Food Poisoning Lawyer & Attorney : Bill Marler : Marler Clark

The U.S. government has the authority to bar meat companies from testing their animals for mad cow disease, a federal appeals court has ruled.  The Department of Agriculture's failure to test more than a fraction of cows for the brain-wasting disease prompted one meat company to announce that it would test all of its bovines, the Associated Press reported.  But the government turned thumbs down on that request, from Kansas meat producer Creekstone Farms. Bigger meat packers feared the move would force them to employ the costly test on all of their cows, as well, the wire service said.  The U.S. Court of Appeals for the District of Columbia, in overturning a lower court ruling, upheld the government's right to prevent Creekstone from testing its cows, the AP said.

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According to press reports, an FDA requested panel says food safety in particular is in crisis. (Full Report) Questions about the FDA's effectiveness have been underscored by alarming headlines in recent years -- including E. coli in spinach, deadly chemicals in pet foods, toxic toothpaste and the heart-damaging side effects of drugs.  The report says Congress has given the FDA more responsibilities over the past two decades, but no funds to cover the extra work. Meanwhile, the agency hasn't been able to recruit the sophisticated scientific expertise needed to oversee complex medicines and food.  The report says the FDA needs at least an extra 350 million dollars to address drug safety, and 450 million more dollars to improve food safety.  Actually, the same holds true for the USDA.  Just in the last two months we have seen the USDA move slowly on the Topps recall, putting people at risk, and then we see them announce one day that the USDA is getting tough on Canadian E. coli imports, only to turn around quietly and stop testing a week later.

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In October Topps Meat Company, founded in 1940, went out of business. That was after Topps had recalled nearly 22 million pounds of frozen hamburger contaminated with E. coli and 40 people across the U.S. had become ill.

Tort deformers decried the “tragedy” that is this Topps’ collapse - that a business went under and employees had lost their jobs. Yes, a company bankrupt and unemployment are tragic. What makes it more so is that the catastrophic breakdown in the food-safety chain at Topps could have and should have been prevented by Topps management.

It’s been a century since Utpon Sinclair published the “Jungle," which exposed the contaminated underbelly of the American meat industry. Reform quickly followed. America got the Pure Food and Drug and Meat Inspection Acts. In the early 1990s, when these safeguards failed – e.g. Jack in the Box E. coli outbreak – again there was a public push for improving food safety.

The U.S.D.A. Food and Inspection Service responded with creating and aggressively enforcing the mandatory Risk Management System. Derived from research and operations in the American space program, this approach [HACCP] prevented new outbreaks by establishing check-points at every phase of meat processing. In addition, the agency classified the presence of E. coli O157:H7 as an adulterant under the Meat Inspection Act. Until recently, the meat contamination problem seemed fixed.

Had Topps complied with the letter and spirit of HACCP, it would not have processed contaminated meat in 2005 and again in 2007. So, why hadn’t Topps done what was the right thing to do for it and its now unemployed? We will be researching that question for years.

My theory is that Topps’ leadership might have chosen to take short-cuts on systemic food-safety procedures. Therefore, contamination which should have been detected early in meat processing wasn’t. The result wasn’t pretty: Food-poisoned consumers went through the agony that E. coli inflicts. They had incorrectly trusted that label “Inspected by the U.S.D.A.” as guaranteeing safety.

Over a century, two waves of reform in ensuring the safety of the American food supply chain have given business a total systems approach. That approach works if management follows the rules. Unfortunately, employees at Topps who lost their means of making a living were among those punished - severely.

Will other businesses be able to learn that century-old lesson: Inattention to proper food processing will be the kiss of death for their brandname, profitability and, yes, very existence.

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Robert Roos, CIDRAP News Editor caught the USDA ones again saying that it is interested in public safety, but when no one is looking changes the rules.  Mr. Roos' article entitled, “USDA modifies E. coli testing rules for Canadian beef,” is frankly shocking. According to the story, the “USDA has modified its program of increased testing and inspection of Canadian meat, after finding no problems in the first week or so, a USDA official said today.” Wow, after nearly killing 40 people in the US in the Topps E. coli outbreak (and, no one is counting the 44 sick and 1 dead Canadian), and after one whole week of testing, our government decreases testing AND allows meat to be shipped to consumers BEFORE test results even come back.

Mr. Roos also reported that, despite hundreds of people sickened in the US in 2007 and over 30 million pounds of meat recalled, the “USDA is not considering requiring American meat companies to hold meat until pathogen testing is completed, contrary to a recent news report…. the USDA has long had guidelines recommending that companies hold meat until test results come back, "but it's not something we require."

Does anyone wonder why people think government is useless?

