Food Poisoning Lawyer & Attorney : Marler Clark : Marler Blog

E. coli reporter, Josh Funk, and I had a chance to talk a bit following my speech to ConAgra’s Food Safety Council about Nebraska Beef Ltd.’s slow response to indications that its products might have been tainted with E. coli.  According to the FSIS, “Nebraska Beef was notified in the first half of June that two samples of its trim to be used in ground beef had tested positive for E. coli.”  You must wonder when this company will get a clue.  Will it be more illnesses?  More recalls?  More lawsuits (we just filed another)?  Or, perhaps criminal sanctions?  The company's products have now been linked to E. coli illnesses affecting 49 people in Georgia, Michigan and Ohio.  The meat recall announced last week was expanded from 531,707 to 5.3 million pounds.

I also talked to the Omaha World Herald about why ConAgra asked me to come to Omaha to speak to its Food Safety Council and executives responsible for food safety.  As I said:

"Paying attention to food safety is ultimately good for the bottom line and good for your company morally," Marler said.

Too often, Marler said, companies either ignore or do not recognize warning signs of food borne illness.

Marler credited ConAgra Chief Executive Gary Rodkin and other company executives for inviting him to speak.

"It says a lot for the company," Marler said.

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The widening cluster of E. coli O157:H7 infections in Georgia may be linked to an outbreak E. coli illnesses in Ohio and Michigan. The Moultrie Observer reports that preliminary testing has linked the at least 9 Georgia cases to the 41 in Ohio and Michigan, which have been traced back to beef products from Nebraska Beef Ltd. of Omaha.

E. coli infections began showing up in central Ohio in mid-June, paralleled by a sharp increase in E. coli cases in Michigan. By June 20, officials had genetically linked many of the Ohio and Michigan cases; the days that followed, the outbreak was traced to ground beef from Kroger stores. With illnesses nearing 30, Kroger initiated a voluntary recall on June 25. On June 30, FSIS announced that the tainted meat had been traced back to Nebraska Beef Products, and a recall of 531,707 pounds of ground beef products was initiated. On July 2, the Kroger recall widened to 20 states. On July 3, the Nebraska Beef recall was widened to include 5.3 million pounds. Georgia is not on the Kroger recall list, but is part of the Nebraska Beef recall.

Nebraska Beef Ltd. is already enmeshed in lawsuits stemming from tainted meat. In 2006, seventeen people were infected with E. coli O157:H7 after eating Nebraska Beef products prepared at a church dinner; one woman died. Nebraska Beef responded by suing the church. A lawsuit has just been filed on behalf of an Ohio resident who became ill from eating Nebraska Beef products in the recent outbreak there.

We also filed an additional lawsuit against Nebraska Beef today.  The recent filing occurred today in the United States District Court, Southern District of Ohio, Eastern Division, on behalf of Pickerington, Ohio resident Dawn Grieves, who was infected with the toxic E. coli strain O157:H7 after eating ground beef processed by Nebraska Beef Ltd.

The lawsuit states that Ms. Grieves consumed Nebraska Beef Ltd products in the early part of June, 2008 and fell ill on June 5. She began to have increasingly severe symptoms including abdominal cramps, vomiting, and diarrhea, which sent her to the emergency room on June 6. She was given medication and returned home. Her health continued to deteriorate, and when and samples taken during her ER visit revealed that she had been infected with E. coli O157:H7, she returned to the hospital. She was admitted on June 9 and remained there until June 13. She continues to recover from her illness.

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The families of 11 children sickened by E. coli bacteria in a school lunch nearly five years ago will likely get the $4.6 million awarded by a jury.

A Benton County Superior jury awarded $4.6 million in early 2001 after finding the district at fault for serving undercooked meat in tacos to Finley Elementary School students in October 1998.

The district's insurers had asked the state's highest court to consider the case, but the justices refused on Thursday for the second time.

