine lean textured beef” supplied by Beef Products, Inc. (“BPI”). This product was the subject of a follow-up story by Michael Moss in the New York Times, titled: "Safety of Beef Processing Method Is Questioned." (Dec. 30, 2009).

This raw material, which Cargill used to make it patties more profitable, is made “from beef that included fatty trimmings the industry once relegated to pet food and cooking oil. The trimmings were particularly susceptible to contamination.”

Despite Cargill’s occasional insistence that it could identify the source of the E. coli-contaminated raw materials, the USDA concluded that such an identification was not possible given the state of records related to the manufacture of the implicated patties.

And, predictably, each of the potential suppliers of contaminated raw materials denies that their product was the source of the E. coli O157:H7 that so seriously injured Stephanie and others.

Commenting on this issue of relative responsibility, and the New York Times article on Stephanie Smith, an article in the Lincoln Star Journal observed:

Smith was victimized by ground meat that was tainted – nobody knows where or when in the processing chain – sold at a Sam’s Club and packed at a Cargill meat plant in Wisconsin, supplied in part with meat trimmings from Greater Omaha Packing Co.

At a plant the size of four football fields at 30th and L in Omaha, the company slaughters and processes 2,600 cattle daily, the Times reported.

Others in the Cargill supply chain were slaughterhouses in Texas and Uruguay, and Beef Products Inc., a South Dakota company with a plant in South Sioux City, Neb.

Using a combination of sources of meat and trimmings allowed Cargill to spend about 25 percent less than it would have otherwise, according to the Times.

In a response to questions from the Journal Star, Angelo Fili, executive vice president of Greater Omaha Packing, expressed sympathy for victims of tainted food. But he also said the Times story was biased and unfair because it neglected to report that Greater Omaha’s product has never been recalled, and its contribution to the Cargill product that crippled Smith had been cleared by a lab.

"Copies of the Certificate of Analysis test results of Greater Omaha’s product used by Cargill are available at our Website: www.greateromaha.com," Fili said in an e-mail. "All product tests were performed by IEH Laboratories, the same lab that the New York Times used for their E. coli tests as referenced in the article.

See Richard Piersol, "Beef Industry under fire after N.Y. Times article," Lincoln Journal Star, October 17, 2009.

The investigation triggered by the 2007 Cargill outbreak prompted the USDA to further scrutinize the plant where Cargill had manufactured the contaminated patties. As noted in the Moss article:

In the weeks before Ms. Smith’s patty was made, federal inspectors had repeatedly found that Cargill was violating its own safety procedures in handling ground beef, but they imposed no fines or sanctions, records show. After the outbreak, the department threatened to withhold the seal of approval that declares “U.S. Inspected and Passed by the Department of Agriculture.”

In the end, though, the agency accepted Cargill’s proposal to increase its scrutiny of suppliers. Records show that Cargill and the USDA reached this accord early last year after contentious negotiations. When Cargill defended its safety system and initially resisted making some changes, an agency official wrote back: “How is food safety not the ultimate issue?”

The sum total of all these circumstances will be brought to bear on Cargill, and Cargill alone, in trial of this case. Cargill will not prove who it received the contaminated trimmings from. Had it been able to do so, it would have done exactly that long before resolving the cases of many other outbreak victims represented by this firm, and long before its association with Stephanie Smith’s devastating injuries was broadcast to the entire world. Ultimately, the effort to cast blame elsewhere will only succeed in causing a scrutiny of its business operations that Cargill can ill-afford.

549.20 PUNITIVE DAMAGES MINNESOTA

Subdivision 1. Standard.

(a) Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.

(b) A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:

(1) Deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or

(2) Deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others. …

Subd. 3. Factors.

Any award of punitive damages shall be measured by those factors which justly bear upon the purpose of punitive damages, including the seriousness of hazard to the public arising from the defendant’s misconduct, the profitability of the misconduct to the defendant, the duration of the misconduct and any concealment of it, the degree of the defendant’s awareness of the hazard and of its excessiveness, the attitude and conduct of the defendant upon discovery of the misconduct, the number and level of employees involved in causing or concealing the misconduct, the financial condition of the defendant, and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards to the plaintiff and other similarly situated persons, and the severity of any criminal penalty to which the defendant may be subject.