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I’m a bit confused. Yesterday it was reported that Ranchers Beef Ltd (now out of business) was both the source of an E. coli outbreak in the United States that had sickened at least 40 tied to the consumption of Topps Meat (also out of business) AND 44 ill persons and 1 death in Canada.  See, "Topps story continues to grow more ominous."  Now the Ottawa Government releases this press statement:

The Canadian Food Inspection Agency (CFIA) is warning the public not to consume the various beef products described below because these products may be contaminated with E. coli O157:H7 bacteria. The affected products are being recalled as a result of the CFIA’s investigation and traceback conducted on contaminated beef involving Ranchers Beef Ltd. (Establishment 630), Balzac, Alberta.  There have been no reported illnesses associated with the consumption of these products.

This does seem to contradict the press release from the same government entity just the day before:

The Canadian Food Inspection Agency (CFIA) and the Public Health Agency of Canada (PHAC) are currently investigating possible linkages between E. coli cases that occurred earlier this summer in Canada. The investigation is examining 45 cases of E. coli O157:H7 that were found in New Brunswick, Quebec, Saskatchewan, Ontario and British Columbia. These cases were previously reported from July to September, 2007. As a result of these cases, eleven people were hospitalized and one elderly individual died.

However, according to the USA FSIS, there seems to be a “genetic link” to both the 40 people ill from the Topps outbreak and the 44 people ill and 1 death in Canada:

On October 25, the CFIA provided FSIS with PFGE patterns, or DNA fingerprints, from tests of beef trim from a Canadian firm, Ranchers Beef, Ltd., Canadian establishment number 630. This firm provided trim to the Topps Meat Company. While the firm, which had been located in Balzac, Alberta, ceased operations on August 15, 2007, some product remained in storage and was collected and tested by CFIA as part of the joint investigation of the Topps recall and as part of CFIA's own investigation into 45 illnesses in Canada from E. coli O157:H7.

It is hard to imagine that our USDA/FSIS might be more competent that its Canadian counterpart. 

Remember, according the New Jersey AP, Topps products revealed three different E. coli O157:H7 genetic "fingerprints," according to Kenneth Petersen, an assistant administrator at the USDA's Food Safety and Inspection Service. This means that although one of these fingerprints has been traced to Ranchers Beef, Ltd., in Canada, it will be interesting to see if we can track the other fingerprints to the source - Tyson, IBP, Cargill, others?  It will also be interesting to get legal jurisdiction over out of country corporations.

Also, recall the report from the New York Times, revealed that Topps sourced a significant amount of beef trimmings from countries like Australia, New Zealand, Canada and Uruguay – countries that FSIS has required little E. coli O157:H7 testing.  Will FSIS change this rule too soon?

So, FSIS has limited requirements that out of country producers test for E. coli.  And, we have learned during the Topps recall that Topps had cut back on its testing for E. coli.  It will be interesting to see if other meat companies have been doing the same.  Perhaps more testing at the retail (grocer store) would be helpful in tracking this ugly bug?  According to the FSIS website, “the agency still collects some samples from retail stores, but normally only when the retail store actually produces raw ground beef using trimmings from a cutting/boning operation conducted at the store.”  Perhaps it or someone should do more retail testing?

I also think we need to look at several other reasons for the spike in E. coli illnesses and recalls (in addition to testing product), such as: 1)  has the make-up of workers in slaughter plants changed in 2007?  Do we have less experienced workers?  2)  has cattle feed in 2007 changed significantly to allow greater growth of E. coli O157:H7?  3)  has global warming impacted the ecology of E. coli O157:H7?  Other ideas?

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According to FREDERIC J. FROMMER of the Associated Press, Federal officials refused to tell Minnesota authorities which of two beef plants were linked to a fatal E. coli outbreak last summer, according to a state report.  One woman died and at least 17 people were sickened from the E. coli outbreak in the Longville area, after eating ground beef.

The state report, dated in July, was sent to The Associated Press this week by the Seattle law firm of Marler Clark, which represents victims of food poisoning. Managing partner Bill Marler said his firm is not representing any victims from the Longville area, but may sue the USDA for not providing the information to state authorities. The state health department gave the report to AP on Thursday.

"I suppose it's par for the course for USDA, but I'm shocked that the USDA refused to disclose the name of the plant that had the positive sample, which clearly is the source of the E. coli that poisoned people," Marler said. "The USDA is more concerned with protecting industry than protecting the public health."

