Bill Marler, food safety advocate and foodborne attorney since 1993, whose Seattle law firm, Marler Clark, has been contacted by dozens of victims of the recent Fresh Express Cyclospora outbreak, and you has filed lawsuits, called on Fresh Express  to pay the medical bills and lost wages of all individuals who became ill.

“We know that over 500 people became ill with Cyclospora infections in the United States and Canada. Unfortunately, those numbers will likely rise in the coming week,”  Marler said.  “The cost of treating victims of this infections can run in the tens of thousands of dollars,” Marler continued. “These families, especially during the COVID-19 crisis, need more than promise to cooperate in the investigation into this outbreak. They need to know that Fresh Express intends to fulfill its corporate responsibility by looking out for its customers,” Marler added.

Marler noted that over the last two decades in other outbreak-situations, companies such as Chi-Chi’s, Dole, Jack in the Box, Con Agra, Odwalla and Sheetz advanced medical costs for outbreak victims whose illnesses were traced to their food products.

The CDC reported today that as of July 8, 2020, a total of 509 people with laboratory confirmed Cyclospora infections associated with this outbreak have been reported from 8 states: Illinois (151), Iowa (160), Kansas (5), Minnesota (63), Missouri (46) Nebraska (48), North Dakota (6), and Wisconsin (30). Illnesses started on dates ranging from May 11, 2020 to July 1, 2020. Ill people range in age from 11 to 92 years with a median age of 60 and 53% are female. Of 506 people with available information, 33 people (7%) have been hospitalized. No deaths have been reported.

Additionally, the Public Health Agency of Canada is investigating an outbreak of Cyclospora infections occurring in three Canadian provinces where exposure to certain Fresh Express brand salad products containing iceberg lettuce, carrots and red cabbage, has been identified as a likely source of the outbreak.  Thirty-seven have reported illnesses in three provinces – Ontario (26), Quebec (10) and Newfoundland and Labrador (1). Individuals became sick between mid-May and mid-June 2020. One individual has been hospitalized. No deaths have been reported. Individuals who became ill are between 21 and 70 years of age. The majority of cases (76%) are female.

Epidemiologic and traceback evidence continues to indicate that bagged salad mix containing iceberg lettuce, carrots, and red cabbage produced by Fresh Express is a likely source of this outbreak.

In interviews, ill people answered questions about the foods they ate and other exposures in the two weeks before they became ill. Ill people reported eating a variety of brands of bagged salad mix containing iceberg lettuce, carrots, and red cabbage. Salad mixes eaten by ill people were purchased from ALDI, Hy-Vee, Jewel-Osco, and Walmart stores in the Midwest.

Traceback investigations by FDA suggest that the Streamwood, Illinois Fresh Express production facility is the likely producer of the bagged salad mixes eaten by ill people. FDA has begun an inspection at this facility. CDC and FDA continue to investigate to determine which ingredient or ingredients in the salad mix was contaminated and whether other products are a source of illnesses.

As of July 8, 2020, there are 37 confirmed cases of Cyclospora illness linked to this outbreak in three provinces: Ontario (26), Quebec (10) and Newfoundland and Labrador (1). Individuals became sick between mid-May and mid-June 2020. One individual has been hospitalized. No deaths have been reported. Individuals who became ill are between 21 and 70 years of age. The majority of cases (76%) are female.

The Public Health Agency of Canada (PHAC) is collaborating with provincial public health partners, the Canadian Food Inspection Agency (CFIA) and Health Canada to investigate an outbreak of Cyclospora infections occurring in three provinces. The outbreak appears to be ongoing, as recent illnesses continue to be reported to PHAC.

Based on the investigation findings to date, exposure to certain Fresh Express brand salad products containing iceberg lettuce, carrots and red cabbage, has been identified as a likely source of the outbreak. Some of the individuals who became sick reported having eaten Fresh Express brand salad products containing these ingredients before their illnesses occurred. The source of illness for the remaining individuals continues to be under investigation. The investigation is ongoing and this public health notice will be updated as the investigation evolves.

On June 28, 2020, the CFIA issued a food recall warning for certain Fresh Express brand salad products containing iceberg lettuce, carrots and red cabbage that were distributed nationally in Canada. The recalled salad products begin with lot code “Z177” or a lower number and have best before dates up to and including 20JUL08 – 20JUL14. For more information on the recalled product, please consult the CFIA’s website.

Canadians are advised not to eat the recalled products. Retailers and food service establishments are advised not to sell or serve the recalled products, or any items that may have been prepared or produced using these products.

The CFIA is continuing its food safety investigation, which may lead to the recall of other products. If additional products are recalled, the CFIA will notify the public through updated food recall warnings.

The U.S. Centers for Disease Control and Prevention and the U.S. Food and Drug Administration are also investigating a multi-state outbreak of Cyclospora infections that has been linked to bagged salad mixes containing iceberg lettuce, carrots, and red cabbage produced by Fresh Express.

206 people with laboratory-confirmed Cyclospora infections and who reported eating bagged salad mix before getting sick have been reported from 8 Midwestern states (Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, and Wisconsin).

Illnesses started on dates ranging from May 11, 2020 to June 17, 2020.

23 people have been hospitalized.

Products were sold in many states under either the brand name Fresh Express or the store brand labels ALDI Little Salad Bar, Giant Eagle, Hy-Vee, Jewel-Osco Signature Farms, ShopRite Wholesome Pantry, and Walmart Marketside.

The recalled products can be identified by looking for the Product Code, located in the upper right-hand corner of the front of the package.

The recall includes products marked with the letter “Z” at the beginning of the Product Code, followed by the number “178” or lower.

A full listing of recalled products is available on the Fresh Express recall page.

When Bill Marler was 16 years old, he ran away from home and became a migrant worker for a while, living in squalid cabins, sleeping outdoors, and hitchhiking rides to farms to pick crops.

The low point of Marler’s life came when he lost a gig and completely ran out of money.

