Marler Blog : Food Poisoning Lawyer & Attorney : Bill Marler : Marler Clark

South View - Eagle Harbor with tomatoes, peas, beans, lettuce, spinach, carrots, beets, strawberries, peppers and corn.

North View

This is our second year with this garden.  I grew up with a big garden and cows, horses, pigs, sheep, chickens, turkeys, rabbits and a few too many cats and dogs.  Now, a small garden and a lazy dog and a crabbie cat.

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All things turn out OK sometimes:

New York Times - For Personal-Injury Lawyer, Michael Pollan’s Book Is Worth Fighting For

The Chronicle of Higher Education - Washington State U. Reinstates 'The Omnivore's Dilemma' as Common-Reading Choice

The Daily Evergreen - The Donation revives Common Reading

Seattle Business Journal - E. coli lawyer solves WSU ‘Dilemma’

Tri-City Herald - WSU reinstates book critical of agribusiness

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The recall of Salmonella-tainted peanuts and peanut products processed and produced by the Peanut Corporation of America has caused one of the largest food recalls in US history; almost 4000 products made by hundreds of companies have been withdrawn, and the number is still growing. The 700 culture-confirmed cases of Salmonella indicate a much higher number of unreported illnesses – the actual number is probably close to 25,000. At least nine lost their lives. Beyond this terrible human toll, the financial toll on businesses and the American food supply has been staggering.

How did it happen? How did a single peanut processor in rural Georgia cost the American economy over a billion dollars? The two factories run by PCA only processed 2.5% of the annual US peanut crop, but their actions had huge repercussions. The investigations into the actions of the Peanut Corporation of America have revealed that PCA repeatedly retested product until a clean sample was obtained, shipped product that they knew was contaminated, and did not act on recommendations from the FDA to clean up their act.

It’s too easy to point to the company as a “bad actor” - an isolated case. There was a similar widespread outbreak of Salmonella in peanut butter two years earlier, centered not 75 miles from the Georgia plant. Unbelievably, this did not appear to affect how PCA ran its business, or how they were inspected or regulated so it can - and may - happen again.

Let’s start with the human toll, which is what I know best. My firm represents over 100 people who were sickened by the Salmonella and two families who lost a family member to it. One of our clients, Clifford Tousignant, won three purple hearts in the Korean War, but lost his life to peanut butter. Another family’s three-year-old son got sicker and sicker as his pediatrician allowed him his favorite food during his illness - the peanut butter crackers that later turned out to be the source of his infection. Hundreds of families spent time and money in emergency rooms and Intensive care units as their family members struggled with their illnesses. Although no one can put a price tag on human suffering and loss, these claims will probably settle in the range of 30-35 million dollars. That’s serious money, but most of it will be covered by insurance. Those settlements will be, well, peanuts, compared to the other costs surrounding the nationwide recall.

Recalling tainted food is the right thing to do – for legal and ethical reasons as well as basic public relations. But recalls come with astounding costs. One of my good friends in the food-processing industry estimates that the peanut recall will cost well over $500 million. It’s impossible to assign precise numbers, but you can start with the costs of tracking down, retrieving and transporting millions of items, most of which have already found their way onto retail shelves and kitchen cabinets. Kellogg, just one of the companies that recalled products recently, has estimated those costs at $75 million – for just one company.

Then there are the lost sales – not just of the tainted products themselves, but also of related peanut products that may be completely safe. The tomato-Salmonella recall last year resulted in $100 million in lost tomato sales – even though the real culprit proved to be peppers. In 2006, E. coli-tainted spinach cost that industry over $175 million - even though the outbreak was linked to just one fifty-acre farm in California. Peanut sales already have plummeted by more than 25 percent. Demand is down and peanut fields are lying fallow. The peanut industry estimates the loss is over one billion dollars in lost production and sales.

Let’s not forget the costs of advertising and public relations aimed at restoring consumer confidence. We have already seen expensive newspaper ads from peanut butter-makers, reassuring readers that their product is safe. What about the cost of restoring tainted brands?

Those in the chain of distribution are feeling the effects as well. Suppliers may or may not have to reimburse retail stores for lost sales. Large retailers like Wal-Mart include such reimbursement in their contracts; small businesses probably don’t do that, but suppliers may reimburse them anyway. And, then there are the losses to stock prices. One major food processor lost $1 billion in stock value following an E. coli outbreak. Imagine what’s happening to peanut stocks these days.

