January 2007

According to United Press International customers remain leery because the Spinach E. coli outbreak, which killed three (possibly as many as 5) people and sickened at least 200 others.

U.S. sales of fresh packaged spinach remain way down four months after an E. coli outbreak ended, a fresh-food market researcher reported. Packaged spinach sales were down 37 percent the week ended Dec. 23, compared with the same period a year earlier, to $976,699, the Perishables Group of West Dundee, Ill., said. Bulk spinach sales, a smaller market, were off 22 percent. Sales of packaged salads that contain spinach are down 28 percent year-over-year to $1.4 million, it said.

Students at Risk of Deadly Food-Borne Pathogens, Report Warns

Ask any kid what they think of their school cafeteria. Then ask the scientists at the Center for Science in the Public Interest (CSPI). The answers are likely to be similar.

A report issued by the CSPI warns that conditions in America’s school cafeterias could trigger potentially disastrous outbreaks of food poisoning at any time. Hartford, Conn., received the lowest score of all the systems studied.

CSPI’s Outbreak Alert database has documented more than 11,000 cases of foodborne illnesses associated with schools between 1990 and 2004. Just one outbreak can have devastating consequences on the health of students, productivity in the classroom, and even on school district’s finances.

To protect school children from food poisoning, CSPI recommends the following measures:

• State and local governments should adopt up-to-date safety standards and receive adequate funding to ensure compliance with federal inspection regulations outlined in the Child Nutrition and WIC Reauthorization Act of 2004.

• Schools should request timely inspections, employ certified food handlers, and use the best food safety procedures.

• Parents should monitor conditions in their child’s cafeteria and advocate for optimal food safety policies.


Gateway Cold Storage Ammonia Poisoning Litigation

Marler Clark represented 35 students and teachers who suffered food poisoning after eating ammonia-tainted chicken in a school lunch served at Laraway Elementary School in Joliet, Illinois, in 2002.

Hundreds of children and teachers ate the lunch of chicken tenders which were contaminated with ammonia up to 133 times the level considered acceptable for human consumption. Investigators learned that the chicken had been contaminated by an ammonia leak at Gateway Cold Storage in St. Louis, Missouri. Once discovered, the plant planned to throw out the tainted food, but instead hundreds of cases of chicken were fumigated and repackaged and shipped to schools.

In a rare criminal follow-up, state authorities indicted two Illinois Board of Education members and an operations manager of a food distribution warehouse.

Finley School District E. coli Litigation – Washington

In 2001, Marler Clark won a record $4.6 million judgment on behalf of 11 children sickened by E. coli O157:H7 in undercooked taco meat served at a school lunch at Finley Elementary School in southeast Washington State. The jury award was subsequently upheld, and the state Supreme Court declined to review that decision.

A jury agreed with state Health Department investigators who concluded that the E. coli infections came from hamburger meat that had been frozen, then inadequately thawed and cooked for the school lunches. Most of the award went to a young girl, then just 2 years old, who didn’t eat the meal but was later infected by one of the older victims. The youngster underwent kidney dialysis and is expected to have lifelong aftereffects from the E. coli toxins.

Tainted Spinach May Be Responsible

Family members of two elderly women — one from Washington and another in Maryland — said spinach tainted with E. coli may be at least partly responsible.  The Food and Drug Administration and Centers for Disease Control are investigating the deaths.

If confirmed, the cases would bring the number killed as a result of the E. coli outbreak from three to five. Many others were sickened, but recovered.  Officials said 83-year-old Betty Howard of Richland, Wash., died Friday, five months after being hospitalized after eating spinach.  Howard’s family said the woman actually died of heart failure. But the family’s attorney, William Marler, said the woman’s body began giving out only after she fell ill from tainted spinach.

Marler, who is representing more than 90 of the E. coli victims, said Dole has paid all of the out-of-pocket medical expenses for his clients who were hospitalized, including Howard.

