Earlier this week the National Institute of Communicable Diseases (NICD) reported that 1019 Listeria illnesses with 199 deaths have been linked to Tiger Brands Enterprise polony.  Today, Tiger Brands provided to the public – through an announcement to its shareholders that it had confirmed the NICD’s findings the a specific type of Listeria – Listeria monocytogenes ST6 type – was found.

To Tiger Brands’ credit, it has been transparent with its test results.  Its transparency support of the NICD findings is hopeful for its customers that suffered as a result of the Listeria-tainted product.  Tiger Brands should be commended for its willingness to provide the results in a public forum.

Here is the Tiger Brands’ announcement in full:

Results of Independent Tests carried out in respect of the presence of Listeria monocytogenes ST6 type (“LST6”) Shareholders are referred to the SENS announcement issued by the Company on 5 March 2018, relating to an order issued by the National Consumer Commission for the Company to conduct a recall of certain identified Enterprise products. In that announcement, it was stated that in a batch of one of its products tested by the Company on 14 February 2018, the presence of the ST6 strain could not be confirmed and that the relevant samples had been sent to an external laboratory for the identification of the strain. The test results were received on 15 March 2018, but these had proved inconclusive and, as a result, the samples were sent for further re-testing.

The purpose of this announcement is to update shareholders on the results of the independent laboratory re-testing which was carried out in respect of the presence of LST6 in the above samples which were manufactured at the Enterprise Polokwane processing facility. On 24 April 2018, Tiger Brands received confirmation of the presence of LST6 in these samples. As reported previously, we have been actively engaging with the Department of Health and the National Institute of Communicable Diseases on our findings and will continue to collaborate with them on the actions taken to date to actively address our findings.

The Enterprise facilities in Polokwane, Pretoria and Germiston still remain closed while remedial work continues. An arrangement has been concluded between Pork Packers (which is based in Clayville) and our pig suppliers to contract slaughter on their behalf with effect from 2 May 2018.

We have been retained by over 40 individuals from Arizona,  California, Idaho, Montana, Missouri, Illinois, Ohio, Pennsylvania, New York and New Jersey.  This includes 2 HUS cases in New Jersey, 1 in New York, 1 in Idaho and 3 in California.  We have filed suit in Federal Court in New Jersey.

As of April 25, 2018, 84 people infected with the outbreak strain of E. coli O157:H7 have been reported from 19 states. Alaska 5, Arizona 5, California 13, Colorado 2, Connecticut 2, Georgia 1, Idaho 10, Illinois 1, Louisiana 1, Michigan 2, Missouri 1, Montana 7, New Jersey 7, New York 2, Ohio 3, Pennsylvania 18, South Dakota 1, Virginia 1, Washington 2.

Illnesses started on dates ranging from March 13, 2018 to April 12, 2018. Ill people range in age from 1 to 88 years, with a median age of 31. Sixty-five percent of ill people are female. Forty-two ill people have been hospitalized, including nine people who developed hemolytic uremic syndrome, a type of kidney failure.

Illnesses that occurred after April 5, 2018, might not yet be reported due to the time it takes between when a person becomes ill with E. coli and when the illness is reported. This takes an average of two to three weeks.

State and local health officials continue to interview ill people to ask about the foods they ate and other exposures before they became ill. Sixty-four (96%) of 67 people interviewed reported eating romaine lettuce in the week before their illness started.

Information collected to date indicates that romaine lettuce from the Yuma, Arizona growing region could be contaminated with E. coli O157:H7 and could make people sick.

The Numbers: As of Friday night, the CDC reported 53 people infected with the outbreak strain of E. coli O157:H7 being reported from 16 states.  However, the CDC reported only 1 case in Alaska while the Alaska Department of Public Health (ADPH) reported 8 ill from the Anvil Mountain Correctional Center in Nome.  In ADPH’s investigation it confirmed that the whole head romaine lettuce consumed by the Nome patients was grown in Yuma, Arizona. In addition, the CDC reported 6 ill in Montana while the Montana Department of Public Health reported 8 and the CDC reported 3 ill in Arizona while the Arizona Department of Health reported 5. The CDC further reported that 31 people have been hospitalized, including five people who have developed hemolytic uremic syndrome (HUS).  By my count that is 64, not 53.