The Big Guys – the Kelloggs and ConAgras and Jack-in-the-Boxes – can sustain those losses. Not so the smaller retailers. My heart goes out to mom-and-pop businesses like Betsy Sanders of Santa Clara, California whose small business supplies cookies for local Parent Teacher Association and marching band fundraisers, and who now has to reimburse her customers for recalled products that contained peanut butter from PCA.

Is anyone keeping track of the math? Let’s call it $1.5 billion - just because of the actions of one small player in the peanut industry. The likely costs of compensating their sickened customers are a tiny part of that number; virtually none of the rest of that $1.5 billion will be covered by insurance. In an economy already battered by failing banks, lost jobs and scarce credit, people will be driven out of business. And, it was preventable.

As I was preparing this speech, the Food and Drug Administration announced that President Obama’s 2010 proposed budget included an increase of almost 20% for the FDA, including almost $260 million for better food safety. That sounds like big money, but if it can prevent a single billion-dollar recall and prevent citizens from being sickened, it’s a step in the right direction. However, there are a few other things that I would suggest.

First, be honest with the American Public. With 76,000,000 foodborne illness cases yearly, 325,000 hospitalizations and 5,000 deaths, our food supply might be safer than some – but it is not safe enough.

Second, put food safety on the “front burner” and turn up the heat. It is time that we commit to the American Public to get animal feces out of our food. How to do it - Here are my “top ten” ideas to combat this recurring epidemic:

- Improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.
- These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source. That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.
- Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill.
- Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.
- Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring. We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.
- We need to reform federal, state and local agencies to make them more proactive, and less reactive. This too requires financial resources and accountability. We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.
- There are too few legal consequences for sickening or killing customers by selling contaminated food in the US. We don’t need to impose the death penalty, as China did recently. But, we should impose stiff fines, and even prison sentences, for violators, and even stiffer penalties for repeat violators.
- We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.
- We need to promote university research to develop better technologies to make food safe and for testing foods for contamination.
- We need to provide tax breaks for companies that push food safety research and employee training.
- And, we need to improve consumer understanding of the risks of foodborne illness.

Last year I testified before the US Congress and laid out the above 11 points. I told them the time has come to act and not continue simply to react. Consumers, Farmers, Suppliers, Manufacturers, Retailers, Regulators and Politicians need to work together to make our food supply safe, profitable and sustainable. When a quarter of our population is sickened yearly by contaminated food, when thousands die, we do not have the “safest food supply in the world.” We should, must, and can do better.

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By Ross Anderson (former Seattle Times reporter) for King County Bar News

When Wyoming public health workers convened at a Cody meeting room recently, they spent much of three days listening to various authorities bring them up to date on issues from prenatal care to septic tanks to bioterrorism. But the keynote address did not come from a physician; it was delivered by a lawyer.

"Chasing ambulances is only part of what I do," Bill Marler told them, drawing a ripple of chuckles across the room of about 125 people. "I represent people who are some of the most vulnerable in our society -- kids who face a lifetime of kidney damage and possible transplants, all because they ate an undercooked hamburger."

And he wanted his audience to know that he and public health officials are, or should be, on the same side of those issues.

Marler and his Seattle firm, Marler Clark LLP, specializes in representing people sickened by food-borne illness -- excruciating and sometimes fatal disorders caused by toxins such as E. coli O157:H7, Salmonella and hepatitis A. In the past decade, the firm has won more than $300 million in judgments and settlements from corporate giants across the United States.

And yet as Marler travels the country for his clients, he makes frequent stops at hotel meeting rooms to talk -- at no charge -- to public health departments and environmental health associations, and to trade groups for the restaurant, supermarket, and meat-processing industries.

His basic message: Make my day. Take the logical, common sense precautions, and this society can virtually eliminate food-borne illness, and therefore the lawyers who are associated with it. Put me out of business, please.

It is an unexpected message, coming from an unusual lawyer.
A Washington native, Marler studied at Washington State University and the Seattle University Law School. "I hated law school," he told his Wyoming audience. "It weeds the wrong people out of the profession. It almost weeded me out."

As a 19-year-old student at WSU, he discovered his penchant for politics, running successfully for the Pullman City Council in 1977. That experience provided an early lesson -- that law and politics are inseparable, that one can’t succeed in one without at least understanding, and preferably indulging in, the other.