Marler Clark's Denis Stearns said:

"The only option remaining is to ask the high court to reconsider, but succeeding in that bid would be highly unlikely in a case the justices have twice refused."

The affected families are glad the court battle is over. Five years have passed since the kids ate the tainted taco lunch, and these families still have medical bills to pay.

2-year-old Faith Maxwell was awarded $3.6 million, plus past medical expenses, even though she didn't eat the contaminated taco meal. She was infected by a child who ate the lunch and suffered serious kidney problems that are expected to cause her kidneys to fail.

The other 10 children's awards started at $1,200 plus medical expenses. Children besides Faith who had kidney problems and were taken to Children's Hospital in Seattle were awarded about $275,000, plus past medical expenses.

Most of the money not spent on medical expenses so far will be held in trust for the children's education and medical expenses.

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Last week the Washington State Supreme Court affirmed a Jury's verdict of $4.75 million against a small, rural School District for undercooking hamburger that was contaminated with the deadly pathogen, E. coli O157:H7 and was served to elementary students for lunch in the Fall of 1998. Justice for these children, one who suffered severe kidney failure, was long in coming. The big issue is not the money, no matter how well deserved. The issue is that the contaminated meat was sent to the school through the National School Lunch Program by the same Governmental agency supposedly responsible for meat safety - the USDA.

The National School Lunch Program feeds over 25 million children in over 93,000 schools in the Untied States with a budget of over $5 billion. However, is the food safe? Is the raw material prepared properly? Is there poison in our schools? According to the General Accounting Office (GAO) in a study published in 2003, the answers to those questions are a resounding - maybe. The GAO found that between 1990 and 1999, 195 outbreaks of foodborne illnesses occurred in our schools, sickening thousands of children.

The GAO study shows that half of school-related outbreaks were caused by poor preparation techniques by foodservice workers - like those that cost a School District $4.75 million. Interestingly, the remaining outbreaks were caused by unknown reasons or by contaminated raw material. In one instance, three dozen students and three teachers were poisoned by USDA chicken contaminated with ammonia that leaked from refrigeration lines while the chicken was being stored. Health officials found that the tainted chicken showed ammonia levels 133 times the acceptable level.

Fortunately, these grade-school children were not severely injured. But criminal charges are pending against Illinois school officials who knowingly allowed the USDA contaminated chicken to be used in the schools. Unclear as yet is the knowledge that the USDA itself had of the contaminated chicken before it was shipped to School Districts in the Chicago area in the fall of 2002.

Food safety concerns are not confined to the cafeteria. Contaminated foods have also been linked to school-sponsored special events, lunches brought from home and food prepared and served in the classroom. One outbreak in North Carolina involved a teacher who brought unpasteurized butter that was contaminated by E. coli O157:H7 to school. Over 50 children were sickened, two suffered kidney failure.

Do we stop feeding our kids?

Do we stop bake sales and special events?

Absolutely not. For some of our children, a hot school lunch may be one of the best meals of the day. According to the USDA, more that 15 million low-income children receive a free or reduced-price lunch daily. We can not afford to reduce this support for fear of litigation.

So, what do we do to feed our kids safely?

Start at the source.

A comprehensive and cost effective approach to food safety protects our kids and protects a school's budget.

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The Washington Supreme Court today declined to review last year's Court of Appeals decision upholding a $4.6 million award to 11 children injured in a 1998 E. coli O157:H7 outbreak that was linked to undercooked taco meat served as part of a school lunch at Finley Elementary School. School District had sought the Supreme Court's review arguing that school districts should not be held legally responsible if ill-prepared food sickens or kills a student. The Supreme Court refused to consider the argument.

Denis Stearns, one of the founding partners at Marler Clark, said:

"Washington State has a long history of holding school accountable when the children in their care are injured or killed. We believe that the Supreme Court's decision today reaffirms the principle that, when it comes to preparing food for their students, a school's foodservice operation should be held to the same high standard as any other restaurant licensed to operate in this State."