For a week, he lived on just a five-pound sack of pancake flour.

“And it has changed my perspective on pancakes I have to admit,” admits Marler, ruefully. “Anytime pancakes come up as something for breakfast, my children have had to hear my pancake story. I think they now avoid making pancakes because they don’t want to hear my story again.”

Marler’s brief stint as a farmhand also gave him a lifelong empathy for migrant workers and a deep connectivity to food and food safety issues. More than anything, it also made him realize the importance of a  college education and he went on to become a lawyer.

By sheer happenstance, one day, Marler got a referral for an E. coli case tied to the Jack In The Box hamburger chain.  What started as one case turned into a multi-million dollar class action settlement, putting Marler and his law firm, Marler Clark, LLP., forever on the map on food safety lawsuits and advocacy.

Marler has frequently testified before Congress, resulting in stronger food safety laws and regulations and is a globally sought-after public speaker on these issues.

As growing numbers of migrant workers and meatpackers fall victim to #Covid-19, Marler says there are profound ramifications to not protecting these frontline workers from the coronavirus. Ramifications that not only devastate these communities but the entire economy and American consumers as a whole.

“We’ve already seen the impact of companies not paying attention to the needs of their workers, because we’re seeing beef prices go up, we’re seeing meat be less available, certain kinds of meats being less available. So you pay for it now by protecting the workers, who also with COVID, go out into your communities and spread the disease throughout the community,” says Marler. “And so it’s not just to protect the worker, which I think is the moral thing to do, but it’s also to frankly protect yourself. And sometimes profits are the focus and we become so shortsighted about the long-term costs to the people, long term costs to the community.”

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Chitra Ragavan:

When William Marler was 16 years old, he ran away from home and became a migrant worker in Washington State. Living in squalid cabins, sleeping outdoors, and hitchhiking rides to farms to pick crops was difficult and dangerous. The low point of Marler’s life came when he lost a gig and ran out of money. His stint as a migrant worker gave Marler lifelong connectivity to migrant workers, to food, and most importantly, to food safety issues.

Chitra Ragavan:

Hello everyone, I’m Chitra Ragavan. And this is When It Mattered. This episode is brought to you by Goodstory, an advisory firm, helping technology startups find their narrative. I’m joined now by William Marler, managing partner at Marler Clark Attorneys At Law. A national expert in food safety, Marler has become the most prominent foodborne illness lawyer in America, and a major force in food policy in the US and around the world. Marler is a frequent speaker on food safety issues at global events. He has testified before U.S. Congressional committees and his work has led to laws and regulations being passed to make food safer. Bill, welcome to the podcast.

William Marler:

Thank you, Chitra.

Chitra Ragavan:

Why did you run away from home?

William Marler:

Well, it was more like I was out to seek adventures and something different than spending another summer working on the family hobby farm. And I told my parents, I was going to go to Eastern Washington and work in the fields. They were not very excited or supportive of that. And one day when they were away from home, I packed a duffle bag and walked down to the road and finally got a ride. And about 18 hours later, I was in a little town on the Columbia river, almost dead square in the middle of the state.

Chitra Ragavan:

Was it scary? What did you do next? How did you find work? What crops did you pick?

William Marler:

Yeah, so I had some vague idea about where to look for work. I eventually found a job thinning suckers out of apple trees and thinning apples. That was my first job. And it was very hard work and a lot of tree climbing and ladder climbing. And over the course of the next three, three and a half months, I worked throughout Eastern Oregon, Eastern Washington and into Canada, following the crops.

William Marler:

There was peaches, apples, cherries, and various odd other farm jobs, including, a period of time, spraying, God knows what chemicals on plants without a shirt on, without a respirator without anything. So it was a very interesting, very interesting experience and one that I think about more frequently than I probably should.

Chitra Ragavan:

What was the most difficult point of that experience would you say?

William Marler:

Well, the work was really hard generally and this was in the early 70s and at that point in time, the migrant farm workers were essentially for the most part, poor whites. It had not really changed to a Hispanic culture of workers. And I always knew that I could hit the highway and go home. My parents would have welcomed me home, but I was a pretty proud kid. And I think probably the low point was I… There was a period of time where I lost some work. There was not anything to do. I still had a place to somewhat live, but I didn’t have any money. And my food was, I had a five-pound sack of pancake flour, and that’s what I lived on for about a week until I got a new job. And it has changed my perspective on pancakes I have to admit.

Chitra Ragavan:

Do you even eat them today?

William Marler:

Anytime pancakes come up as something for breakfast, my children have had to hear my pancake story. I think they now avoid making pancakes because they don’t want to hear my story again.

Chitra Ragavan:

None of the Father’s day breakfast in bed pancakes for you.

William Marler:

No, afraid not, afraid not. But still in all, it was a really interesting experience for a 16-year old. There were most moments in time where it was really super hard work, but it’s given me a perspective on farm labor that has stayed with me, and labor generally, has stayed with me for my entire life.

Chitra Ragavan:

And what was the central takeaway do you think?

William Marler:

Well, it’s interesting, I’ve thought a lot more about it here during this recent COVID episode that we’re all living through and just how important, so many people that we don’t really think about as essential workers. We tend to think of police officers, firemen as essential, but I think COVID has given us a sense of how the frontline people are nurses and doctors, ambulance drivers, and then people who work in grocery stores and people who work in factories, farms and out there too are, there are really the frontline workers picking our fruits and vegetables and working in our slaughter plants.

William Marler:

So, I think it’s given me a perspective from a white middle class kid’s perspective that has grown into white, upper class, 63-year-old guy’s perspective. But nonetheless, I think it’s helped shape my view of hard work and the value of labor.

Chitra Ragavan:

And I guess it also taught you the importance of education and college.

William Marler:

Certainly did. I feel very blessed to have been able to go to college and make it through and then into graduate school law school. But yeah, it’s certainly, very tough work working on a farm and working on farms and living by your body and I definitely wanted to come back and make a living by using what gray matter I had between my ears.

