September 2006

Marilynn Marchione, a medical writer for the Associated Press, reports that despite the recent E. coli spinach outbreak, food may be safer now than at any other time in the last decade, with illness occurring at record-low rates, according to new federal statistics:

Consumers get part of the credit, for handling food more safely at home, but experts say the biggest improvement came from better industry controls and inspections.

“The food is actually cleaner to begin with,” said Dr. Robert Tauxe, top food scientist at the federal Centers for Disease Control and Prevention. Certain germs have dramatically declined, and “that to me is really solid progress.”

However, the trend could reverse in coming years if fruit and vegetable growers do not address problems like those that led to the spinach scare, Tauxe and others said.

“The meat and poultry industry has made great strides. The produce industry has a long way to go to catch up,” said Michael Doyle, a microbiologist who heads the University of Georgia’s Center for Food Safety.

Continue Reading Food illnesses decline, CDC reports

I knew this moment would be coming (SPINACH IS SAFE), but frankly, I thought it would be after the conclusion of an investigation, with conclusions and reforms.  I find it perplexing, if not shocking, that Dr. Acheson, for who I have great respect, would simply say all is clear without knowing why this outbreak happened and what we can do to prevent the inevitable next one – if history is any guide.  See my earlier post on past outbreaks tied to lettuce and spinach in the Salinas Valley.  Dr. Acheson’s statements in this Reuters article should cause us all grave concerns about consuming bagged spinach and lettuce:

"The spinach that is going to come on to the market next week or whenever is going to be as safe as it was before this outbreak," Acheson said….Acheson said food growers and processors will have to change some of their practices, although it is not yet clear which ones.

More “smoking” bags of DOLE spinach.   Great job to Health Departments across the country for taking the time to test this material for E. coli O157:H7.  Hopefully, it will help link to where in the chain of distribution DOLE’s product became contaminated.  However, make no mistake, wherever the product became contaminated, DOLE and Natural Selections remain legally obligated to take care of its customers that have been sickened or died.  Frankly, the entire bagged lettuce and spinach industry are morally responsible for these injuries and finding the solution to this repeated crisis (See my earlier post on past bagged spinach and lettuce outbreaks).


Two bags of spinach collected from E. coli patients in Wisconsin are linked to the national outbreak of the disease, state health officials said. The match of the Dole Food Co.-brand baby spinach was confirmed by DNA testing, the state Department of Health and Family Services said.

Three other bags of the Dole spinach — found in Utah, New Mexico and Pennsylvania — have also been linked to the E. coli strain. Each was processed during the same shift on Aug. 15 at a Natural Selection Foods plant in San Juan Bautista, Calif.

Tracing the tainted greens back to the individual fields is difficult because the product of different growers is mixed before being packaged.

On September 25, I posted Survival means sometimes fixing the problem and saying you are sorry; On September 20, I called on the spinach and lettuce industry to step up and pay victims medical bills and wage losses as a first step to helping these families and in saving their industry.  The Press Conference to be held today at 1:00 PST will be interesting to watch.

Natural Selection Foods Media Briefing

WHO: Charles Sweat, Chief Operating Officer, Natural Selection Foods
Mansour Samadpour, Ph.D., Food safety expert, microbiologist
Gary Ades, Ph.D., Food safety expert, microbiologist

WHAT: Natural Selection Foods (NSF) will conduct a briefing for media about the national outbreak of e coli contamination in spinach, including:

  • NSF will share lab test results of its production and distribution facilities in San Juan Bautista
  • NSF will discuss plans to enhance field inspections to improve food safety
  • NSF will discuss steps the company is taking to work with federal and state officials on the ongoing investigation and the outreach to affected patients

WHEN: Thursday, September 28, 2006
1:00 PM Pacific Daylight Time

WHERE: Plaza adjacent to Old Mission San Juan Bautista
406 Second Street
San Juan Bautista, CA 95045

How a Tiny Law Firm Made Hay Out of Tainted Spinach

September 27, 2006; Page B1

Before health officials warned the public about bad spinach, before grocers yanked fresh spinach off their shelves, before consumers cleaned out their refrigerators, the Seattle law firm Marler Clark had filed its first bad-spinach lawsuit.

Then, as word of the bacteria outbreak began to spread this month, lawyers at the firm posted messages on the firm’s E. coli blog, They reached out to reporters and waited for the calls and emails to stream in. Now Marler Clark is representing 76 clients. Bill Marler, a 49-year-old partner in the firm, tracks them with Post-it Notes on a U.S. map hanging in his office.