The hardest hit states are Alaska with 8 ill, Idaho with 10 ill, Montana with 8 ill, New Jersey with 7 ill, and Pennsylvania with 12 – 5 states with 45 ill – 19 ill in the other 11 states.  By CDC count, here is a full list of states and illnesses reported:  Alaska 1, Arizona 3, California 1, Connecticut 2, Idaho, 10, Illinois 1, Louisiana 1, Michigan 2, Missouri 1, Montana 6, New Jersey 7, New York 2, Ohio 2, Pennsylvania, 12, Virginia 1 and Washington 1.

As of a few moments ago, I had been contacted by nearly 30 people, most of whom are clearly part of the CDC’s and states’ counts, some require a bit more investigation. However, some with E. coli O157:H7 are awaiting contact by health officials.  In addition, three patients (13-year-old from New York and a 6-year-old and 16-year-old from California) that I spoke to their families this last weekend, all developed HUS, and may not yet be counted in the CDC totals.  Given that I have also been retained by a 23-year-old HUS patient in Idaho and two adult HUS patients in New Jersey, I think the CDC count of five with HUS, is unfortunately low.

Counting the bodies in an outbreak can be the easy part; positive stool cultures for E. coli O157:H7 are genetically matched by PFGE (unclear if state and CDC labs are doing WGS yet) and people are interviewed to determine what they consumed in the 3-5 days before the onset of illness. That is how the state health authorities and the CDC have determined (thanks to the prisoners in Alaska) that whole head and chopped romaine from Yuma Arizona is the cause of this outbreak – that is likely to grow in number.  And, the counting at times takes weeks.

Tying the Chain Together:  What we know: there is a cluster of cases in the East – New Jersey and New York – that share a common exposure of eating salads with romaine lettuce at Panera Bread.  Panera received chopped-bagged romaine from processor Freshway Foods.  At this point, we cannot confirm where Freshway Foods, which services the Midwest and East,  sourced the romaine, but a subpoena in the lawsuit I filed last week will likely do the trick.

For Illnesses in the West, I have also found a common processor for cases in Montana and Idaho, but I do not – yet – have the evidence to file suit.  And, then there is Alaska; as noted above, the ADPH announced that whole head romaine lettuce consumed by the Nome patients was grown in Yuma, Arizona.  And, Food Safety News  has learned the romaine was likely delivered to the correctional facility during the final week of March. Prison officials believe it was all consumed during the first week of April. Inmates who became ill first experienced symptoms on April 5, 6, 9 and 15. Country Foods, located three hours from Nome by air, is the food supplier for the Anvil Mountain prison.

I have been told the name of the Yuma, Arizona grower X by at least three people who would know, but I will let the FDA announce the growers name today?

I assume also the CDC will update their body count today?

The bigger questions are the link between grower(s) X and all 64 – and growing illnesses – and why the broad geographical distribution of the illnesses?

The NICD published its most recent report on the deadly Listeria outbreak. Fortunately, it is winding down at the polony was pulled from shelves.  However, the NICD warns that not all polony has been recalled, and due to the long incubation period for Listeria, case could still be counted for some time.

It was a wide-spread outbreak.

The outbreak greatest impact was on babies less that 28 days of age and people in the 15 – 49 years of age.

Listeriosis outbreak situation report_22April 2018_fordistribution

I assume that the fellow that left this comment on my post of yesterday “Why I work weekends” is a real person who is actually in charge of “the Food Safety programs of two grower/shippers of fruit and produce.”  I bet your buyers – consumers, restaurants or retailers, feel great about the vote of confidence in your product.

Setting aside for a moment how Chad may feel about lawyers, do you really think the appropriate response to someone who buys a salad at a place like Panera or buys a package of “triple-washed” chopped, bagged romaine at a grocery store, and becomes sick due to E. coli O157:H7 and develops HUS is, sorry, “shit happens?’

Sorry, that is not acceptable.  If you put a defective product – yes, E. coli O157:H7 is a defective product – into commerce and you harm someone, you are responsible.  To suggest otherwise, especially in these circumstances is legally and morally wrong.

It is the attitude of it’s “Nature’s fault” that leads to complacent finger-pointing at consumers.  Are consumers supposed to wash the lettuce they are served at a restaurant?  Do we really expect a busy homemaker (man or woman) to wash the washed chopped bagged salad they picked up at the grocery store?

