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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

CNN Money reported this afternoon that food maker giant, ConAgra Foods (NYSE:CAG) Inc., said that it has resumed producing Banquet and private label pot pies a month after they were recalled after being linked to salmonella illnesses. The pot pies made by ConAgra have been linked to at least 272 cases of salmonella in 35 states. The federal Centers for Disease Control and Prevention said at least 65 people were hospitalized as part of the outbreak.

Conagra said shipments to retail customers are expected to begin in December and consumers can expect to see the pies in retail stores by January (I can not wait). The company belatedly recalled all pies produced at its Marshall, Missouri plant (which we have a Court Order to enter) October 11 after the products were linked to cases of salmonella. ConAgra faces several lawsuits (actually, five) related to the recall, which was the second ConAgra recall this year due to salmonella (remember Peter Pan). ConAgra said it expects the pot pie recall to cost about $30 million, or 4 cents per share.

Hmmm, I bet ConAgra wishes it would have spent that money on upgrades of the plants instead of potential settlements on behalf of injured people.  I also spoke with Joe Ruff of the Omaha World Herald about ConAgra resuming production and the lawsuit we filed against it in its home state:

ConAgra's menu again has pot pies


Full Article Below:
ConAgra Foods Inc. said Wednesday that it had enhanced its food safety procedures and resumed making frozen Banquet and private-label pot pies, which the company recalled last month after they were linked to salmonella illnesses.

The company said it would ship the pot pies to stores beginning in December, and they should be back on store shelves as soon as January.

"We apologize to any consumer who became ill from eating any of our pot pies," Chief Executive Gary Rodkin said in a statement. "I would like to assure our consumers, customers and investors that the food safety conditions and operating processes throughout our manufacturing network are strong."

Product testing indicates the salmonella contamination was isolated to Banquet turkey pot pies produced on July 13 and July 31, ConAgra officials said. No salmonella contamination was found in the Marshall, Mo., plant were the pot pies were made, the company said.

ConAgra recalled all turkey, chicken and beef pot pies on Oct. 11. The company had issued an advisory Oct. 9 warning people against eating turkey and chicken pot pies while the investigation continued.

Bill Marler, a Seattle attorney who specializes in cases of foodborne illnesses, said he did not take issue with ConAgra resuming production.

It might be too early to determine exactly which production dates were involved in any contamination, however, Marler said.

"As more health departments come in, we might get a better sense of the breadth of period of time contamination was in the plant," Marler said.

Marler's firm has filed several lawsuits against ConAgra on behalf of people who said they became ill after eating Banquet or private-label pot pies made by the company.

One lawsuit was filed in Nebraska on behalf of Amy Eberle of Minden, who said her son became ill after eating a Great Value-brand chicken pot pie that she purchased from a store in Kearney.

The national Centers for Disease Control and Prevention has said a specific strain of salmonella had sickened more than 270 people in 35 states, and interviews with people who had become ill pointed to Banquet pot pies as the likely source.

At least three Banquet pot pies taken from the homes of people had tested positive for the salmonella bacteria found in the outbreak, the federal agency said.

ConAgra said it has developed new and more stringent testing for ingredients coming into all its ready-to-cook manufacturing plants, as well as more testing of finished products. It worked with the U.S. Department of Agriculture at the Marshall plant on the new procedures before resuming production , the company said.

Cooking instructions on pot pies also have been revamped to eliminate potential confusion regarding cooking times, ConAgra officials said.

Before the recall, people may have undercooked the pot pies, particularly in microwave ovens that have varying power levels, company officials had said.

The recall could cost ConAgra about $30 million, or 4 cents per share, most of which will be recorded in the fiscal second quarter, the company said.