This latest outbreak of E. coli isn’t the biggest food catastrophe in recent years, in terms of the number of cases, but it is significant for its geographic reach. Extending far beyond just one restaurant or company, it has reared its head in 26 states and Canada and prompted a massive recall of fresh spinach. As of last night, it had affected 183 people and resulted in 95 hospitalizations, one death — and five lawsuits filed by Marler Clark clients.

Continue Reading When the WSJ says something good about a lawyer:

The Rochester Democrat and Chronicle has reported on a spinach lawsuit filed in Rochester in U.S. District Court late Tuesday afternoon on behalf Patricia Ann McCoy of Pittsford, who got sick after eating a bag of Dole brand baby spinach she bought from Martin’s Super Food Store in Perinton on or about August 21.

This suit was filed today by Paul Nunes (aka Vincent), likely the best lawyer in Rochester.  We at Marler Clark are honored that he would ask us to help on the case.

Last week we got a hint that the spinach industry feels that spinach is safe – well OK, not from three counties in California.  But, how can the consuming public be sure of that?  Also, when Salinas product does try to make it back on the market, how can the spinach industry in the Salinas Valley of California can assure us that the inputs to bagged spinach are safe – wait, remind me again why lettuce is safe – given that Salinas lettuce (head and bagged) has been implicated in more outbreaks than spinach, and is grown in the same area, with the same water, workers and processes?

So, really what is the industry as a whole, workers, growers, shippers, processors, industry groups and retailers – from “farm to table” going to do?    Although Natural Selection, the manufacturer of some of the contaminated product, and DOLE the owner of the label that consumers trusted, are in my legal cross-hairs, this is an industry problem that demands an industry solution.  If the industry leaves Natural Selection and DOLE “swinging in the wind,” eventually, perhaps not now, but in the next E. coli outbreak, instead of “hanging together” now, they will “hang separately now” and “hang separately later.” Of course the Western Growers Association have a plan, but it may look like a rehashing of old programs that should have been followed in the first place.

So, will the industry simply let Natural Selection and DOLE twist, or will the industry come up with a solution so this does not have to happen again?  How is the industry going to make the public know that the product that they claim to be good for you will in fact not kill you?  Here are some simple steps to fix the problem and get the spinach and lettuce industry back to work:

1.    Implementation – The industry needs people on farms, who know farms, providing producers with information on risk reduction; individuals who are passionate about the production of safe food, and who can share that passion and knowledge with individual farmers.

2.    Verification – Farmers and processors need to demonstrate to consumers they are aware of microbial risks and are taking serious steps to reduce that risk, day-in, day-out, even in the absence of an outbreak. Regulatory or even third party-audits are largely meaningless.  Audits are snapshots, and auditors look for easily viewed visual mistakes and do little to look at what a farmer or staff member does.  Just like restaurant inspections audits are not a good indicator of likelihood of an outbreak. Farmers need food safety resources 24/7 to help guide their production practices, and they need those best practices continually reinforced; an annual audit is hopelessly insufficient, especially since outbreaks keep happening from processors that are audited.

3.    A proactive Communication program – Talk about real risks, talk about real outbreaks, with farmers, buyers and staff – all staff, because, when it comes to food safety, if the industry is only as strong as its weakest grower, than a specific company is only as strong as its front-line staff. Tell everyone what is being done to address the risks.

4.    Not another program – Guidelines, good agricultural practices sound nice, but on their own are meaningless.  The program itself must be:
•    Flexible and continuously evolving and improving,
•    Easy to understand
•    Provides support for individual growers to help them understand the  requirements,  documentation, principles
•    Utilizes multiple strategies to reduce knowledge, attitude and behavioral barriers Efficient and inexpensive; provide practical, cheap solutions
•    Well documented
•    Compel farmers, processors and staff to care about illnesses through an open dialogue

I’m not making these solutions up, they’ve been in print for a year in Book called “Improving the Safety of Fresh Fruit and Vegetables.”  This information is in a chapter by Ben Chapman and Doug Powell called “Implementing On-Farm Food Safety Programs in Fruit and Vegetable Cultivation.”  

Will the industry survive if the focus is only on doing those things it should have done years ago, and is designed solely to draw customers back to its multi-billion dollar industry?  What about the victims of this outbreak?  What of the nearly 200 sickened, 75 hospitalized, 30 with serious complications and as many as three deaths?  Where are the industry groups like United Fresh Produce Association? According to their website, United Fresh Produce Association is the industry’s leading trade association committed to driving the growth and success of produce companies and their partners.  You’d think that the trade organization would be interested in fixing this problem so they could get back to promotion.  Every time I check their websites for spinach information I’m asked for to sign up as a member. 