Here is his comment in full, unedited:

chad gress

“I promised the distraught father that I would take care of his kid and find the grower, shipper, processor and retailer (honestly, I know most of the chain already and the rest will flip shortly – perhaps I should offer a reward?) that did this to his daughter.“

NATURE did this to his daughter. Was it facilitated by a breakdown in safe growing, harvesting and/or processing practices by one or more companies in the chain of custody? Perhaps. But that is yet to be determined.

I am responsible for the Food Safety programs of two grower/shippers of fruit and produce. I hate hearing about people suffering because they made a healthy choice to eat fresh produce. And being a father, I sympathize with anyone who’s child becomes sick or dies as a result of exposure to a food-borne pathogen. But I am all too aware that, despite our best efforts to protect the consumer by proactively reducing the potential for cross contamination during the growing and harvesting stages, it is not possible to eliminate the potential for contamination. Without a kill step, fruits and vegetables have always and will always be susceptible to contamination.

To tell a father that you are going to find out who “did this to his daughter” without knowing all the facts is irresponsible and misleading. I support taking legal action against companies who demonstrate negligence in thier duties towards the health and safety of the public. It seems the only way to effect change is to go after their wallets. But for so many of us in the produce industry doing our reasonable best to grow and ship a product that is safe for human consumption, being portrayed as “villians” in these scenarios is just ethically wrong.

Produce is grown outdoors, in nature, exposed to countless sources of contamination, the most dangerous of which are microorganisms that are invisible to the human eye, extremely adaptable and likely more resilient than we currently understand them to be. We are constantly performing risk assessments to identify potential weak points in our Food Safety Programs, and modifying our procedures so they reflect the most current science-based metrics. We are conscientious and diligent. And yet, we will never be able to eliminate the risk of our produce being a source of food-borne illness.

And so we will continue to be the targets of litigation, and attorneys will continue to use the type of language that you did with thier clients and the public, encouraging them to file lawsuits against everyone who touched the product. Eveyone who “did this to thier daughter”.

If you can not make mass produced produce safely – don’t sell it.  If you sell it and sicken some 11 year old girl whose only crime was to order a salad at Panera, then step up and be responsible for what happened to her.

And Chad, since I posted “Why I work weekends” – I have been retained by the family of a 16-year-old girl with HUS who just was released from ICU and the mother of a 6-year-old boy who was just hospitalized in the last few days and has early stages of HUS.  Would you like to tell them, that is just nature’s way?

I remember the first time I traveled outside the US, I got a series of vaccine – including a Hepatitis A vaccine.  I do not recall ever seeing a warning about travel within the US – go figure.

Indiana health officials are advising residents to get vaccinated for hepatitis A if their summer plans include visits to Kentucky or Michigan.

The Department of Health says significant outbreaks of the liver-damaging hepatitis A virus have been reported in Kentucky and Michigan.

The agency says Kentucky has seen more than 300 cases of the highly contagious viral infection, including three deaths, most of those in the Louisville area. Michigan has had more than 800 cases, including 25 deaths.

Indiana typically sees less than 20 hepatitis cases each year, but 77 have been confirmed since January.

State Epidemiologist Pam Pontones says getting vaccinated for hepatitis A and thoroughly washing hands when preparing food are “simple, safe and effective ways” to prevent the spread of hepatitis A.

Likely not so good for tourism?

I was up at 4:00 AM this morning to communicate with my colleagues in South Africa about the Listeria outbreak that has sickened over 1,000 – killing almost 200.  I hope that the team at Marler Clark can bring our 25 years of experience to help these people and to try and limit something like this from every happening again (one paralegal is heading there next week and Bruce is heading there in early June).

As I was thinking about heading back to bed to wait for the sun to come up, my cell phone rang – It was the father of a 13 year old girl still on dialysis over three weeks after eat chopped romaine tainted with E. coli O157:H7.  I promised the distraught father that I would take care of his kid and find the grower, shipper, processor and retailer (honestly, I know most of the chain already and the rest will flip shortly – perhaps I should offer a reward?) that did this to his daughter.