 

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We as Americans have grown up believing that our food supply is the safest in the world. But the CDC estimates that over 300,000 people are hospitalized and over 5,000 die, just from eating food contaminated with a pathogen. In recent years, E. coli outbreaks have been linked to not just ground beef, but also to sprouts, lettuce, and steaks. Salmonella outbreaks have been traced to foods such as tomatoes, orange juice and cantaloupe. The largest Hepatitis-A outbreak in United States history has been linked to green onions. School children in a Chicago suburb were served chicken fingers contaminated with ammonia. And now, "Mad Cow" disease has been discovered at a slaughterhouse in Washington State.

While the incubation period for most foodborne pathogens is a matter of days and symptoms of hepatitis-A infection frequently do not show up for over a month, symptoms of Mad Cow, or Creutzfeldt-Jakob Disease, do not appear for up to forty years.

Because we should not have to worry about what we eat today, and the impact that it could have on us decades from now, we need stronger and more aggressive regulation by the USDA and the FDA. These two arms of the government must do everything they can to protect the consuming public.

Specifically:

Require the meat industry to document where specific lots of food are sold. That way, it can be recalled quickly if a pathogen is detected. In most outbreaks, there is no recall because retailers do not know where the meat came from and processors rarely step forward. Timely online records would allow meat to be efficiently tracked down and recalled as soon as inspectors get a positive test result.

Merge the two federal agencies (USDA and FDA) responsible for food safety. Right now, USDA's Food Safety Inspection Service and the inspection arm of the Food and Drug Administration share this mission. The system is bifurcated, which leads to turf wars and split responsibilities. We need one independent agency that deals with food-borne pathogens.

Finally, large purchasers of meat - fast food industry, grocery store chains, and yes, the USDA - must require the meat industry to produce high quality, pathogen lessened, meat. Can you imagine the power they can put on slaughterhouses to clean up this mess?

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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.

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A piece of legislation called the California Safe Schools Lunch Act (AB 1988) was recently passed by the State Assembly and now awaits action by the State Senate. Unfortunately, its positive-sounding title might not satisfy the State's own truth-in-labeling laws. The Bill's passage and the passage of similar laws around the country could put school children at greater risk, not less, from the dangers of foodborne illness.

As originally drafted, the Bill restricted the State's Department of Education from ordering irradiated ground beef from the USDA's National School Lunch Program, an option that school districts have available for the first time in 2004. In its present form, it makes this additional food safety measure more difficult and expensive, at a time local school districts are financially strained. In some cities, like San Francisco, Berkeley and Washington, DC, local school boards have succumbed to pressure from irradiation opponents and voted outright bans on serving irradiated foods in cafeterias.

The problem is this: an estimated 73,000 people, many children, get E. coli infection every year and 61 die from it. The GAO found that between 1990 and 1999, 195 outbreaks of foodborne illnesses occurred in our schools, sickening thousands of children. I currently represent children who were made ill with E. coli O157:H7 infections after eating contaminated lettuce served at Eastern Washington University, a school in Coeur d'Alene, Idaho, and schools in San Diego and Orange Counties. In the past, I represented children made ill after eating contaminated ground beef in Washington state and Georgia. The list goes on, and E. coli is not the only pathogen making our children sick.

Last fall, 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.

When ground beef is irradiated, at least 99.99 percent of E. coli and other harmful foodborne bacteria are killed. Yet irradiation is not a panacea; it is only one additional food safety measure. Others I strongly urge are higher quality and safety standards from plants and suppliers; improved traceback of contaminated meat; better training of food service personnel; serving precooked as well as irradiated foods in school cafeterias; educating students, faculty and parents on safe food handling practices; and requiring the USDA and FDA to publish online all inspection reports, recall notices, and violations of food safety standards for every plant that supplies food to our schools. This will give parents and school administrators a powerful tool in learning the quality of food being served to the children. This comprehensive and cost effective approach to food safety protects our kids and protects a school's budget by preventing lawsuits.

Shown to be safe after more than 40 years of research, food irradiation is endorsed by nearly every major science and health agency, including the World Health Organization, the Centers for Disease Control and Prevention (CDC), the American Medical Association, and the American Dietetic Association. The CDC estimates that if just 50 percent of the meat and poultry were irradiated, the number of foodborne illnesses would be reduced by 900,000 annually and deaths by 352.

Legislators and school board members interested in getting both sides of the food irradiation debate should talk to Rainer Mueller of Oceanside, California. His 13-year-old son, Eric, died from complications of E. coli after eating a contaminated hamburger in 1993. Mr. Mueller has since served as president of the grassroots organization STOP (Safe Tables Our Priority) that is made up primarily of victims and families of foodborne illness. He has also established a website, www.ericsecho.org, in his son's memory and for the purpose of educating others about the risks and possible tragic outcomes of foodborne illness. Mr. Mueller sums it up succinctly, "Irradiation is not a silver bullet, but rather one of the tools which should be used to reduce the risk of illness, and in my son's case, death."

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