All I’m looking for is an apology. Where has the offer been to help now with medical expenses, wage loss and the risks of severe future complications to this deadly bug the industry let out in “triple-washed” plastic bags?  

Here again, Natural Selection and DOLE are in my legal cross-hairs.  But again, this is an industry problem that demands an industry solution.  Frankly, given the size of this outbreak and the severity
of the illness, if the entire industry does not work together to find a creative financial solution for the victims, one by one these companies may fail under the weight of litigation, liability and damages.  Driving companies into the ground is not something good lawyers do lightly or with any relish.  However, between companies who poison and the victims left as a result, the decision for this
lawyer is easy.
In my other life as a principle of Outbreak, I try to teach companies why it is a bad idea to poison people.  What has happened over the last two weeks I think serves as a great example of why that message makes sense.  Despite that the worst scenario has happened, there is now an opportunity for the industry to survive, but it means fixing the problem together and saying you’re sorry together.

Two more cases of illness are being blamed on the outbreak of E. coli linked to fresh spinach. That raises the number of people sickened to 173 in 25 states.

So far, 92 people have been hospitalized, including a Wisconsin woman who died. Two other deaths have been reported in suspected cases — a child in Idaho and an elderly woman in Maryland — but those cases are still being investigated.

Since the outbreak was reported two weeks ago, the FDA has recommended people not eat fresh, raw spinach. State and federal investigators since have traced the contaminated spinach back to three counties in California’s Salinas Valley.

The 25 states that have reported infections are Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Michigan, Minnesota, Nebraska, Nevada, New Mexico, New York, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin and Wyoming.

I have been a proud and sustaining member of the Association of Trial Lawyers of America (ATLA) for years.  However, its gratuitous post on September 25, 2006, entitled "FDA Proves Ineffectual Again: Cannot Accurately Assess Risk To Public Safety," is way off the mark.  The Food and Drug Administration (FDA) is certainly not perfect, few human organizations are, but for ATLA to blame the FDA for the failures of the lettuce and spinach industry is simply wrong. 

Let’s look at the facts:  at least eight of the 19 other food-poisoning outbreaks since 1995 linked to lettuce and spinach were traced to the Salinas Valley.  The outbreaks involved more than 400 cases of sickness and two deaths.  I know because I represented folks sickened or who lost loved ones.  In October 2003, when 13 California retirement center residents got sick and two died after eating E. coli-contaminated spinach.  In September 2003 when nearly 40 patrons of a California restaurant chain got sick after eating salads made with pre-bagged lettuce.  In July 2002, when more than 50 young women got sick at a dance camp after eating pre-washed lettuce. Several of them were hospitalized, and one suffered permanent kidney damage.  In September 2005, health authorities investigating pre-washed lettuce as a source of E. coli outbreaks in Wisconsin, Minnesota and Oregon estimated as many as 244,866 bags of potentially contaminated lettuce made it to store shelves. At least 23 where injured as a result of eating Dole lettuce.  For a comprehensive overview, see: Source for Past E. coli Outbreaks.  This is the industry’s problem, it is not the fault of the FDA, which does a hell of a job with the resources and staff the Bush administration doles (no pun intended) out.

Again, the facts:  in 2004 and again in 2005, the FDA’s top food safety official warned California farmers they needed to do more to increase the safety of their greens.  "In light of continuing outbreaks, it is clear that more needs to be done," the FDA’s Robert Brackett wrote in a Nov. 4, 2005, letter.  Suggested actions included discarding produce that comes into contact with flood waters. Rivers and creeks in the Salinas watershed are known to be periodically contaminated with E. coli, and the FDA warned the industry of that as well.  I guess the FDA tried to lead the horse (industry) to water and I bet the industry wishes it had cleaned the water first.

According the the FDA, to date, 171 cases of illness due to E. coli O157:H7 infection have been reported to the Centers for Disease Control and Prevention (CDC), including 27 cases of Hemolytic Uremic Syndrome (HUS), 92 hospitalizations and one death. To date, 25 states have reported cases of E. coli O157:H7 infection. The 25 affected states are: Arizona (7), California (1), Colorado (1), Connecticut (3) Idaho (4), Illinois (1), Indiana (8), Kentucky (8), Maine (3), Maryland (3), Michigan (4), Minnesota (2), Nebraska (9), Nevada (1), New Mexico (5), New York (11), Ohio (20), Oregon (5), Pennsylvania (8), Tennessee (1), Utah (17), Virginia (2), Washington (3), Wisconsin (43) and Wyoming (1).

We at Marler Clark are representing 61 families, 20 with Hemolytic Uremic Syndrome and investigating 3 deaths attributed to the consumption of E. coli tainted spinach.