"School-aged children are more vulnerable than most when it comes to exposure to contaminated food. Those who argue for lower-standards plainly do not understand what the problem is, or what is truly at stake. If anything, schools should be held to the highest standards. These are our children we are talking about."

In its investigation of the outbreak, the Washington State Department of Health found that the Finley School under-cooked the taco meat. The Department further found the "differences in the preparation, handling, and transport of meat may have allowed for uneven cooking, uneven cooling, and uneven re-heating at the elementary school. This outbreak and the resulting investigation highlight the importance of regular inspections of institutional kitchens and the need for training of food service workers."

In declining to accept review of the Court of Appeals decision, the Supreme Court foreclosed any further legal options for the school district and its insurers. Stearns said:

"While this day has been long in coming, it is a day that our clients are grateful for. They will get the compensation that the jury found them so deserving of, and can now get on with their lives."

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There's nothing more American than the county fair. From Washington and California to New York and Texas, countless millions of people are visiting their local fairs to ride the rides, feast on cotton candy and hot dogs, and to visit those cute farm animals.

Unfortunately, some of the visitors to fairs will get very sick. And the sickest ones, most of them small children, may be close to death before their doctors identify the cause - a relatively new strain of deadly bacteria known as E. coli O157:H7.

Since 1995, thirteen outbreaks of E. coli O157:H7 have been reported at fairs and petting zoos. Thousands have been sickened. Many escape with a bad case of diarrhea and cramps. But some, mostly kids, have suffered permanent damage to their kidneys.

And some have died.

A year ago, at least 82 people became sick after attending the Lane County Fair in Eugene, Oregon. Most were young children, and 22 of them were hospitalized - twelve with kidney failure.

Oregon Health Services eventually traced the infections to the goat and sheep exposition hall, and investigators believe the bacteria were possibly transmitted through the ventilation system.

In 2000, at least five children were sickened after visiting a petting zoo in Snohomish County, Washington. The cause was not determined, but the children ate their lunches after petting the animals.

In August of 1998, at least 781 people became ill after attending a fair in Washington County, near Albany, New York. Of those, 71 were hospitalized and two eventually died from kidney failure. The cause: water contaminated by a neighboring farm.

The list goes on -- Pennsylvania, Wisconsin, Ohio, each sickening people with a bacterium carried by livestock. In 2001 the CDC warned operators of petting zoos and county fairs to clean up.

So what do we do? Banish the county fair? Of course not. But fair organizers can take some rather simple and inexpensive precautions.

Perhaps these precautions won't eliminate the risk to public health. But, for a minimal investment, organizers can reduce the risk of sending kids to the hospital - or worse. And, at the same time, they can put lawyers like me out of business.

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Marler Clark filed a lawsuit today against the Lane County Fair Board on behalf of 29 individuals and families of individuals who were infected with E. coli O157:H7 during an outbreak at the Lane County Fair last summer.

A number of fairs and petting zoos have been implicated in E. coli outbreaks in recent years. The Lane County Fair Board should have been aware of risks to patrons, and taken the necessary precautions to prevent this outbreak. These kids were severely injured, and many may suffer from complications of their E. coli infections later in life. Someone needs to be held responsible for what they went through.

I recommended taking the following steps to prevent outbreaks at future fairs:

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Two dozen people sickened by the biggest E. coli outbreak in state history filed a lawsuit Wednesday against the Lane County Fair Board, claiming the board didn't do enough to protect fairgoers given similar outbreaks in other states.

Eighty-two people became sick at the fair -- nearly two-thirds of them younger than age 6. Twelve children were treated at Portland hospitals for hemolytic uremic syndrome, or HUS, a potentially fatal complication of E. coli infection that causes kidney failure.

