Food Poisoning Lawyer & Attorney : Bill Marler : Marler Clark

Standing in the New Orleans Airport yesterday afternoon, I had a nice chat with Mark Morey of the Yakima Herald about the status of the ConAgra Salmonella Peanut Butter litigation (CDC confirms 714 Illnesses) as well as the filing of yet another suit against ConAgra for manufacturing Salmonella Pot Pies (CDC confirms 272 Illnesses – 27 in Washington State).  His article appeared this morning in the Yakima Herald - Woman sues over tainted pies:

Bill Marler, a Seattle attorney who focuses on food safety cases, said Barnes' case is among 40 that he is handling related to the ConAgra outbreak, which federal health investigators say sickened about 270 people in the United States…. ConAgra said it has improved safety measures, but Marler said Barnes and other victims deserve compensation for their medical treatment…. Marler said the company has not  offered a settlement yet, although he is discussing that possibility as part of other litigation involving tainted ConAgra peanut butter.

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I am sitting at home not wanting to head to the airport for a trip to New Orleans (it is Thanksgiving weekend anyway) to meet with lawyers and insurers from ConAgra (sounds fun?).  I must admit that I am skeptical of the meeting given that to date ConAgra has resolved no claims of any significance   However, there seems to be some recent interest in resolving the thousands of legitimate customer claims.  Given that ConAgra is facing legal defense bills of seven figures each month, has incurred some $50-60 million in recall cost - and who knows how much in lost sales - and now faces more of the same in Pot Pies, perhaps it will get serious and take care of its customers.

As you know, on June 1, 2007, the CDC reported that a total of 628 persons had been infected with Salmonella Tennessee in 47 states since August 1, 2006. That number has now risen in excess of 714.  However, remember that according to AC Voetsch, “FoodNet estimate of the burden of illness caused by nontyphoidal Salmonella infections in the United States,” Clinical Infectious Diseases 2004;38 (Suppl 3):S127-34, 714 ill people is an undercount by 38.6 times - That is an actual total of 27,560 people sickened by ConAgra's Peanut Butter.

In addition, the outbreak strain of Salmonella Tennessee has been isolated from several opened and unopened jars of ConAgra produced Peter Pan and Great Value peanut butter and from two environmental samples obtained from the Sylvester, Georgia ConAgra plant. Rumor also has it that State and Federal labs have tested in excess of 100 jars of peanut butter from Salmonella Tennessee infected persons (stool culture positive) and that dozens of jars have tested positive for Salmonella Tennessee. We have tested nearly 1000 jars of peanut butter from clients (Salmonella Tennessee stool culture positive and not), and to date six have tested positive.  Several of our positive peanut butter tests, and culture positive clients, have the lid codes with 21116251 on the top (means it was produced by the Sylvester ConAgra plant on September 22, 2006).  We believe that the CDC has similar information, but it has not fully responded to our FOIA to date.  States' responses have also been slow, but are coming in.

So, wish me luck (or a bit of magic) on the flight.  More importantly, however, wish ConAgra the wisdom to understand that its future success is tied to taking care of its poisoned customers and in making a serious commitment to food safety.  ConAgra needs to remember that it is no "Big" deal, in fact it is "Easy," to do the right thing.  If taking care of customers is too hard, ConAgra also needs to remember the FDA inspection of 2005:

"....  alleging poor sanitation, poor facilities maintenance, and poor quality program management.  Specifics in that complaint include an alleged episode of positive findings of Salmonella in peanut butter in October of 2004 that was related to new equipment and that the firm didn’t react to, insects in some equipment, water leaking onto product, & inability to track some product....  reporting several issues at the firm that in summary allege poor sanitation practices, poor quality program management and poor facilities maintenance."

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When they are mixed together at ConAgra?* (hopefully, people recall the TV ads of a few years ago - "you have chocolate in my peanut butter.")



UPDATE - Between January 1, 2007 and October 29, 2007, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states.  Illnesses began January 2007 and have continued through at least October 2007.

Investigation of Outbreak of Human Infections Caused by Salmonella I 4,[5],12:i:-

Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (4), California (16), Colorado (7), Connecticut (6), Delaware (5), Florida (2), Georgia (2), Idaho (8), Illinois (6), Indiana (3), Kansas (3), Kentucky (8), Massachusetts (6), Maryland (7), Maine (1), Michigan (3), Minnesota (7), Missouri (16), Montana (4), Nevada (6), New York (10), Ohio (10), Oklahoma (1), Oregon (3), Pennsylvania (17), Tennessee (6), Texas (4), Utah (12), Virginia (9), Vermont (2), Washington (17), Wisconsin (23), Wyoming (3). Their ages range from <1 to 87 years with a median age of 20 years; 51% of ill persons are female. At least 50 people have been hospitalized. No deaths have been reported.  State health departments are collecting and testing pot pie products recovered from patients’ homes. To date, one pot pie yielded Salmonella I 4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.