Chitra Ragavan:

And then in college, you also learned the power of political activism. How did that come about?

William Marler:

I was somewhat politically active in the 70s. I think even though I never had to register for the draft because the Vietnam War was over by the time I turned 18. I lived in a Naval town, Bremerton, which is, there were not a lot of kids that were going to college there to avoid the draft.

William Marler:

A lot of kids were going into college. Not to get into the war and being drafted. And so I viewed that that’s what was going to happen. And it certainly focused one’s attention on politics. But when I did go to college, I wound up being one of a handful of students that decided to run for the Pullman Washington, which is where Washington State University is. The Pullman Washington City Council. And what happened was that the four of us filed for four separate open seats, the seats were already filled with the incumbent and then another town’s person had filed in three of those four.

William Marler:

So the students had to face a primary election where they got bounced out because the town’s people voted for one or the other of the town’s person. The person I ran against didn’t have a primary opponent and so I got a pass through the primary. The students came back a week after the primary, which one would argue that that’s probably why they had the primary when they had it, but we were able to register students to vote. And I won by 53 votes out of 5,000 cast and became the youngest person and first student ever elected to the city council, and for a short period of time at age 19, I was one of the youngest, if not the youngest people ever elected to a city wide or any sort of office, because we had just gotten the right to vote.

William Marler:

So, I also learned very early on the power of the vote and I’ve always been a big proponent of using the power of the ballot box. In addition to what we’re seeing presently with people in the streets protesting righteously, it’s, hope that translates to voting action.

Chitra Ragavan:

So you became a lawyer and I guess you specialized in personal injury, right? Slips and falls and stuff like that.

William Marler:

Yeah. I mean, when I first started out, I worked in a large firm doing all sorts of trial work, whatever it was getting me into the courtroom, and some of that was defense work. And some of it was defending some pretty nasty defendants, corporations and manufacturers of products that harm people.

William Marler:

But I also had developed a practice on the side that was not in conflict to those, that work, where I’d represent victims in auto cases and slips and falls. And so as long as I kept up with all my other hourly work, I was able to do some other work on the side for the firm, and if it made money for the firm, they were happy.

Chitra Ragavan:

How did you wind up in food safety and getting that famous Jack in the Box case? And what was that case about and how did it end up being so important for you?

William Marler:

In the winter in Seattle, 1993 in January, in the newspapers, there was a morning newspaper and an afternoon newspaper. I remember taking the ferry across from the Island that I was living on and still do.

William Marler:

I got on the boat in the morning and was reading the paper. And there was just a discussion about an outbreak of E.coli. That seemed to be linked to eating food at a Jack in the Box restaurant and by the evening paper, and then the evening news is all about really some kids really hospitalized on dialysis and nobody knew what was really going on. And I got a phone call from a former client of mine, who had slipped and fallen in a place of employment. And so she wanted to sue, but because it was in place of employment, then she had to deal with workers’ compensation as opposed to a lawsuit.

William Marler:

So I helped her through that and never charged her for any of my time but helped her through getting her some compensation for her injuries. And a year later she calls me and says, “Hey, a friend of mine’s kid is sick with this E.coli.”

William Marler:

So I went down and met the family and was one of the first lawsuits that got filed. And from that case, it was one case to, within days it was 10 cases, ultimately hundreds of cases, including children who became deathly ill. So, I went from just being a standard lawyer to all of a sudden being the legal face of the Jack in the Box case on behalf of victims. So that was really the beginning of what now has been 27 plus years of representing victims in food poisoning cases all over the world.

Chitra Ragavan:

And what’s that experience been like?

William Marler:

A lot of lawyers don’t like their jobs. A lot of lawyers represent people they don’t like to represent, but everyone has a right to be represented. And whether it’s a corporation or insurance company, a criminal or defendant. I get the best job. I get to represent victims of food poisoning, who through no fault of their own and most of the time it’s children or people who are immune compromised. So I get to help figure out why the outbreak happened, and take care of people who sometimes need lifelong medical treatment and medical care.

William Marler:

So, I’m always every day in incredibly proud and blessed with thekind of job that I had been able to develop. Food borne illness litigation didn’t really exist prior to Jack in the Box and what I have been able to accomplish in the last 27 years and starting Marler Clark in 1998. So 22 years at being the lawyer and having my own firm to do what I want to do has been a really exciting thing that I get up every day being thankful for the job that I have.

Chitra Ragavan:

So Bill, people may be surprised to hear that food can be this unsafe, aren’t there laws against it to protect them? You’ve had some major cases, huge settlements. Why’s food this unsafe?

William Marler:

Well, I mean, the statistics are pretty, almost, even hard to wrap your head around. There’re 67 million Americans getting a foodborne illness every year, 3000 hospitalized, excuse me, 3000 dead, over a million hospitalized, it’s a really serious problem.

William Marler:

Yes, we do have laws, but bacteria don’t pay attention to laws. And there are times where unfortunately, the people who manufacture our food, don’t pay attention to the realities of bacterial and viral contamination. Yeah, we’ve had laws about selling adulterated and unsanitary food since the turn of 1900s after Upton Sinclair’s, The Jungle and the work of the progressive Theodore Roosevelt.

William Marler:

And we’ve had changes over time. The Obama administration with the help of the Senate and Congress passed the Food Safety Modernization Act, but we still have a lot of work to do. I’ve been involved in a lot of the legislation over the last couple of decades but we still have more to do. But we have the technology to do it and we’ve made some progress.

William Marler:

I always tell people like I was telling somebody on a International Association of Food Protection conference call that I was on the other day. And people felt like, “Oh my gosh, we really haven’t made any progress.” And I always tell the story that from 1993, Jack in the Box until early 2000s, 99% of my law firm revenue was E.coli cases linked to hamburger.

