July 2005

The Associated Press has chimed in on the lawsuit we filed against Orchid Island Juice on behalf of Heather Dowdy. From the article:

Heather Dowdy of Caldwell filed the lawsuit against Orchid Island Juice Co. of Fort Pierce, Fla., late Thursday in U.S. District Court. Her lawyer, Seattle food illness specialist Bill Marler, said it may be the first of several cases.
Dowdy’s lawsuit said she drank Orchid Island juice on May 30, then fell ill. She sought treatment at a Virginia hospital June 2 and again June 6, when she was admitted with dehydration. Though she was released June 8, her lawyer — Seattle food illness specialist Bill Marler — said his client has been too sick to return to work.
Marler contends Orchid Island was negligent under the federal Food, Drug and Cosmetics Act, which requires companies to use raw materials that are “clean, wholesome, and free from adulteration and fit for human consumption.”
“If Orchid Island had only pasteurized their juice, this outbreak would not have occurred,” he said.

Marler Clark has filed a Salmonella lawsuit was against Orchid Island Juice Company of Fort Pierce, Florida, in US District court for the Southern District of West Virginia Thursday (case no. 5:05-CV-0586). The lawsuit was filed on behalf of Heather Dowdy, a Caldwell, West Virginia resident who became ill with a Salmonella infection after consuming Orchid Island unpasteurized orange juice. We have filed the lawsuit along with David Delk, a respected Wheeling, West Virginia, lawyer.
As I told the local (Morgantown, West Virginia) press today:

Ms. Dowdy consumed Orchid Island orange juice on May 30, 2005, and became ill with symptoms of Salmonella infection on May 31. She went to the emergency room in Virginia Beach on June 2, and again on June 6, when she was admitted to the hospital for severe dehydration. Ms. Dowdy was discharged on June 8, but still suffers from complications of Salmonella infection, and has not yet been able to return to work.
“After the Odwalla and Sun Orchard outbreaks in 1996 and 1999, I would have thought that a juice producer would have more sense than to sell unpasteurized juice and risk facing me in a courtroom after they had poisoned their customers,” said William Marler, managing partner of Marler Clark. “But I guess the lesson has not been learned by all.”
In the lawsuit, which is based on the Federal Food, Drug, and Cosmetic Act, Marler alleges that “Orchid Island had a duty to use supplies and raw materials . . . free from adulteration and fit for human consumption, but failed to do so.”
Marler continued, “If Orchid Island had only pasteurized their juice, this outbreak would not have occurred. Heather Dowdy went through a terrible ordeal. She and other victims did not deserve this.”

On July 8, 2005, the Food and Drug Administration (FDA) warned consumers against drinking unpasteurized orange juice products distributed by Orchid Island under a variety of brand names. At that point, there were reports of 15 cases of a matching strain of Salmonella bacteria causing illness in consumers in Michigan, Ohio, and Massachusetts. At least 16 other states reported cases of Salmonella that matched the specific strain found in Orchid Island orange juice. On July 15, 2005, Orchid Island issued a nationwide recall of fresh and frozen unpasteurized orange juice (see http://www.fda.gov/oc/po/firmrecalls/orchidislandjuice07_15.html). The CDC indicated that as many as 82 cases have been confirmed nationwide.

Time has come to begin trying to hammer out financial settlements for hundreds of people who were sickened by a batch of salmonella-tainted tomatoes last summer. Marler Clark represents 98 of the more than 400 people who were sickened in Pennsylvania, Ohio, West Virginia and six other states after eating Roma tomatoes served at Sheetz stores last year.
As the Associated Press reported yesterday:

Seattle attorney Bill Marler, who specializes in food-related illness, said Wednesday that if a judge approves, he will begin talks with attorneys for the Altoona, Pa.-based Sheetz convenience store chain and its former supplier, the now bankrupt Coronet Foods Inc. of Wheeling.
U.S. Bankruptcy Judge Edward Friend still must approve the mediation, but Marler said that’s likely now that the framework for the talks has been laid out.
Marler said claims in the current case range from $30,000 to $800,000, depending on the severity of the victims’ illness, whether they were hospitalized and whether they have continuing health problems.

“I have settled several thousand salmonella claims,” Marler said. “If the insurer is being reasonable and the clients are being reasonable, these cases should settle.”