After several years of trial work in Seattle, Marler's big break came in 1993 when the San Diego-based Jack in the Box chain was caught up in an outbreak of E. coli O157:H7, the notorious toxin that travels in the intestines of certain animals -- especially cows. Marler represented several children, including Brianne Kiner, the Seattle girl who was one of those most-critically sickened and who became the poster child of the outbreak.

The lawyer tracked down evidence that Jack in the Box was undercooking its hamburgers, despite suggestions from its own employees to cook them more thoroughly. Ultimately, he won a staggering $15.6 million settlement for Brianne.

Marler was on his way. He moved his wife, Julie and daughters, Morgan, Olivia and Sydney into a waterfront home on Bainbridge Island. He indulged his taste for a good Cuban cigar and single-malt scotch. He set up his own firm in the Bank of America Tower along with former Jack in the Box attorneys Bruce Clark and Denis Stearns. He took on one corporate food chain after another -- Costco, Kentucky Fried Chicken, McDonalds, Sizzler, Hardees, Wendy’s -- winning seven and eight-digit settlements and verdicts for his young clients.

But Marler decided early that he would rather succeed without having to see "five-year-old kids hooked up to kidney dialysis machines, dying slow and painful deaths -- just because Mom bought them a hamburger."

"It didn’t make sense. Somebody has to make these companies accountable for the food they serve to innocent people."

When necessary, Marler found he could apply pressure by working with the media. "But it wasn’t fast enough. There were still too many kids getting sick."

So he founded Outbreak Inc, a not for profit housed in the Marler’s law offices, which provides resources to health workers and companies that want to train their employees on how to avoid E. coli and other food borne illness. Marler estimates that he has spoken to groups of public health officials in 20 States, from New York to Florida and California, and that he has spoken at as many as 50 food-industry meetings. He was the recent key-note speaker at a national CDC conference.

At the same time, he became a major contributor -- in time and money -- to an advocacy group called Safe Tables Our Priority, or STOP.

He has become a powerful voice in State and national politics, raising money for former Washington Gov. Gary Locke and holding fundraisers for a wide range of state and national candidates. He even considered running for Congress and Senate himself. But eventually figured he could be more effective as a lawyer than as a politician.

His speaking engagements around the country serve multiple purposes, Marler says. Each meeting with public health officials helps foster cooperation with the health bureaucracy, cooperation that may eventually pay off when he needs inspection reports or other documents to make a case for his clients. He makes potentially helpful contacts with people who may later help his clients.
But it is mostly about preventing children from getting sick, he says.

"Health department personnel and environmental health professionals are unclear about how what they do fits with what I do," he says. "They worry about being sued for something they do, or for something they don’t do. And I try to dispel that fear."

At the Wyoming meeting, he carefully explained legal concepts such as "strict liability,” “negligence" and "punitive damages" -- all terms that apply to restaurants and other legal manufacturers of food products. Personal injury lawyers come to health departments for information to use against manufacturers, not health departments, he said.

The bottom line, he told his Wyoming audience (the day after also indulging his passion for fly-fishing), is this: "You have virtually zero chance of being sued for your inspections. So do your job and do it well. Your clientele includes the food service industry -- and its customers. And they need to understand food borne illness. So educate, educate, educate."

Health officials are usually more responsive to his message than the food industry, Marler says. "Some people don’t want to hear what I have to say. When I meet with them they don’t know if I’m Daniel in the Lions Den, or the Fox in the Henhouse."

But Marler continues to seek out opportunities to advise companies how to keep him from suing them.
"I want to be feared by my opponents, but I also want to be respected" Marler says. "I believe that doing what I do, and doing it well, has influenced the food industry. And I hope that means fewer kids are getting sick."

Since the series of costly and highly-publicized outbreaks in the 1990s, there has been a marked decline in the incidence of E. coli O157:H7, he says. The last major outbreak involving ground beef was in 2002.

"I don’t take all the credit for that, but I have to guess that taking $200 million from the food industry, and going out and talking to these trade groups, has raised awareness in these companies."

So is he putting himself out of business? To visit his 66th floor Seattle office, you might think so. On a typical day, Marler and his colleagues are likely to be found working in shorts and T-shirts, or eating take-out sandwiches at a conference table with a fire crackling on the built-in TV screen.

But unfortunately there has been no shortage of food borne illness cases. Marler still has his hands full with outbreaks of Salmonella, Listeria, hepatitis A and other foodborne pathogens. He travels nearly weekly back and forth across the country “spreading the word and litigating where necessary.”

"E. coli used to be the majority of our business, but these other bugs have filled the gap pretty well," he says.

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