William Marler:

And because of a combination of litigation and legislation, hard work by the CDC and frankly hard work by the meat suppliers in many instances, I haven’t had many E.coli cases linked to hamburger at all. So other than maybe my accountant not thinking that’s a great idea. From the point of view of, from victims and I think point of view of society, that’s a success story.

William Marler:

And I tell people that, yes, we still have problems, but these are things that with focus are, maybe not completely fixable because these bacteria and virus are very adaptive, but I think that many things can be continued to be worked on and progress can be made.

Chitra Ragavan:

You were a very successful lawyer for many, many years, and you could have stayed that way, but you made the transition also to being this global advocate and thought leader. How did that come about?

William Marler:

Yeah, I think probably because of frustration that the law… The law is a very blunt instrument of social change. It’s a very useful tool and to understand the rule of law and to understand how the system operates is an important thing. But it’s a case-by-case basis, and so it really, I think also, my experience in politics and working with coalitions to try to effectuate change, it really had to do with the fact that the law is a really blunt instrument for change.

William Marler:

Lawsuits are difficult on all the parties and sometimes it’s a case-by-case-by-case basis. And it doesn’t effectuate change as quickly as you’d like. And so and with respect to the E.coli thing, you can sue companies all day long and collect millions of dollars from them, but that may sometimes be just the cost of doing business to them.

William Marler:

But if there’s legislation, if there’s public outcry, if there’s sometimes embarrassment from being outed by how the outbreak happened, I started doing a lot more things like that, that made more of an impact.

William Marler:

And I also think putting yourself out there, going to conferences, whether it’s the American Meat Institute or conferences of food safety, the fact that you would go there and go into the lion’s den sometimes where there’d be people who were quite angry or very upset that lawyers being invited. And I’ve had people walk out of a conference that I was speaking at. And not just because of what I was saying, but as a sign of protest that I was even there.

William Marler:

So I think part of what I’m trying to accomplish is, I have been able to be very successful by representing victims of foodborne illness and it’s part of my feeling that I have a responsibility to help avoid these problems to begin with. Because sometimes, you can get somebody tens of millions of dollars, but because you got somebody tens and millions of dollars, it really means that their life has been so dramatically altered that even though they have the money now to take care of it, they would much prefer to have their kidneys. They much prefer to have a functioning brain. They much prefer not being a paraplegic. So, money is a very inadequate way. It’s the only way, but it’s an inadequate way of helping people through a catastrophic event.

Chitra Ragavan:

All your efforts, as you have mentioned have made a huge dent in eradicating E.coli in a lot of foods and now you’re taking a stab at getting rid of salmonella. What is the state of salmonella in foods and meats in particular. And what’s it going to be like to take that fight on?

William Marler:

Yeah, well, back in 1994, when Mike Taylor, who at the time was the head of FSIS which is the arm of USDA that regulates meat. They deemed E.coli 0157, which is the nasty bug that caused the Jack in the Box outbreak. They deemed that an adulterant. And what that meant was that the meat companies had to test for it and could not sell it, knowing that the product was contaminated. Where in 1993, ’92 and earlier, they could knowingly sell customers E.coli contaminated meat.

William Marler:

That sounds a little hard to think about, and in meat, the meat industry is allowed to do that, but if you have a product over on the FDA side like lettuce, they’ve never been able to sell E.coli contaminated lettuce, it’s against the law.

William Marler:

Salmonella, which is a bug that sickens and kills actually more people in the United States than E.coli does, salmonella is still allowed to be on and in hamburger, chicken, pork, turkey, and the company can knowingly ship contaminated product and expect the consumer to handle it and deal with it.

William Marler:

Obviously, that doesn’t happen because we have lots and lots and lots of people that get salmonella illnesses every year and get severely sick and even die. So I petitioned the US government to do for salmonella, what it successfully has done with E.coli and deem it an adulterate, so the industry could not knowingly sell contaminated product to consumers.

William Marler:

And the whole idea behind it is to try to be as successful with salmonella as we have been with E.coli. And obviously that would entail having a lot less work for myself and my firm to do, which again is a good thing.

Chitra Ragavan:

We talked earlier a little bit about COVID-19 and the pandemic as you mentioned, has brought the plight of migrant workers and meat packers to frontline workers, to vivid light, they’re at the greatest risk and you were in the trenches as that 16-year-old, and you’ve dealt a great deal with food safety and food issues. What are the challenges in getting the COVID message out to those workers?

William Marler:

Yeah. This is going to be a challenge. And the challenge is because many of these workers are stuck between a rock and a hard place. They don’t have other marketable skills. And so being a farm worker, being in a meatpacking plant is what they know how to do, and that’s what they can do.

William Marler:

The alternative is you come to work or if you don’t work, you don’t get unemployment, what are you going to do? You’re going to come to work. If you have a family and you have to feed yourself and you feed your family. I think people who are in that position, that they absolutely require employers and the government to make sure that those workers are safe.

William Marler:

And that may mean a lot more PPE. That may mean a lot more physical spacing, slowing line speed down, it may well mean that the cost of food increases because the labor costs are going to go up. Safety costs are going to go up, but we’ve already seen the impact of companies not paying attention to the needs of their workers, because we’re seeing beef prices go up, we’re seeing meat be less available, certain kinds of meats being less available. So you pay for it now by protecting the workers, who also with COVID, go out into your communities and spread the disease throughout the community.

William Marler:

And so it’s not just to protect the worker, which I think is the moral thing to do, but it’s also to frankly protect yourself. And sometimes profits are the focus and we become so shortsighted about the long term costs to the people, long term costs to the community.

Chitra Ragavan:

Do you think that food safety issues might take a back seat because of the pandemic, given that the full force and weight of the federal government is focused entirely on COVID-19? And if it does take a back seat, how will consumers be able to protect themselves?