The second recent death being investigated is 86-year-old June Dunning.  Health officials said Dunning, who died in September, tested positive for E. coli. However, the sample that tested positive was lost.  But Dunning’s family members said they have other proof: a half-eaten bag of pre-washed Dole baby spinach with the same use-by date and lot number implicated in the outbreak. They said they have handed it over to the CDC but still have not received any test results.

However, it appears that Dole and Earthbound Farm/Natural Selection Foods are probably going to be paying a lot more money than that. Marler said he has filed eight lawsuits in six states.  Earthbound Farm/Natural Selection Foods opted not to comment on the deaths, citing pending legal action.

John K. Wiley of the AP wrote today: “Wash. woman sickened by E. coli dies”

An 83-year-old Richland woman sickened by tainted spinach in September has died. Betty Howard died Friday of heart failure in a Richland rehabilitation facility, nearly five months after she was hospitalized with symptoms of sickness caused by eating contaminated spinach, said Bill Marler, a Seattle lawyer.

She had been living independently in her own home until she became ill, her son said.

Marler, who also represents families of two other victims of the tainted spinach outbreak, said he doubts Howard will be listed as a victim, even though her case was confirmed by genetic tests that linked it to the fatal strain of E. coli. “It’s DNA fingerprint matches all the others in the outbreak and that in bags of spinach,” he said. “Whether they list it as the cause of death, it’s unlikely, given the time frame between the outbreak and her death and given she was 83.”

Marler said Howard was living independently “and doing pretty well, but she ate spinach and went downhill from there.”

See www.ecoliblog.com for more detail on E. coli caused death in the elderly.

An E. coli outbreak last year sickened about 81 people who had eaten at Taco John’s restaurants in Austin, Albert Lea and Cedar Falls, Iowa, in November and December. Among those sickened, 26 were hospitalized.

Tim Engstrom, managing editor of the Albert Lea Tribune and I spoke last week about the Taco John’s lawsuit specifically and food safety in general.  Here are a few excerpts from the story – Lawsuit: Restaurant must provide safe food

Albert Lea resident Julie Johnson is suing the owners of Taco John’s in Albert Lea and not the restaurant’s distributor of produce or others up the line because of laws regarding strict liability, said her lawyer, Bill Marler of Seattle, in an interview with the Tribune.

“It is their responsibility to provide safe, wholesome food to their customers,” Marler said. “They are the ones who invite customers in to eat their food.”

Under strict liability law, anyone who makes a product — whether it is a taco or an automobile — is responsible for that product, even if something in it — such as lettuce in the taco or tires on an automobile — turns out faulty, Marler said.

It doesn’t mean, he added, that local owners can’t turn around and seek to recover their losses through the companies up the chain of distribution. Sometimes they do that in the form of a simple request and sometimes the owners bring them into the existing lawsuit.

It’s not unheard of in these cases, Marler said, for the owners of the restaurant to seek not only direct cost of lawsuits and discarded products but also the lost revenue from a decline in customers.

“I’m a strong believer that restaurants need to be more proactive in who their supplier is,” Marler said. “Once that product gets in that restaurant, it is too late to do anything about it.”

Marler has made a career on litigating food-borne illnesses and has represented people against Chili’s, Chi-Chi’s, ConAgra, Dole, KFC, Supervalu and Wendy’s, among others. He was part of the infamous Jack in the Box lawsuit of 1993. He also has been part of many cases concerning contaminated water. He speaks to food industry groups, public health organizations and fair associations about safety and avoiding litigation.

Marler said there has been a reduction in cases for E. coli outbreaks in meat because the major food retailers — McDonald’s, Wal-Mart and others — became stricter with their suppliers. As a result, meat packers began testing more.

“And guess what? It worked,” Marler said.

I posted some research on E. coli, illness and death in the elderly that may be of use to those interested in these deaths – the post is “The E. coli O157:H7 Bacteria and the Significance of Age:

Elizabeth, “Betty” Howard, 83, of Richland, Wash., died of heart failure in a rehabilitation facility today, after a nearly five-month long battle with E. coli. She is the fourth to die from an outbreak that killed three this fall.