I was about to head back to bed – sun was not yet up – when this popped up on social media:

This man represented our case in the Peanut Corp peanut paste Outbreak of 2008. Christopher was the sickest child. Bill brought to me sanity at a time when Chris was still recovering and I was working in an inept way with the Dept of Health to sort of track down how and why Chris got so sick from something he ate. I had been upset, baffled and puzzled for 2 months until I met Bill Marler. He immediately took me and our family’s situation under his wing. He educated me and advocated for us. He created sanity for something that had been chaotic. Bill was my light. As a Mom, none of what had happened made any sense until I met Bill. Bill gave me a voice through national media to help others and educate others based up my experience. This entire outbreak which killed too many and sickened hundreds and probably thousands, if truth be told, was not handled efficiently at all. Bill helped me to get involved on a National level to advocate change in Food Safety laws. Through his efforts and others like STOP and PEW, we were able to finally push legislators to update the antiquated food safety laws and FSMA was finally passed and signed into law in January 2011. A monumental change to update how US food moves through the supply chain. Bill was quietly behind all of it.

Bill filed the first law suit against PCA on my Christopher’s behalf. Bill then quietly supported the victims efforts (as well as PEW) to bring justice to the company that knowingly poisoned the American public through 5,000 products their paste was sold in. And three years ago I was able to be part of the sentencing of the company’s executives and managers, and I was able to tell the judge my story/Christopher’s story and stare the responsible man in the face who was ultimately responsible. Justice was served that day. It had been a long long road.

Bill Marler you will always have a place in my heart. America is lucky to have a man like you out there fighting for what is right.

I think I’ll stay up and go to work.

First off, “shout out” to the eight prisoners at Anvil Mountain Correctional Center in Nome Alaskathat ate tainted whole-head romaine from an unnamed grower in Yuma Arizona. Your illnesses are tightening the likelihood that a grower will be implicated.

Second, I feel bad for the California romaine growers who are being hit by the ambiguity of the following warnings.

The FDA and CDC have both updated consumer warnings that in my view :

FDA:

The U.S. Food and Drug Administration, along with the Centers for Disease Control and Prevention (CDC) and state and local partners, are investigating a multistate outbreak of E. coli O157:H7 illnesses.

On April 19, 2018, Alaska health partners announced that several people in a correctional facility are infected with the outbreak strain of E. coli O157:H7. These individuals ate whole-head romaine lettuce from Yuma, Arizona. Based on this new information, the FDA is advising that consumers avoid all romaine lettuce from Yuma, Arizona. If you cannot determine the source of your romaine lettuce, throw it away and don’t eat it.

CDC:

What’s New?

Based on new information, CDC is expanding its warning to consumers to cover all types of romaine lettuce from the Yuma, Arizona growing region. This warning now includes whole heads and hearts of romaine lettuce, in addition to chopped romaine and salads and salad mixes containing romaine. 

Do not buy or eat romaine lettuce at a grocery store or restaurant unless you can confirm it is not from the Yuma, Arizona, growing region.

Unless the source of the product is known, consumers anywhere in the United States who have any store-bought romaine lettuce at home should not eat it and should throw it away, even if some of it was eaten and no one has gotten sick. Product labels often do not identify growing regions; so, throw out any romaine lettuce if you’re uncertain about where it was grown. This includes whole heads and hearts of romaine, chopped romaine, and salads and salad mixes containing romaine lettuce. If you do not know if the lettuce is romaine, do not eat it and throw it away.

Restaurants and retailers should not serve or sell any romaine lettuce from the Yuma, Arizona growing region.

The expanded warning is based on information from newly reported illnesses in Alaska. Ill people in Alaska reported eating lettuce from whole heads of romaine lettuce from the Yuma, Arizona growing region.

You have to wonder if the FDA named the Yuma grower and when that grower stopped production that the warning to not eat romaine lettuce from Yuma would have a bit more meaning.

Seattle U Lawyer: By Claudine Benmar, April 18, 2018

Bill Marler ’87 takes calls about foodborne illness from clients around the country. 

This year marks the 25th anniversary of a massive E. coli outbreak, which hit 73 Jack in the Box restaurants in Washington, Idaho, Oregon and California; sickened 700 people; sent 171 to the hospital; and killed four. The anniversary is a somber but noteworthy milestone for accomplished food safety attorney Bill Marler ’87.