So far, the CDC has reported that the other ConAgra Salmonella outbreak has held fast at 628 cases in 47 States.

Multistate Outbreak of Salmonella Serotype Tennessee Infections Associated with Peanut Butter --- United States, 2006--2007

In November 2006, public health officials at CDC and state health departments detected a substantial increase in the reported incidence of isolates of Salmonella serotype Tennessee. In a multistate case-control study conducted during February 5--13, 2007, illness was strongly associated with consumption of either of two brands (Peter Pan or Great Value) of peanut butter produced at the same plant. Based on these findings, the plant ceased production and recalled both products on February 14, 2007. The outbreak strain of Salmonella Tennessee subsequently was isolated from several opened and unopened jars of Peter Pan and Great Value peanut butter and from two environmental samples obtained from the plant. As of May 22, 2007, a total of 628 persons infected with an outbreak strain of Salmonella serotype Tennessee had been reported from 47 states since August 1, 2006. on February 13, 2007.  Subsequent laboratory testing of leftover peanut butter from patients was performed at state public health laboratories and CDC. Salmonella Tennessee with a PFGE pattern matching one of the outbreak strains was isolated from 21 opened and unopened peanut butter jars with production dates ranging from July 2006 to December 2006.


I am not an owner or stockholder of ConAgra (yet, anyways).  However, if I was, here are a few questions I would ask:

1.  What the hell is going on with food safety and quality assurance?

2.  Why to date have no Salmonella culture positive cases from either outbreak been settled despite spending millions of dollars on legal defense fees?

One other thing, it is clear that the numbers the CDC cites as cases related to Pot Pies (238) and to Peanut Butter (628) are gross undercounts.  According to AC Voetsch, “FoodNet estimate of the burden of illness caused by nontyphoidal Salmonella infections in the United States,”Clinical Infectious Diseases 2004;38 (Suppl 3):S127-34.  The real numbers are some 38.6 times higher, or 9,187 ill in Pot Pies and 24,241 ill in Peanut Butter.

*  I am not implying that Reese's Peanut Butter has anything to do with ConAgra's mess.

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No, those are not lawyers (well, I don't think), but are the rats found in a NYC Taco Bell - remember the recent E. coli outbreak?  We are representing nearly two dozen people sickened after eating E. coli contaminated tacos at Taco Bells in New York, New Jersey and Pennsylvania.  Anyway, back to Peanut Butter - Jennifer Emert from WALB News 10 and I spoke by phone about the recent recall of Con Agra Peanut Butter:

Here are today's other major developments. A Seattle attorney today filed a class action lawsuit with more than three-thousand people who believe peanut butter made them sick, and production at the Sylvester ConAgra Foods plant is still stalled.

Seattle Attorney Bill Marler has filed a class action lawsuit against ConAgra Foods. "The calls have come in from every corner of America, several foreign countries and we even got an e-mail from a Sergeant serving in Iraq, who'd gotten the peanut butter in a care package."

Also, last Friday I spent a pleasant hour talking with NPR correspondent Margo Adler of Justice Talking.  And camera crew from CNN  And Oregonian reporter, Alex Pulaski

All are doing stories that will air or be in print over the next few weeks.  Food safety and the rash of recent outbreaks and illnesses tied to our food supply is finally getting the attention is requires.

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Carol M. Ostrom, Seattle Times staff reporter, spent a few hours in our office today.  Below is her report:

A Kent woman and a Bellingham man have filed a class-action lawsuit against a Nebraska-based food manufacturer on behalf of people sickened by Salmonella infections after eating peanut butter later recalled for contamination.

James Winston Daniels II of Bellingham missed several days of work after he made sandwiches using Great Value peanut butter purchased at a Wal-Mart store in Bellingham, according to the lawsuit. Linda Lee Oswald, of Kent, missed three days of work after she made peanut butter and jelly sandwiches using Peter Pan brand peanut butter.

On Feb 14, the FDA warned consumers not to eat either Peter Pan and Great Value brands of peanut butter with jars carrying the product code of 2111, manufactured at ConAgra's Georgia plant, and recalled products with that code purchased since May of 2006.

The suit, against ConAgra, Inc., was filed today in U.S. District Court for the Western District of Washington. It was filed by Seattle attorney Bill Marler, a specialist in food-safety cases who also filed suit in New York and Missouri last week against ConAgra.

Calls to ConAgra were not immediately returned.