Bags of spinach in June Dunning’s refrigerator tested positive for the bacteria. The 86-year-old of Hagerstown, Md., died Sept. 13.  The outbreak was traced to pre-washed, bagged spinach from processor Natural Selection Foods of San Juan Bautista, Calif., sold by Dole. It sickened 199 people in 26 states, according to the Food and Drug Administration.

By Elizabeth Weise, USA TODAY

The E. coli outbreak that swept the country this fall, killing three people, claimed its fourth victim Friday.

Meanwhile, there was new evidence that a death occurring back in September may have been part of the same tragedy, which could raise the death toll to five.

The latest victim is 83-year-old Elizabeth, “Betty” Howard of Richland, Wash., who died Friday of heart failure in a rehabilitation facility after a nearly five-month long battle with E. coli O157:H7, her son Darryl Howard said.

The other victim was June Dunning, 86, of Hagerstown, Md., who died Sept. 13. She tested positive for E. coli O157:H7 at the hospital, Howard said. But because the Maryland Dept. of Health lost culture samples from her illness, the state was unable to confirm the cause of her illness so she had not been officially included in the death toll.

However, the Centers for Disease Control and Prevention confirmed in a letter to Dunning’s family Thursday that tests on the two bags of spinach in her refrigerator were positive for a closely related, and potentially fatal form of the bacteria, E. Coli 0146:H21.

The letter from Cheryl Bopp at CDC’s division of Foodborne Diseases states that the type of E. coli found in Dunning’s spinach was “indistinguishable” from that found in a sample of spinach from Illinois “which also yielded the outbreak strain of E. coli O157:H7.”

In October Caroline Smith DeWaal, food safety director of the Center for Science in the Public Interest, had sent a public letter to the CDC asking that Dunning be included in the death toll because of the strong circumstances linking her death to the others.

The outbreak was traced to pre-washed, bagged spinach from processor Natural Selection Foods of San Juan Bautista, Calif., sold by Dole. It sickened 199 people in 26 states, according to the Food and Drug Administration.

Howard became ill after eating a turkey sandwich with spinach on it. She had been living independently in her own home until she became ill with the O157:H7 strain of the virus. She went into the hospital on Sept. 7 several days after eating the sandwich and never returned home.

“E. coli is like running the blood through razor blades. It devastates every part of the body,” her son said. He said his mother worked for years as a secretary at the Dept. of Energy’s Hanford (Wash.) Nuclear site.

Howard’s medical bills in the rehabilitation center where she died were paid for by the Dole company’s insurer, her lawyer, William Marler said.

Dunning became ill after eating spinach salad on Aug. 28 of last year. On Sept. 2 she was hit with “horrible, bloody diarrhea,” her son-in-law Warren Swartz said. She went into the hospital and never came home.

On Sept. 6 doctors told the family that they’d gotten results back from the stool sample they’d taken when Dunning first entered the hospital and that she had E. coli O157:H7.

“We said ‘What’s that? It sounds like something from Mars,” Swartz said. “The doctor said ‘It’s very rare and in over 30 years of practice I’ve never seen it.’ ” The infectious disease doctor told them that it came from hamburger.

“We said she doesn’t eat hamburger, she loves vegetables,” Swartz said.

Dunning fell into a coma that evening and died on Sept. 13.

Born in Catford, England, she married an American and moved to the United States after the end of her husband’s 20-year-career in the U.S Army, her son-in-law said.

After her death, Swartz looked up E. coli on the Internet and realized that there was a nationwide outbreak associated with spinach. In their refrigerator Swartz found a half-eaten bag of pre-washed Dole baby spinach with the same use-by date and lot number implicated in the outbreak.

He and his wife Corinne turned the bags over to the Maryland Dept. of Health and Mental Hygiene, which passed them along to the CDC, he said.

Other deaths related to the outbreak include Ruby Trautz, 81, of Omaha, Kyle Allgood, 2, of Chubbuck, Idaho, and Marion Graff, 77, of Manitowoc, Wisc.