Stronger-than-expected earnings from trading and merchandising will help offset the recall costs for the full year, ConAgra said. Full-year guidance will be provided when the second-quarter report is issued Dec. 20, the company said.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I leave in the morning (a few hours away actually) to NYC in part to meet several new clients from the Topps E. coli outbreak, but also to meet with representatives of YUM Brands to try and resolve several E. coli cases stemming from the Taco Bell E. coli outbreak of 2006. Interestingly, today, YUM Brands outlined its third-quarter financials:

The domestic division of YUM Brands has been struggling. In the company's third quarter, U.S. profit grew only 1 percent. Even worse, same-store sales, or sales at stores open at least a year, dropped 6 percent at Taco Bell. Much of the problem rests with the Mexican fast food chain, which is still reeling from an E. coli outbreak last year and publicity related to a rat infestation in a KFC/Taco Bell New York City restaurant in February.

The company says its U.S. business is starting to turn around and sees signs of a recovery at Taco Bell. "With each month that passes, those memories tend to fade from the consumers' minds," says Morningstar analyst John Owens.

Hopefully, we will be able to resolve all the cases without the necessity of further litigation.  There is nothing like a little litigation to help folks remember things - perhaps we can re-run the famous YouTube video shot in NYC:

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I had a nice chat with Mike Keefe-Feldman of the Missoula Independent about John Munsell, the owner of Montana Quality Foods meat packing plant, who is suing the USDA. As the Independent puts it, it's a lawsuit which "if successful, could bring about the most significant changes to America's meat-inspection system since the Federal Meat Inspection Act of 1906 tried to limit the amount of crap one could legally shovel into a sausage."

"This is a watershed moment for meat inspection and public health," Munsell writes in a statement describing his motivation. In a phone interview, Munsell explains that his suit wouldn't be necessary had the USDA not fallen victim to "agency capture," meaning that a number of high-ranking USDA officials have come from within the corporate meat packing industry and are now unwilling to implement practices that could hurt the industry financially. Instead, Munsell says, the agency has turned to reliance on ineffective industry self-policing measures.

"The USDA doesn't have the courage to do its job anymore," he says.

Munsell's meat packing plant was shipped E. coli contaminated beef from ConAgra as early as January 2002. But when Munsell notified the USDA, the only action taken was to make Munsell rewrite his Hazard Analysis Critical Control Point plan 14 times and pay for additional testing while suspending him from grinding his own beef for four months. In the end, Munsell was right. The end result was a 2002 recall of nearly 19 million pounds of ConAgra beef. Munsell is suing for more than just compensation for what he perceives as retaliation for his whistleblowing. He's also suing to change the system.

Bill Marler, a Seattle-based managing partner at the law firm of Marler Clark and thenation's leading food-illness lawyer, called Munsell "the Don Quixote of the system for the USDA" in a phone interview with the Independent.

Marler says the public typically isn't aware of the magnitude of the E. coli problem because, as in many of his own cases, those who suffer from E. coli receive compensation only by signing a gag order, thus keeping outbreaks out of the public eye.

"Lots of cases that deal with restaurant chains never show up on our website because they pay my clients millions of dollars for a confidentiality agreement," Marler says.

The Centers for Disease Control reported 443 confirmed cases of E. coli in 2003. Marler says the number is probably much higher, because E. coli in humans often goes unreported, since symptoms typically don't show until about three days after consumption of contaminated food. Researchers at the University of Wisconsin-Madison conclude that E. coli causes approximately 75,000 illnesses a year in the United States, ranging from severe diarrhea to death. Marler says he sees about 100 cases in a year, but even if Marler wins settlements for those affected by E. coli, Munsell says that a larger problem within the system goes unchecked.

"When the [affected] family takes their well-deserved money, nothing else is done [by the USDA]," Munsell says. "No improvements are then made to the meat system. A year ago, Con Agra reported their annual net income as $1.9 billion. So if they have to pay a family $200,000, it's no big deal."

Munsell is facing an uphill battle for sure, but good for him.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Wall Street Journal article "McDonald's Callousness Was Real Issue, Jurors Say, In Case of Burned Woman" sheds some much-needed light on the McDonald's coffee case.

When a law firm here found itself defending McDonald's Corp. in a suit last year that claimed the company served dangerously hot coffee, it hired a law student to take temperatures at other local restaurants for comparison.