Two East Tennessee counties, Campbell and Scott, have reported an increased incidence of hepatitis A cases for the second time this year. The East Tennessee Regional Health Department has confirmed eight cases of hepatitis A since June 25, and the Health Department is working to determine the source of a potential outbreak. In April, 2005, 23 cases were confirmed in Campbell, Scott, and Anderson counties, but health officials were unable to pinpoint the source of the earlier outbreak.
Hepatitis A is a virus that primarily infects the liver. Symptoms of infection may not appear for 15-50 days after exposure to the virus. They include muscle aches, headache, loss of appetite, abdominal discomfort, fever, and malaise. After a few days of initial symptoms, jaundice (yellowing of the skin and eyes) sets in. In rare cases, the hepatitis A virus causes liver failure and impairs the infected person’s cognitive functioning.
“Ideally, outbreaks would be prevented by vaccination against hepatitis A,” said William Marler, a Seattle attorney with a law practice dedicated to representing victims of foodborne illness. “I’ve represented hundreds of people in the last two years who either became ill with, or were exposed to, the hepatitis A virus. Some have had liver transplants, or even died after suffering from acute hepatitis A infection.” The CDC estimates that at least 100 people die each year after suffering from hepatitis A-induced liver failure.
“This is the second time since April that public health has been put at risk in East Tennessee. People need to know that outbreaks can be prevented through widespread vaccination against hepatitis A. It’s time to take this threat more seriously and do what we can to stop outbreaks before they start,” Marler concluded.
Marler has represented hundreds of victims of hepatitis A outbreaks, including over 75 victims of a 2003 hepatitis A outbreak in Pennsylvania that was traced to contaminated green onions, and 29 people who were infected with hepatitis A after being exposed at a Seattle Subway sandwich shop. Marler Clark has also represented thousands of people who were forced to receive Immune Globulin injections to prevent infection with hepatitis A after they were exposed to the virus by infected food handlers.

Orchid Island Juice Company of Fort Pierce, Florida, is voluntarily recalling all unpasteurized orange juice (only) with a code date of 7/25/05 or earlier and all unpasteurized frozen orange juice with expiration codes of 04-25-2007 through 07-08-2007 for Just Pik’t and Natalie’s Orchid Island Juice Company brands, 18-04-2008 through 10-06-2008 for Floridella brands, bottle codes S3.2007.04.27 through S2.2007.06.27 for Herders and St. Marc brands, and bottle code OE55 S1125 for the Sundecker brand. Unpasteurized frozen juice is sold in liter, 60 oz, 1800 ml, 1750 ml, and 250 ml sizes. These products have the potential to be contaminated with Salmonella Typhimurium, a germ that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Otherwise healthy individuals may suffer short-term symptoms such as high fever, severe headache, vomiting, nausea, abdominal pain and diarrhea. Long-term complications can include severe arthritis.
Orchid Island Juice Company distributes unpasteurized orange juice and unpasteurized frozen orange juice in the following states: Alabama, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Puerto Rico, South Carolina, Tennessee, Vermont, Virginia, Washington D.C., West Virginia, Wisconsin, and internationally to Canada, France, and Japan. Consumers may have purchased or consumed the product through retail or foodservice establishments such as restaurants, hotels, resorts, or country clubs.
Orchid Island Juice Company’s unpasteurized orange juice can be identified by the following labels: Natalie’s Orchid Island Juice Company, Ultimate Juice, Albritton Fruit, Finagle A Bagel, Gourmet Garage, Kings Market, Nino Salvaggio, Schnucks, Wegmans, Balducci’s, and Zabars. Unpasteurized orange juice is sold in gallon, quart, pint, 12 oz, and 8 oz sizes. All containers are made of plastic and are clear in color so the orange juice is visible.
To date there has been 15 suspected cases of illness. The company is working with FDA to cooperatively determine the source of contamination. The company will initiate temporary delicate flash pasteurization of orange juice pending a thorough investigation.
Domestic consumers who have purchased unpasteurized orange juice and/or unpasteurized frozen orange juice distributed by Orchid Island Juice Company should throw the juice away and return just the container to the store of purchase for a full refund. International customers need to place the product on “hold”. Consumers with questions may contact Orchid Island Juice Company directly at 772-465-1122.

Connecticut health officials issued a warning early this month after several cases of Cyclospora infection surfaced in New Haven County. At least eight people tested positive for Cyclospora, a parasite. Cyclosporiasis, the illness caused by ingestion of Cyclospora, causes severe diarrhea, bloating, stomach cramps, aches, and low-grade fever. The parasite often is found in contaminated produce.
Marler Clark, the Seattle law firm nationally recognized for its successful representation of victims of foodborne illness, sponsors a blog about Cyclospora and Cyclosporiasis (http://www.CyclosporaBlog.com). The site provides news about outbreaks and information on Cyclospora, as well as a list of resources for victims of Cyclospora infection.
“This site should prove to be very useful for people suffering from Cyclospora infections,” said William Marler, managing partner of Marler Clark. “There is much to learn about this parasite, which is relatively unknown by the public.”
Health officials continue to work to determine the source of the outbreak. A Cyclospora outbreak in Florida earlier this year was traced to contaminated basil.
See also www.salmonellablog.com and www.foodborneillness.com.