William Marler:

Chitra, that’s a very good question and it’s going to be a very difficult one. We do know for a fact that FDA inspections are down, FDA recalls are down. We do know that FSIS inspectors are getting sick in meat plants with COVID. So we do know that it is having an impact. Exactly what impact it’s having, intellectually and thoughtfully, it has to be having a negative impact on food safety.

William Marler:

Part of the problem is because health departments who normally would also be surveilling foodborne illnesses are in the midst of helping society deal with COVID. And so part of the problem is, is it intellectually that this food safety is definitely taking a back seat.

William Marler:

Part of the problem is that we’re not getting that kind of surveillance to know for a fact. And then you factor in the fact that we’re not… Many people aren’t eating in restaurants and they’re eating at home. And so are the numbers down in part because of that or part because we’re not surveilling what’s going on. And it is a challenge that because of the risk of COVID, it doesn’t have a great solution right now.

Chitra Ragavan:

By the way, I’m curious after seeing all of these cases and all of these illnesses, do you still eat meat?

William Marler:

Well cooked. Not a lot, but I do when I do, it’s well cooked.

Chitra Ragavan:

Looking back at that 16-year old farm hand, and where you are today, what would you say to that young man about the journey that you’ve been on?

William Marler:

I have been having that conversation with my 21-year-old daughter who is putting herself in the middle of some of the peaceful protests here in Seattle. And I found myself talking about safety and talking about perhaps focusing on a different thing than putting yourself in harms way with thousands of people marching and police. I think most fathers would think that way.

William Marler:

So, I certainly have a perspective now of a 63-year-old guy that I probably didn’t have when I was 16. I suppose if I was… I’m not sure I would really give that 16-year-old any advice. I’d probably listened to what that 16-year-old had to say to me, because even though I think there’s a lot of that 16-year-old in me, and maybe even that 19-year-old city council member is still in me, 50 years has… And focusing on other things has taken me frankly away from some of the real issues that I think we’re all facing, whether it’s institutional racism, public health in a broader way than I focused on it.

William Marler:

I feel good about the work that I do, but clearly my 21-year-old is indicating to me that she appreciates what I do, but I’m perhaps not paying attention to the things that need to be paid attention to today that I haven’t obviously been focused on the last 50 years.

Chitra Ragavan:

And would you say that’s your viral inside about your life and work in the wake of COVID-19 or have you had other moments of clarity brought upon by this crisis?

William Marler:

I think my 21-year-old is teaching me that you can do important things and focus on the fact that you have and are doing important things, but that there may well be other things that you might need to find time to deal with. And I think that’s pretty wise and I think that’s probably the same advice I probably would be giving myself if I was a 19-year-old city council member giving a 63-year-old Bill Marler the advice.

William Marler:

What I’m learning through this COVID thing is we have a lot of work to do as a society. I think this COVID crisis, and some of the recent public killing of an African-American man has brought to the front some inadequacies in our society. That doesn’t mean that food safety isn’t important, but it means that we need to broaden our perspective and that’s something I’m trying to figure out my place in that right now. And I very much appreciate my daughter pointing out my inadequacies.

Chitra Ragavan:

Do you think you might change the focus of your law firm?

William Marler:

I think not. I have the luxury that I may help focus my attention on some other things. The fact that I’m not spending two hours a day commuting, and sometime I spend most of my time nowadays, pre-COVID in a situation where I’m usually in an airport or some courtroom somewhere in the world, that’s now not happening. So, my perspective on things may change given the fact that I have time to focus on them.

Chitra Ragavan:

Bill, thank you so much for joining me today and for this great conversation.

William Marler:

Thank you very much. It was a pleasure.

Chitra Ragavan:

Bill Marler is managing partner at Marler Clark Attorneys At Law. A national expert in food safety, Marler has become on the most prominent foodborne illness lawyer in America, and a major force in food policy, in the US and around the world.

Chitra Ragavan:

Marler and his firm have represented thousands of individuals in claims against food companies whose contaminated products have caused life-altering injury and even death. This is When It Mattered. I’m Chitra Ragavan

Chitra Ragavan:

Thanks for listening to when it mattered, don’t forget to subscribe to the show on Apple podcasts or your preferred podcast platform. And if you like the show, please rate it five stars, leave a review and do recommend it to your friends, family, and colleagues.

Chitra Ragavan:

When It Mattered is a weekly leadership podcast produced by Goodstory, an advisory firm, helping technology startups with strategy, brand positioning and narrative. For questions, comments, and transcripts, please visit our website at goodstory.io or send us an email at podcast at goodstory.io.

Chitra Ragavan:

Our producer is Jeremy Corr, Founder and CEO of Executive Podcasting Solutions. Our theme song is composed by Jack Yagerline. Join us next week for another edition of When It Mattered. I’ll see you then.

As of September 5, 2018, 250 people were infected with Cyclospora reported from 4 states.

Illnesses started on dates ranging from May 14, 2018 to June 20, 2018. Ill people ranged in age from 13–79 years with a median age of 45. Among ill people, 52% were female. Eight people (3%) were hospitalized. No deaths were reported.

Epidemiologic evidence indicated that pre-packaged Del Monte Fresh Produce vegetable trays containing broccoli, cauliflower, carrots, and dill dip were the likely source of these infections.

In interviews, ill people answered questions about the foods they ate in the 2 weeks before they became ill. Ill people reported eating pre-packaged Del Monte Fresh Produce vegetable trays containing broccoli, cauliflower, carrots, and dill dip. Ill people reported buying pre-packaged Del Monte Fresh Produce vegetable trays containing broccoli, cauliflower, carrots, and dill dip in the Midwest. Most people reported buying the trays at Kwik Trip convenience stores

On June 15, 2018, Del Monte Fresh Produce recalled 6 oz., 12 oz., and 28 oz. pre-packaged vegetable trays containing fresh broccoli, cauliflower, celery sticks, carrots, and dill dip. Recalled products were sold in clear, plastic clamshell containers.