After dutifully slipping a thermometer into steaming cups and mugs all over the city, Danny Jarrett found that none came closer than about 20 degrees to the temperature at which McDonald's coffee is poured, about 180 degrees.

Despite these findings, McDonald's refused to settle out of court. Apparently, they didn't think a jury would "punish a company for serving coffee the way customers like it." And at first, that's how jurists felt. Then they learned the facts.

What the jury didn't realize initially was the severity of her burns. Told during the trial of Mrs. Liebeck's seven days in the hospital and her skin grafts, and shown gruesome photographs, jurors began taking the matter more seriously. "It made me come home and tell my wife and daughters don't drink coffee in the car, at least not hot," says juror Jack Elliott.

Even more eye-opening was the revelation that McDonald's had seen such injuries many times before. Company documents showed that in the past decade McDonald's had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.

Enter callousness:

Some observers wonder why McDonald's, after years of settling coffee-burn cases, chose to take this one to trial. After all, the plaintiff was a sympathetic figure - an articulate, 81-year-old former department store clerk who said under oath that she had never filed suit before. In fact, she said, she never would have filed this one if McDonald's hadn't dismissed her requests for compensation for pain and medical bills with an offer of $800.

But McDonald's didn't bite.

As the trial date approached, McDonald's declined to settle. At one point, Mr. Morgan says he offered to drop the case for $300,000, and was willing to accept half that amount.

Instead, McDonald's continued denying any liability for Mrs. Liebeck's burns. The company suggested that she may have contributed to her injuries by holding the cup between her legs and not removing her clothing immediately. And it also argued that "Mrs. Liebeck's age may have caused her injuries to have been worse than they might have been in a younger individual," since older skin is thinner and more vulnerable to injury.

Facts + callousness = overwhelming verdict

When the panel reached the jury room, it swiftly arrived at the conclusion that McDonald's was liable. "The facts were so overwhelmingly against the company," says Ms. Farnham. "They were not taking care of their consumers."

Then the six men and six women decided on compensatory damages of $200,000, which they reduced to $160,000 after determining that 20% of the fault belonged with Mrs. Liebeck for spilling the coffee.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Center for Justice & Democracy has published a story called MYTHBUSTER! THE MCDONALD'S COFFEE CASE" AND OTHER FICTIONS to tell the true story of the often misunderstood and misrepresented case of the 79-year-old woman who sued McDonalds after she received third-degree burns over 16 percent of her body from spilled coffee.

The "McDonald's coffee" case. We have all heard it: a woman spills McDonald's coffee, sues and gets $3 million. Here are the facts of this widely misreported and misunderstood case:

Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson's car having purchased a cup of McDonald's coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald's for $20,000. However, McDonald's refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck's attorney, S. Reed Morgan, the jury heard the following evidence in the case:

1. By corporate specifications, McDonald's sells its coffee at 180 to 190 degrees Fahrenheit;

2. Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;

3. Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years;

4. The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;

5. McDonald's admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail;

6. From 1982 to 1992, McDonald's coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;

7. Not only men and women, but also children and infants, have been burned by McDonald's scalding hot coffee, in some instances due to inadvertent spillage by McDonald's employees;

8. At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;

9. Witnesses for McDonald's admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald's required temperature;

10. McDonald's admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;

11. McDonald's witnesses testified that it did not intend to turn down the heat -- As one witness put it: "No, there is no current plan to change the procedure that we're using in that regard right now;"

12. McDonald's admitted that its coffee is "not fit for consumption" when sold because it causes severe scalds if spilled or drunk;

13. Liebeck's treating physician testified that her injury was one of the worst scald burns he had ever seen.

Morgan, The Recorder, September 30, 1994. Moreover, the Shriner's Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald's behavior "callous." Moreover, "the day after the verdict, the news media documented that coffee at the McDonald's in Albuquerque [where Liebeck was burned] is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict." Id.

• Email This
• Print
• Comments
• Trackbacks
• Share Link