It seems that hardly a week passes without a warning from a health department somewhere that an infected food handler is the source of yet another potential hepatitis A outbreak. Absent vaccinations of food handlers, combined with an effective and rigorous hand washing policy, there will continue to be more hepatitis A outbreaks. It is time for health departments across the country to require vaccinations of foodservice workers, especially those that serve the very young and the elderly.  Over the last several years, I have brought Hepatitis A claims against Carl’s Jr., Chi-Chi’s, D’Angelo’s, Friendly’s, Maple Lawn Dairy, McDonald’s, Quizno’s, Silver Grill Location Catering and Subway.

The Centers for Disease Control (CDC) estimates that 83,000 cases of hepatitis A occur in the United States every year, and that many of these cases are related to foodborne transmission. In 1999, over 10,000 people were hospitalized due to hepatitis A infections and 83 people died. In 2003, 650 people became sickened, 4 died and nearly 10,000 people got Ig shots after eating at a Pennsylvania restaurant. Not only do customers get sick, but businesses lose customers or some simply go out of business.

Hepatitis A continues to be one of the most frequently reported, vaccine-preventable diseases in the United States, despite the FDA-approval of hepatitis A vaccine in 1995. Widespread vaccination of appropriate susceptible populations would substantially lower disease incidence and potentially eliminate indigenous transmission of hepatitis A infections. Vaccinations cost about $50. The major economic reason that these preventative shots have not been used is because of the high turnover rate of foodservice employees. The argument is that why should I vaccinate my employee only to have them leave in a few months to another restaurant? That argument disappears, and eating out becomes a whole lot less of a gamble, if all foodservice workers faced the same requirement.

According to the CDC, the costs associated with hepatitis A are substantial. Between 11% and 22% of persons who have hepatitis A are hospitalized. Adults who become ill lose an average of 27 days of work. Health departments incur substantial costs in providing post-exposure prophylaxis to an average of 11 contacts per case. Average costs (direct and indirect) of hepatitis A range from $1,817 to $2,459 per case for adults and from $433 to $1,492 per case for children less than 18 years of age. In 1989, the estimated annual direct and indirect costs of hepatitis A in the United States were more than $200 million, equivalent to more than $300 million in 1997 dollars.

From this moning’s Kane County Chronicle

Hep A shots continue, lawsuit in works

On Thursday, the Seattle-based law firm Marler Clark said in a release that they would be filing a class-action lawsuit against the restaurant on behalf of Geneva resident Rebecca Johnson and her family.

People who ate at the restaurant between Jan. 8 and Jan. 19, especially those who ordered drinks with ice, should call the health department hotline at (630) 444-3300. The department set up a clinic that runs from 7:30 a.m. to 7 p.m. It started Monday and ends Feb. 2 at 1330 N. Highland Ave., Aurora.

Department spokesman Tom Schlueter said that, as 3 p.m. Thursday, the department had given 2,335 shots of immunoglobulin and returned 1,001 calls from the hotline.

From the Monterey Herald today – you have to give me some credit – “Daniel in the Lion’s Den” comes to mind.

The National Steinbeck Center will kick off the fourth season of its Ag Forums with the presentation of Bill Marler, a Seattle-based lawyer who has represented clients in litigation with companies such as ConAgra, Dole and Jack in the Box in food-borne illness cases.

Marler’s law firm represents 93 people with claims resulting from the 2006 spinach E. coli outbreak. He will discuss food safety, the fresh produce industry and E. coli.

Hullaballoo Chef Todd Fisher will prepare a special spinach lunch menu.

The event takes place noon to 2 p.m. on February 28th at the National Steinbeck Center, One Main St., Salinas. Tickets are $35 per session or $125 for the series.