Tim Outman and Kimberly Kessel took their boys, Makyah and Kyler, to the fair on Aug. 17. The parents pushed the boys through the animal barns in a double stroller. At one point, Makyah got out to inspect a mother pig nursing her piglets and put his hands on the railing of the pen, Kessel said. She wiped off his hands afterward. Kyler, now 2, never got sick. But within days, Makyah, now 4, became violently ill with cramps, abdominal pain, bloody diarrhea, vomiting and fever.

They took Makyah to Doernbecher Children's Hospital in Portland for three days to treat his HUS. The boy avoided dialysis and blood transfusions and today seems to be doing fine, with no sign of permanent damage, Outman said. Outman and Kessel are both artists. They live in Eugene and have a studio in McKenzie Bridge. They don't have health insurance and incurred about $15,000 in medical expenses during their son's illness.

Outman called the fair board after the outbreak and asked it to cover their medical bills. He said he was told to send a copy of the bills to the fair board for coverage. But when he called back after sending in the bills, he was told the county wouldn't cover their expenses. That's why they decided to join the suit.

"The fair board didn't seem to use a reasonable amount of care to prevent this," Outman said. "If someone comes on our property and gets injured, the standard we're held to is warn people or make it safe, and the fairgrounds did neither of those."

While Outman and Kessel hope their son won't have long-term health problems, many children who get HUS develop serious complications later in life and require lifelong medical care.

Carson Walter, the 2-year-old daughter of William and Shelly Walter of Eugene, spent 31 days at Doernbecher and underwent 17 rounds of dialysis, a process that filtered toxins and excess water from her blood.

Today, Carson "seems to be fairly stable," though she's still taking blood pressure medicine, her mother said. The long-term damage to her kidneys won't be known until she's 10 or 12.

Madeleine Closson, 3, is doing well 10 months after she spent 15 days and underwent three surgeries at Doernbecher after she developed HUS, said her father, Kevin Closson of Portland. "That's a hell of a lot to put a kid through," he said. But she often wakes up in the middle of the night, gets headaches and routinely suffers painful stomachaches, he said, though he's not sure whether those are complications of her E. coli-induced illness.

Lane County Commissioner Bill Dwyer said he doesn't think the county or the fair board can be held liable for the outbreak.

"Whenever you're around animals, there's a risk you have to take," he said. "The question is, was it reasonable what the county had done? I'd say it was probably the cleanest fair we ever had. You take some risks when you allow your children to peruse among animals," Dwyer said.

Even with the cap on damages, the Lane County Fair pays about $61,000 a year for a $5 million general liability insurance policy to guard against federal lawsuits, out-of-state claims or contractual liability claims.

I will challenge the constitutionality of the state's "tort caps," as they're known. If I win, I'll ask the jury to award damages that would compensate at least some victims for a lifetime of medical care -- sums that would likely run into millions of dollars and exceed the state cap.

The trial judge would then decide whether the cap applied. Whichever side lost that argument would appeal to the state Court of Appeals and ultimately to the state Supreme Court -- a process that could take years.

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The family of one of the teens that contracted E. coli poisoning at a Washington camp last summer has sued Spokane Produce Inc. County health officials implicated the firm's romaine lettuce as the possible source of infection. But Spokane Produce says the lawsuit hinges on a flawed investigation by local health officials and that the scientific evidence falls short of implicating the company's product.

Last July, health officials investigated an E. coli O157:H7 outbreak at a summer dance camp after some 50 campers complained of nausea, vomiting and other gastrointestinal symptoms. Investigators with the Spokane Regional Health District conducted several inspections of the camp, tested water samples, interviewed food service staff, and polled campers on diet choices in search of the cause of the outbreak. By July 31, 33 cases of E. coli O157:H7 were confirmed by culture in Spokane County. The food surveys showed a strong association between a salad offered at the camp and a culture-confirmed gastroenteritis, said a report issued by the Spokane Regional Health District.