In an article that appeared in the June-July 2005 issue of Food Safety Magazine, I wrote about how denying legitimate claims of foodborne illness increases the likelihood of overlooking real problems with food safety, and how overlooking those problems increases the risk of regulatory and health code violations, poisoning consumers, costly litigation, and public relations headaches.
Click here to read the article in PDF

On June 16, 2005, I discussed during a seminar at the University of Guelph why processors, ingredient suppliers, restaurant operators, and any operations involved in the growth, processing, and distribution of food products should understand the legal consequences and dangers of what may happen when foodborne illness strikes as a result of one of their products sold in the U.S. I discussed issues such as liability and how it is determined, the discovery process, and the importance of open communications in the event of an outbreak.
A copy of the Powerpoint presentation is available at http://www.foodsafetynetwork.ca/food/fslitigation.pdf

Strong evidence links orange juice produced at Orchid Island Juice Co. in Fort Pierce to an outbreak of 15 cases of illness caused by a strain of salmonella, the U.S. Food and Drug Administration said Wednesday. In addition, at least 16 other states have reported cases of salmonella that match the specific strain of the Salmonella typhimurium bacterium.
As the Palm Beach Post reported today, Orchid Island, which produces unpasteurized fresh-squeezed orange juice, issued a voluntary recall of its orange juice from stores nationwide and has asked consumers to return any juice on hand to retail stores for a full refund.
None of the illness associated with the juice has occurred in Florida, the FDA said in issuing a nationwide warning to consumers against drinking the juice distributed under the labels Nino Salvaggio’s, Westborn Market and Natalie’s Orchid Island Juice.
S. typhimurium is the most common among the 2,000 kinds of salmonella, said Christine Pearson, a spokeswoman for the U.S. Centers for Disease Control and Prevention in Atlanta.
The strain is the same as that involved in 14 cases of salmonella-related illness associated with Cold Stone Creamery’s Cake Batter ice cream during the same time period in Minnesota, Washington, Oregon and Ohio, Pearson said.
Andrew Meadows, spokesman for the Florida Department of Citrus in Lakeland, said about 9 million gallons a year of Florida orange juice – less than 1 percent of the state’s overall juice production – is of the unpasteurized variety.
George Chartier, a spokesman for the U.S. Department of Agriculture, said Wednesday that 55 processing plants in Florida are approved for pasteurized juice production and three for unpasteurized.

The United States Food and Drug Administration (FDA) announced on July 8, that Orchid Island Juice Co. of Fort Pierce, Florida was recalling unpasteurized orange juice after fifteen cases of Salmonella Typhimurium were traced to consumption of Orchid Island orange juice. In light of the FDA’s recall announcement, Seattle attorney William Marler of Marler Clark has called again on the FDA to completely ban the sale of all unpasteurized juices.
In 1998, the FDA required that juice makers label unpasteurized juices with the statement, “WARNING: This product has not been pasteurized and, therefore, may contain harmful bacteria which can cause serious illness in children, the elderly, and persons with weakened immune systems.” But although at least three large Salmonella outbreaks have been traced to contaminated juice products since 1999(1), the FDA does not require juice companies to pasteurize juice, and no longer requires producers of unpasteurized juice to provide warning labels on their juice products.
“It is simply outrageous that after all we’ve learned about the importance of pasteurizing fruit juice, especially after the Odwalla and Sun Orchard outbreaks, we still have companies selling unpasteurized juices without warnings, the government allowing it, and people getting sick because of it,” said Marler. “Why the FDA would allow a company to produce an unpasteurized product and allow no warning label is beyond me.”
Symptoms of Salmonella infection include diarrhea, abdominal cramps, fever, nausea, and/or vomiting, and usually begin within 6 to 72 hours after ingestion of the bacteria.
“I’ve represented thousands of victims of Salmonella outbreaks,” Marler continued. “Infections are not pretty. These people suffer from intense abdominal cramps, bloody diarrhea, and severe nausea and vomiting. These 15 people could be perfectly healthy had the juice they were sold been pasteurized.”