CDC, public health and regulatory officials in several states, and the U.S. Food and Drug Administration (FDA) are investigating a multistate outbreak of Cyclospora infections linked to bagged salad mix purchased at ALDI, Hy-Vee, and Jewel-Osco stores in Iowa, Illinois, Kansas, Missouri, Minnesota, and Nebraska. As of June 19, 2020, a total of 76 people with laboratory-confirmed Cyclospora infections associated with this outbreak have been reported from 6 states:  Iowa (28), Illinois (23), Kansas (1), Minnesota (10), Missouri (7) and Nebraska (7).

People with laboratory-confirmed Cyclospora infections and who reported eating bagged salad mix before getting sick have been reported from 6 states (Iowa, Illinois, Kansas, Missouri, Nebraska, and Minnesota). Illnesses started on dates ranging from May 11, 2020 to June 14, 2020. Sixteen people have been hospitalized. No deaths attributed to Cyclospora have been reported.

Consumers who have ALDI Little Salad Bar Brand Garden Salad, Hy-Vee Brand Garden Salad, or Jewel-Osco Signature Farms Garden Salad purchased at ALDI, Hy-Vee, and Jewel-Osco stores in Iowa, Illinois, Kansas, Missouri, Minnesota, and Nebraska in their homes should not eat it.

At least 20 people in this cluster shopped at ALDI, and of those, at least 16 (80%) people specifically report purchasing bagged salad mix.  Among people who remembered the specific name of the product, most reported the Little Salad Bar Brand Garden Salad.

At least 37 people in this cluster shopped at Hy-Vee, and of those, at least 16 (43%) people specifically report purchasing bagged salad mix from Hy-Vee.  Among people who remembered the specific name of the product, most reported the Hy-Vee Brand Garden Salad.

At least 6 people in this cluster shopped at Jewel-Osco, and of those, at least 5 (80%) people specifically report purchasing bagged salad mix from Jewel-Osco.  Among people who remembered the specific name of the product, most reported the Signature Farms Brand Garden Salad.

The second annual observance of World Food Safety Day is June 7.

This day is an opportunity to promote awareness about how to keep our food supply safe and recognize the many people who help get healthy and safe food to our tables

True enough, but with COVID-19, and yet another death of a black man at the hands of the police, it is hard to focus on the safety of our food as well.

CDC reports: Knowledge and Practices Regarding Safe Household Cleaning and Disinfection for COVID-19 Prevention — United States, May 2020.

A recent report described a sharp increase in calls to poison centers related to exposures to cleaners and disinfectants since the onset of the coronavirus disease 2019 (COVID-19) pandemic. However, data describing cleaning and disinfection practices within household settings in the United States are limited, particularly concerning those practices intended to prevent transmission of SARS-CoV-2, the virus that causes COVID-19.

Knowledge gaps were identified in several areas, including safe preparation of cleaning and disinfectant solutions, use of recommended personal protective equipment when using cleaners and disinfectants, and safe storage of hand sanitizers, cleaners, and disinfectants.

Thirty-nine percent of respondents reported engaging in non-recommended high-risk practices with the intent of preventing SARS-CoV-2 transmission, such as washing food products with bleach, applying household cleaning or disinfectant products to bare skin, and intentionally inhaling or ingesting these products.

Public messaging should continue to emphasize evidence-based, safe practices such as hand hygiene and recommended cleaning and disinfection of high-touch surfaces to prevent transmission of SARS-CoV-2 in household settings.

Messaging should also emphasize avoidance of high-risk practices such as unsafe preparation of cleaning and disinfectant solutions, use of bleach on food products, application of household cleaning and disinfectant products to skin, and inhalation or ingestion of cleaners and disinfectants.

Well, we all recall the below.  Will the CDC report on the use of lights next?

Law360: Prominent food safety plaintiffs’ attorney Bill Marler of Marler Clark LLP, who has been representing victims of foodborne illnesses since the early 1990s, recently spoke with Law360 about practicing remotely from his home on Bainbridge Island in Puget Sound and about food safety concerns during the COVID-19 pandemic.

Marler began his career in 1993, representing 9-year-old Brianne Kiner who was sickened in the Jack in the Box E. coli outbreak that killed four children and sickened hundreds of others. After securing a $15.6 million settlement, Marler went on to represent other victims of foodborne illnesses against companies such as Chipotle, Dole and ConAgra.

This interview has been edited for length and clarity.

How have you and your firm adapted to working remotely?

We have some people who have always worked remotely. I have an associate who lives in Kentucky, so we have some experience. My nurse works remotely, and my epidemiologist works remotely.

But we always had people in the office. I’ve been practicing law for almost 30 years and I’m like the old school. When I first started practicing, everyone wore a suit and tie and suspenders and bow ties, and you were in the office six days a week. On Saturdays, you dressed in business casual, and that’s obviously changed a lot over time, and everyone is way more casual.

It’s been probably a bit more of an adjustment for me just because I’m an old guy. But I think everyone else seems to relish it, especially the millennials with dogs. All millennials seem to have dogs.

Ha, that describes me, actually.

I have three daughters in the same group, so I say that with the same loving way that I do with them.

I think people are adjusting. I think you have to get over the immediate gratification you get when you walk and talk with someone and ask a question. Now, you’re either Zooming them or calling them or emailing them, and you’re not getting quite that response because they may be out walking their dog. It’s not like they’re not doing their job; they’re doing it at a slightly different time frame.

But we’re still taking depositions, filing lawsuits. I filed a lawsuit today. We do a lot of Zoom meetings. We’ve done two or three Zoom cocktail hours.

You can tell it’s wearing on some people more so than others. People who are maybe a bit more social, you can tell they’re having a little harder time. So I’ve been doing some more outreach and I think that’s been helpful.

But I don’t think we have skipped a beat on how we practice law.

We’re getting a lot of calls from people who are not being called back from health departments, people who have been sick with Salmonella or E. coli and get the diagnosis.