The lawsuit estimates it may include over 3,000 potential class members. It excludes those who have been hospitalized or who died, whose cases would be handled separately, Marler said. He has been contacted by family members of four people who died after eating peanut butter, Marler added, but those cases have not been verified.

As of Thursday, the Centers for Disease Control and Prevention counted nearly 300 people in 39 states, including four in Washington, who have been sickened since August. Not all cases have been linked to the implicated peanut butter.

Marler said he expects the number to grow much larger. "From an epidemiological point of view, this has been one of the oddest outbreaks I've seen in 14 years of doing these cases," Marler said. Instead of happening all at one time, in specific areas, this outbreak has occurred over months, and has been spread out around the country.

Because people may buy peanut butter and keep it on the shelf for months, people are coming forward who have been sickened for months at a time, or have gone through cycles of being sick, then recovering, then re-infecting themselves by eating the contaminated peanut butter again, Marler said.

"There is an enormous miscount of the number of people sickened," he added, because most people who got sick were not tested, and were not suspicious of their peanut butter until last week.

Only those who tested positive to the implicated strain are counted by the CDC, he noted.

Marler said he plans to test about 1,500 jars of peanut butter for contamination. "Part of what we do is make sure that claims that are brought forward are legitimate and meritorious, because that helps the system move forward to correct itself," said Marler, who says he takes partial credit, through his lawsuits, for cleaning up the meat industry after outbreaks of E. coli, including one in Washington.

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RECENT UPDATE FROM FDA:

As of February 16, the FDA advised consumers not to eat any Peter Pan peanut butter purchased since May 2006 and not to eat Great Value peanut butter with a product code beginning with "2111" purchased since May 2006 because of risk of contamination with Salmonella Tennessee. Salmonella is a bacterium that causes foodborne illness, and “Tennessee” is a type of Salmonella. All Peter Pan peanut butter purchased since May 2006 is affected; only those jars of Great Value peanut butter purchased since May 2006 with a product code beginning with "2111” are affected. Although Great Value peanut butter with the specified product code has not been linked by CDC to the cases of Salmonella Tennessee infection, the product is manufactured in the same plant as Peter Pan peanut butter and, thus, is believed to be at similar risk of contamination. Great Value peanut butter made by manufacturers other than ConAgra is not affected.

Number of Cases and State Locations:

The Centers for Disease Control and Prevention (CDC) has identified 290 people from 39 states who have gotten sick from Salmonella Tennessee, the Salmonella type associated with this outbreak. Forty six (46) patients are known to have been hospitalized and there have been no reported deaths.

The 39 states with reported illness are: Alaska, Alabama, Arkansas, Arizona, California, Colorado, Connecticut, Georgia, Iowa, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Maryland, Maine, Michigan, Minnesota, Missouri, Mississippi, Montana, Nebraska, New Jersey, North Carolina, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, Vermont, Washington, Wisconsin and West Virginia.

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As Sarah Avery reported for newsobserver.com, E. coli cases keep increasing in North Carolina. So far, 24 cases have been confirmed and 33 cases are being studied to see whether the cases are related.

The most common link among the people who are sick is a trip to the State Fair last month -- in particular, to a petting zoo exhibit. Of the 33 cases under scrutiny, 15 have State Fair connections, one attended the Cleveland County fair, seven did not attend the fair and the remainder have not completed the investigator's questionnaire.

"If it does turn out to be a petting zoo, there are thousands of people who were exposed, and they are widespread," said Dr. Jeffrey Engel, state epidemiologist. "People came to visit from other states."

The outbreak is North Carolina's largest E. coli infection since a 2001 incident in Robeson County that stemmed from unpasteurized butter offered to schoolchildren during a demonstration. More than 200 grew sick.

Food contamination, particularly from beef that has come in contact with animal feces during slaughter and processing, is often the source of E. coli infections, but petting zoos are also common sources.

William Marler, a Seattle lawyer who has built a national practice filing lawsuits in E. coli and other contamination cases, said petting zoos are aware of the dangers of the business, and most provide hand-washing stations. But even the best of precautions can still fall short.

He said he represented 25 families in an unsuccessful Oregon case in which people grew ill after visiting the petting zoo. Half of the victims washed their hands; half didn't. Babies in strollers got sick despite never getting out of their strollers or touching the animals.

"The frustrating thing was, there wasn't a common denominator," Marler said. "We were trying to figure out what the fair did or should've done to prevent the outbreak."

He said two of the North Carolina families in the current outbreak have called him, but he does not know whether there is a legal case. Much depends on what state health investigators turn up and whether the outbreak is traced to the State Fair.

"When I was a kid taking my cow to the fair, nobody even heard of E. coli," Marler said. "That was 35 years ago. But since Jack in the Box, and with repeated fair outbreaks, we have to be more vigilant."

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