Your thoughts?

References

1.  On October 6, 2007, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) announced the recall of approximately 845,000 pounds of ground beef manufactured by Cargill between August 9 and August 17, 2007. The reason for the recall was contamination with E. coli O157:H7. The multi-state public health investigation that occurred in response to the outbreak and recall was lead by the State of Minnesota. Ultimately, the CDC and various state health departments identified at least 30 outbreak cases from multiple states.

2.  This article was one of the single most read, reprinted, and commented on articles in New York Times history. http://www.nytimes.com/2009/10/04/health/04meat.html.  It spawned numerous follow-ups, including Safety of Beef Processing Method is Questioned, and became the subject of a primetime interview with Larry King. See http://www.marlerblog.com/2009/11/articles/lawyer-oped/larry-king-and-e-coli-o157h7-deaths/.

3.  http://www.nytimes.com/2009/12/31/us/31meat.html

4.  http://www.journalstar.com/news/local/article_8b7de410-bb7f-11de-8369-001cc4c03286.html

5.  http://documents.nytimes.com/food-safety-documents#p=15&a=542

6.  http://documents.nytimes.com/food-safety-documents#p=48&a=545

  • drbill

    Well, let’s see… we discovered this mutation in E coli about 25 years ago. Regulators, meat processors and restaurants have spent billions to try to eliminate this problem. Raw meat products must be labeled with safe handling warnings to ensure consumers know to cook to 160F. The person who cooked this beef and fed it to this poor woman was not Cargill, it was her MOTHER. So, Who is really culpable? Oh, I forgot that lesson from Law School, don’t go after the responsible party if they don’t have the resources to PAY…. Guess that is why Marler has made hundreds of Millions off this gig. Why give up a perfect cash cow??

  • John Munsell

    drbill refers to a “perfect cash cow”. Well, this cash cow is not due to Mr. Marler’s involvement, but due to the fact that domestic slaughter plants ship pathogen-laced meat into commerce, with endorsement from USDA. The agency knowingly allows slaughter plants to ship into commerce intact cuts of meat which are surface-contaminated with E.coli 0157:H7. USDA states that when E.coli are present on intact cuts, they are NOT adulterants. However, the agency states that once the destination facility (retail meat markets, restaurants, etc) further processes these intact cuts into steaks, roasts, and ground beef, and the E.coli are then detected, then the downstream entity is fully accountable for the presence of this invisible pathogen. We should not be the least surprised as we continue to suffer from ongoing outbreaks and recurring recalls. If it were not for folks like Bill Marler protecting the rights of consumers, the slaughter plants would enjoy total immunity for responsibility for E.coli-contaminated meat being shipped from their plants. USDA is an equal culprit in this scenario, as it intentionally implemented the current deregulated method of non-inspection called HACCP, which has not only insulated the large packers from accountability, but has also allowed the agency to semi-retire at the largest slaughter establishments. As long as USDA allows meat packers to ship pathogen-laden beef into commerce, consumers will get sick, some will die. In the absence of litigation, how else could we protect the legitimate interests of consumers? Since the USDA won’t protect consumers, litigation is the only alternative left. If the slaughter plants would only produce consistently safe meat, Mr. Marler would be forced into another line of work. This is INDEED a financial issue! As long as the largest slaughter plants can maintain their fast chain speeds, bacteria will remain on carcasses. If a packer can profit, let’s say, $2 billion a year by maintaining fast and efficient (yet unsafe) chain speeds, they are willing to invest a paltry $100 million or so annually into legal settlements and lobbying. Great return on investment, wouldn’t you say? Conclusion: since USDA no longer wants to inspect big plants, and lacks the courage to challenge the biggest packers with meaningful enforcement actions, we must rely on the legal system to protect consumers. John Munsell