Normally, you would hear that the health department would call them because once you’re diagnosed with salmonella or E. coli or listeria, by law the health department is supposed to contact you. But health departments are focused on other stuff right now, understandably.

It will be interesting to see how if in the next couple of months, if not only recalls are down and inspections are down but you start to see a downturn in the number of E. coli cases or salmonella cases. Is it because people are not going out to restaurants and getting poisoned? Or is it just we’re not tracking the cases? I kind of have a tendency to think that it’s probably because cases are not being tracked.

The long and the short of it: The firm is doing fine. We have lots of cases from years past and things to work on. Not going to cut back on staff at all. I probably wouldn’t do it even if business was down because my people have been with me for a long time.

But in a couple months from now, I think there are going to be less confirmed cases by the CDC [Centers for Disease Control and Prevention] and health authorities, so that’s going to be interesting.

Are you concerned that because the Food and Drug Administration is so focused on COVID-19 and finding a vaccine, are there going to be fewer resources for food safety?

I got a lot of questions early on about the safety of food itself. There are two sides to that equation. Red meat, chicken, lamb, that’s all inspected by inspection services on the USDA [U.S. Department of Agriculture] side. They’re supposed to have an inspector in every plant, and you cannot produce meat and sell it unless there’s an inspector in the plant. That’s just the law.

And so there are inspectors who have gone out sick because of COVID or fear of COVID, and some inspectors unfortunately died. Then you have these slaughter facilities, which are hot spots, and you have lots of them shut down, and of course you have the president ordering everybody to go back to work. That’s super problematic for the inspectors because they’re going into environments that are hot spots. Slaughterhouses are the next old-folks’ homes. That’s just kind of how it is.

There hasn’t been a meat recall in two months, and I can’t think that it’s because everything is running smoothly. I think it’s because there’s been a lack of tests.

On the FDA side, which does imports and all the other foods, cereals, vegetables, they have a limited number of inspectors as it is. Most major food producing facilities might get inspected once every year or two or three. So when they’re limiting inspections because of COVID, it’s kind of hard to argue that it makes a huge difference because they weren’t doing that much inspection to begin with.

But again, the recalls from the FDA have dropped dramatically, and other than that, I think the only CDC report of a multistate outbreak was one involving blackberries that came out in January and February.

So I think there is clearly an impact by their focus on COVID. I’m not saying they shouldn’t focus on COVID.

It strikes me that with 30 million people unemployed, we might be able to find some people who could assist with COVID and assist with food safety, but that’s just me.

Assuming we ever get our [act] together to do testing and tracing, we’re going to have to hire, in a sense, a small public health army to do that. I haven’t seen a big push for that yet.

Do you have any other food safety concerns with regard to the pandemic?

I got a lot of questions early on about the safety of food itself. There still appears to be no evidence that COVID can be transmitted via food, especially food that’s cooked.

There is certainly risk, but there haven’t been any cases by COVID being spread by ready-to-eat food. We haven’t seen anything like that because it’s a primarily inhaled virus.

But COVID cases are going to be really, really hard causation-wise to prove because the incubation period is long and there’s so many ways you can get exposed to it.

If you went to a restaurant and there was an ill worker or an asymptomatic worker and you wound up getting it. But maybe you got it in the subway going to the restaurant or maybe you picked it up on the bus or walking down the street.

So it’s going to be really difficult to try to prove the most likely way an ill patron [contracted COVID]. I’m not saying that there won’t be some lawsuits. I’m sure there will be, but I think causation is going to make it pretty difficult for most of these cases to have legs.

We haven’t gotten any calls, somebody saying, “I got COVID. I think I got it at a restaurant.” We had calls from people who said that they got food poisoning and didn’t go to the hospital because they were afraid that they would get COVID. So there are certainly some impacts.

What litigation do you see arising out of the pandemic?

If I had to guess, the ones where causation would be clearest. I think the ones that you are going to see the most are nursing home cases, failure to properly prevent the spread of a disease. Certainly that’s a negligence standard, and the way that it would play out in the law would be that in some of these early cases, the early transmission cases, the courts probably wouldn’t find liability.

But I think there’s a CDC study of a couple of the nursing homes here in the state of Washington and they had an asymptomatic worker working in two facilities, so that’s obvious how that spread.

The question really is: Could they have put a system in place, PPE [personal protective equipment], hand-washing, to have prevented the spread and whether or not they had knowledge of the risk of spread before and didn’t do anything about it?

I definitely see those kinds of cases because of this ill worker or this failure of having adequate PPE.

I think you’ll see a lot of litigation between various owners of businesses and their tenants who say, “I can’t afford to pay my rent anymore.”

Given probably a 25% unemployment rate in the next 30 days, I think, unfortunately, you’re going to see a lot of people going bankrupt. I don’t know how that’s all going to shake out.

In my space, I have a hard time seeing foodborne illness litigation over COVID. But I can definitely see in some areas, like the medical malpractice area, or I can see workers potentially trying to get around worker compensation situations where they can show some level of negligence or conscious disregard on the part of an employer, which is probably why [Senate Majority Leader Mitch] McConnell and the Republicans want to give immunity.

What were you working on when the pandemic hit?

I’ve been working on the latest romaine lettuce cases from last fall and the Jimmy John’s E. coli cases linked to their continuing to sell sprouts and the hepatitis cases linked to blackberries in the Midwest. Those are all cases that got generated in the last six months by outbreaks, so that’s what we are working on right now.

That’s why I said it will be interesting to see when there’s lack of inspections, lack of recalls, lack of investigations, that whether there’s less litigation in my space because of the lack of investigations, inspections, reports.

We’ve seen that happen in the downturn in the economy in 2008. We saw definitely less inspections, less outbreaks, so that definitely impacted the number of lawsuits that we filed because there were less of them to file.