“It’s the 25th anniversary of the outbreak, but it’s also the 20th anniversary of our law firm,” he said. Seattle-based Marler Clark, which he co-founded with fellow Seattle University School of Law alumnus Bruce Clark ‘84, was the nation’s first law firm to focus solely on helping victims of foodborne illnesses and grew directly from both attorneys’ experience with the 1993 outbreak.

As milestones like this come and go, Marler, who recently turned 60, wonders whether it’s time to retire. A few of his colleagues from the law firm’s early days have already done so.

“But I really love my job,” he said. “I get to make a huge difference in people’s lives, people who have lost their kidneys, lost their large intestines, are brain-injured, families that are facing millions and millions and millions of dollars in medical expenses, or a husband who’s never going to work again. And I get to help them. That’s a reason to get up and go to work every day.”

In the last two decades, Marler Clark has been involved in the aftermath of every major and minor outbreak of foodborne illness in the United States, working not only with victims but also with scientists and public health officials to make the food supply safer. Author Jeff Benedict, who chronicled the Jack in the Box story in his 2011 book, “Poisoned,” wrote that “no individual has had more influence on the shape and direction of food safety policy in the U.S.” than Marler.

Back in 1993, just a few years out of law school, he became the lead lawyer for the plaintiffs through an effective combination of hustle, hard work, personal connections, and media savvy.

His first E. coli client was a Tacoma family referred to him by a woman he had helped with a worker’s compensation claim. He rushed from his office in downtown Seattle to his old law school hangout in Tacoma (the law school was formerly affiliated with University of Puget Sound), the Poodle Dog Restaurant, met with the family, and convinced them to hire him.

“I went from obscurity to being sort of the legal face of the outbreak. I went from having one client to five clients to 10 clients to hundreds,” he said. Two years into the class-action lawsuit, when the end was finally in sight, Marler settled $25 million worth of cases in two days of mediation.

Most notably, he secured a $15.6 million settlement – the largest of its kind at the time – on behalf of Brianne Kiner, the Seattle girl who was the most severely injured victim of the outbreak, which was traced to undercooked hamburgers at 73 Jack in the Box restaurant locations. Just 9 years old, she spent several weeks in a coma, followed by a long and painful recovery. She still struggles with lifelong health effects such as infertility, asthma, and diabetes.

When the case concluded, Marler figured he would return to a general personal injury practice, possibly specializing in medical malpractice. But then another E. coli outbreak hit, again centered in Washington state. In 1996, a tainted batch of apple juice, from a juice company called Odwalla, killed one toddler and sickened 66 people. The families called Marler for help, thanks to his high profile in the Jack in the Box litigation.

“It really was at that point that I thought, ‘Hmm, clearly people think I know what I’m doing,’” Marler joked. “But candidly, I had worked really hard. I knew the law and I knew the medicine really well. I started wondering if you could create an entire practice around this.”

You could. Or rather, he could. Marler and Clark partnered with lawyers Denis Stearns and Andy Weisbecker to create the firm in 1998. (Both Clark and Stearns essentially switched sides, having represented Jack in the Box during the earlier litigation.) Two of the firm’s most recent hires are also Seattle U Law graduates – Anthony Marangon ’15 and Josh Fensterbush ’17. Stearns and Drew Falkenstein ’02 are of counsel at the firm.

Over the years, Marler has secured more than $600 million for victims of E. coli, salmonella, and other foodborne illnesses. While lawsuits often spur companies to make important changes – Jack in the Box developed the industry’s toughest safety standards after its outbreak – Marler knows there’s more to it than litigation. So he also devotes his energy and expertise to advocate for stronger food safety laws and regulations.

He petitioned the U.S. Department of Agriculture to better regulate pathogenic E. coli and successfully advocated for the passage of the 2010-2011 FDA Food Safety Modernization Act. He has spoken to countless industry groups and journalists, established science scholarships, and written extensively on all manner of foodborne pathogens.

What motivated Bill Marler back in 1993 is what continues to motivate him today. Many people who suffer the most from foodborne illness are children, and the money he earns for them is intended to take care of them for the rest of their lives.

Marler has three daughters of his own – one is a graduate of Seattle University and two are current students. The oldest was just an infant when he took on Jack in the Box.

“When you’re representing little children and you see how injured they are,” he said, “it doesn’t take much to look at your own kids and realize just how important your job is.”