At the same time, reports of E. coli infection sprung up in other locations; some samples matched the campers' stool samples, while others didn't. Those patients whose infection matched the campers remembered eating a salad containing romaine lettuce at Walla Walla and Spokane restaurants, both of which were later traced to Spokane Produce, said the local health department's report.

With data from the dance camp and the Walla Walla case, FDA moved quickly to implicate Spokane Produce's romaine lettuce as the culprit and issued a nationwide alert advising the public to throw out the company's bagged, prewashed, precut romaine lettuce. Sources say documents unearthed in preparation for the legal battle show Washington health officials were concerned that FDA moved too fast to issue the product withdrawal announcement.

Company says the investigation was mishandled.

FDA investigated the Spokane Produce plant, took hundreds of samples and found no evidence of E. coli O157:H7 at the company facility, nor has any E. coli O157 been found on any of the company's lettuce, said Gregory Arpin, an attorney who represents Spokane Produce.

The company says the investigation was mishandled, because health investigators sent out an incomplete survey to campers and employees who were asked whether they ate a Caesar salad with romaine lettuce at a July 11 dinner. Investigators failed to mention in the first survey that a tossed salad, with lettuce supplied from another company, was also offered that night. To clarify the survey, investigators sent another survey out on July 31-Aug. 1, just after FDA had sent out its July 29 nationwide warning about romaine lettuce. The risk ratio of people who got sick after eating the Caesar salad dropped when results of the second survey were analyzed, Arpin said.

Concerning the Walla Walla incident, documents show lettuce from Spokane Produce was either already consumed or thrown out by the time that person could have been served the salad, the company will argue. The surveys, which are critical in outbreak investigations, could raise questions about the scientific evidence supporting the government's charge that only romaine lettuce could have caused all the illnesses. The produce firm also suggests that other leads, such as whether the water supplied in the camp or whether at least one camper who showed up already sick at the Washington camp, weren't followed up on.

I say not enough was done.

Spokane Produce washed and cleaned the lettuce, but it was not enough. Kids still got sick. My client, Angela Hadley, developed hemolytic uremic syndrome, a life-threatening condition, and may have long-term kidney problems as a result of exposure to E. coli O157:H7. The likelihood that another source caused the outbreak is slim, since health investigators found other people whose illness matched the campers' fingerprint and who ate the lettuce.

The lawsuit is based largely on the county health department's report on the outbreak and the government's conclusion that the produce company should be held responsible for her illness. Even if FDA moved too quickly to issue the warning, it doesn't mean they got it wrong. An investigation of the Eastern Washington University Dining Service, which administered the meals at the camp, didn't identify any food handling practices that might have been a probable source of contamination of the salad.

The lesson for the industry is that produce companies need to learn as much as they can about their suppliers, make clear in contracts where the responsibility lies in the event of a mishap, and have sophisticated traceback systems in place. Some of the California farms that supplied the company's romaine lettuce followed better sanitation procedures than other suppliers.

For now, both sides of the case are waiting on a missing piece in the puzzle: the state health department's report on the outbreak. That report, which has been delayed due to internal personnel changes and competing public health priorities, is close to being completed and may be available in the next few weeks. It will include an analysis of the epidemiological evidence gathered in the case. FDA is not expected to issue a similar report.

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In the wake of the now infamous ConAgra ground beef recall that sickened scores of Americans coast to coast, I called upon anyone who would listen in my op-ed piece for the Denver Post to put me out of business - please. I said:

"For this trial lawyer, E. coli has been a far too successful practice - and a heart-breaking one. I am tired of visiting with horribly sick kids who did not have to be sick in the first place. I am outraged with a food industry that allows E. coli and other poisons to reach consumers, and a President, Congress and federal regulatory system that does nothing about it."

I offered a few common sense solutions:

Of course, none of this will eliminate the threat of E. coli entirely, but these steps will enable us to detect it far more quickly, to alert stores and families, and to keep our most vulnerable citizens - kids and seniors - out of harm's way. And, with a little luck, I'll be forced to find a new line of work.

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