I’m kind of anticipating something like that again. But the great thing about practicing the same thing since 1993 — so 27 years since the Jack in the Box cases — I’ve seen downturns and upturns and I think, unfortunately, we’ve still not gotten as good as we could be about protecting Americans from foodborne illness.

So it might be a downturn for a few years, but, unfortunately, I think it will be back again. It was just in 2018 that we had one of the largest E. coli outbreaks ever linked to romaine lettuce. They’re still growing romaine lettuce in Yuma and probably haven’t solved the problem and there are probably cases going on right now but nobody’s investigating them.

Aside from work, what have you been doing to keep busy?

I have been walking eight miles a day. The great thing about living on an island is that the traffic has been nothing. We have a lot of trails. It’s a pretty rural island. Sometimes in the morning I’ll just get up and go for a four- or five-mile walk and do it again in the evening, and sometimes I’ll go for a forced eight-mile march.

Sometimes I’ll be walking along, and somebody will drive by, like, “What are you doing? Is your car somewhere?” and I’m like, “No, I’m just out walking.”

I have to admit I’ve been doing a little online shopping. I bought things that are a little bit odd. I won’t necessarily tell you all of them, but I bought my wife some new outdoor furniture to sit on.

I’ve been trying to stay sane a little bit because my normal practice had me on the road two to three days a week somewhere in the world.

I’ve got a case pending in South Africa. I’ve got all of these food safety speeches all over the world and all of those conferences got canceled over the last three months, and some that are scheduled for later this year have gotten canceled too. I was supposed to be in Beijing a month ago and that got canceled.

And then I commute an hour from my house to my office, so I’m saving two hours a day of commuting. I have a lot more time on my hands than I did before, but I seem to be spending my time walking, working in our yard and buying things I don’t need online.

My wife hasn’t left me yet. I don’t know if she’s gotten used to me being here so much, but she clearly had gotten used to me being on the road a couple of days a week. She’s probably been the one to suffer more than anyone.

What are you looking forward to the most when the shutdown ends?

I really enjoy going to these food safety conferences and speaking about food safety. I like the litigation aspect of my job too, but I still enjoy trying to make things better. I miss that a little bit, so hopefully I’ll get back to doing that.

I teach a class at the University of Arkansas on food safety. I teach a seminar every year, usually two to three days, but I had to do it all by Zoom this year, which is kind of weird.

I’m looking forward to doing that more for sure.

And I miss going to my local restaurants on the island where everybody knows your name and they know what drink you order.

We’ve been helping out local businesses here on the island. I’ve donated money to them. They make meals for people who don’t have work or who are hurting. We’ve been trying to help keep the restaurants alive for the reason I’d like them to be there when this is over.

–Editing by Jill Coffey.

Stop Foodborne Illness and the Center for Science in the Public Interest (CSPI) are calling for important changes at the U.S. Department of Agriculture to reduce consistently high burdens of foodborne illness associated with Salmonella and Campylobacter in poultry.

In comments filed with USDA’s Food Safety and Inspection Service (FSIS), the groups said that USDA’s 25-year old regulatory framework lags behind recent advances in science and technology and fails to reflect modern best practices for preventing illness caused by pathogens in food.

“To their credit, FSIS, academic experts, and many poultry industry leaders recognize the poultry safety problem and are working on solutions,” said Stop Foodborne Illness CEO Mitzi Baum. “Consumers rightfully expect, however, that FSIS build today’s best practices into its regulatory system so they can become common practices.”

Two of the country’s leading consumer groups called for key changes in FSIS rules. First, they asked the agency to hold poultry slaughter establishments accountable for minimizing the extent to which live birds entering their facilities are contaminated with dangerous pathogens.  Second, the groups asked the agency to replace the currently unenforceable Salmonella and Campylobacter performance standards with enforceable finished product standards targeting the forms of these bacteria most likely to make people sick.

“Given all that we now know about how disease spreads from farms into our food system, it is no longer acceptable for safety regulations to stop at the slaughterhouse door,” said Sarah Sorscher, Deputy Director of Regulatory Affairs at Center for Science in the Public Interest.  “USDA must work with stakeholders to ensure that harmful pathogens are controlled on the farm, so that sick animals will not spread disease to humans through the food supply.”

Salmonella and Campylobacter together account for more than 70 percent of the confirmed hospitalizations and deaths attributable to the foodborne pathogens monitored by the Centers for Disease Control and Prevention (CDC) in its FoodNet surveillance system, and poultry is a significant contributor to illness.  The groups also endorsed CDC’s conclusion in its 2019 FoodNet report that: “Reducing foodborne illness will require more widespread implementation of known prevention measures and of strategies that target particular pathogens and serotypes.”

The groups are not alone in calling for changes. In 2015, FSIS made extensive recommendations for poultry growers to improve pre-harvest food safety practices and to implement interventions aimed specifically at reducing contamination of live birds with Salmonella and Campylobacter.  In 2019, the National Advisory Committee on Microbiological Criteria for Foods recommended FSIS consider serotype-specific pre-harvest controls and the development of approaches that exclude Salmonella serotypes of public health concern from raw poultry products.  Some poultry companies are reportedly using sophisticated microbial mapping, vaccines, and other modern tools to control hazards in their pre-harvest operations.

“My 18-month son was seriously injured and permanently disabled as a result of Salmonella-contaminated chicken,” said Amanda Craten, who serves on the board of directors of Stop Foodborne Illness. “My family wants nothing more than to support the work of those in USDA, the poultry industry, and the public health community who share our goal of preventing others from suffering what we have suffered.”

The comment from Stop Foodborne Illness and CSPI responds to a petition from the law firm Marler Clark, LLP asking FSIS to declare Salmonella serotypes associated with illness outbreaks to be adulterants under the meat and poultry inspection laws.  The consumer groups’ comment said the petition made a compelling case and should serve as a springboard for reform of the FSIS regulations mandating Hazard Analysis and Critical Control Points (HACCP) and the accompanying pathogen reduction performance standards.