According to Jacob Adelman of the Associated Press, State Sen. Dean Florez, D-Shafter, is butting heads with farmers over proposed regulations. The regulations would:

1. force growers to protect their crops by monitoring water quality
2. restrict wild animals from farm areas
3. call for a system to track produce from fields to store shelves
4. ban the use of manure as fertilizer and reclaimed water for irrigation

According to the AP, the new regulations promoted by Florez would be tougher and more precisely worded than the current state guidelines that urge growers to be mindful of bacteria sources but specify no punishment for problems. Florez wants the state to allocate as much as $25 million to pay for government inspectors who will have the authority to quarantine fields that violate the regulations.

Unfortunately, the legislation is proving to be a hard sell to state farmers who could have their crops condemned if they’re caught violating its rules.

The Western Growers Association, is preparing a self-regulating scheme to head off Florez. Their plan would require handlers and shippers to buy from growers who can show they protected crops against E. coli and other contamination.

“We’re the guys who understand our business and what needs to be done,” said Imperial Valley spinach and lettuce farmer Jack Vessey, who supports the industry-led approach.

Of course the industry hasn’t done a thing over the last ten years and twenty-one outbreaks to solve the problem, so why should we believe them now?

From USA Today:

Some farmers are leery of having state laws govern them and would rather set the rules themselves, said Jasper Hempel, general counsel for the Western Growers Association, which has more than 3,000 members in the fruit and vegetable industry.

Some California legislators say the safety standards should be set by the state. “Should our health and safety standards be in the hands of an industry that has been the source of so many contaminations in the past?” asks Democratic state Sen. Dean Florez.

Consumer groups fear that the rules will be hammered out behind closed doors with little input from the public. “Industry self-regulation seldom protects consumers and often provides industry with cover when contamination occurs,” said Elisa Odabashian, director of the West Coast office of Consumers Union, which publishes Consumer Reports.

The real question is whether any of these standards will really make food safer, says Doug Powell, a professor of food safety at Kansas State University in Manhattan. Simply following current guidelines known as Good Agricultural Practices, such as providing field workers with portable toilets and testing irrigation and produce wash water for E. coli, would go a long way toward making food safer, he says. “Every farmer has to create a culture that values food safety on each and every farm,” Powell says.

AP this morning noted:

Some members of the industry said they want even stronger regulations than those in the marketing agreement. which covers California produce companies.

“It quite frankly needs to be done on a federal level and on a mandatory level because that’s what the public needs to hear,” said Steve Dickstein, a spokesman for Irwindale-based Ready Pac Produce.

The United Fresh Produce Association, which represents growers nationwide, has asked the U.S. Food and Drug Administration to institute federal produce-handling standards.

Paul Dailing of the Kane County Chronicle wrote this morning about our client who is considering filing suit against the Geneva Houlihan’s. I have repeatedly encouraged and warned restaurants that it is the customers and their own interest to vaccinate all employees for Hepatitis A BEFORE they are allowed to serve food. Had Houlihan’s required employees to be vaccinated, it now wouldn’t be facing thousands of customers angry over having to stand in line of immunoglobulin (Ig) shots. Houlihan’s and customers also would not be facing weeks of waiting to see if Hepatitis A illnesses surface.  Over the last several years, Marler Clark has brought Hepatitis A claims against:

Carl’s Jr.
Maple Lawn Dairy
Silver Grill Location Catering

A couple of key points in the Chronicle’s article entitled: “Houlihan’s lawsuit possible”

  • Anyone who ate at the restaurant from Jan. 8 to 6 p.m. Jan, 19 might be infected. Jan. 8 was the first day that the worker exhibited symptoms and was, therefore, contagious.
  • “It’s only the people who ate at the restaurant and had an ice beverage,” health department spokesman Tom Schlueter said. “Hopefully, this person who had hepatitis washed his hands. We don’t know that.”
  • The department is trying to locate the 3,000 people who ate at the restaurant during that time.
  • A hot line has been set up at (630) 444-3300. Between 7:30 a.m. Monday morning and 3 p.m. Tuesday the department gave out 1,314 free shots of immunoglobulin to Houlihan’s patrons, Schlueter said.

This is not our first case in Suburban Chicago. In 2003 we represented nearly 50 people who contracted salmonella poisoning at Chili’s Grill and Bar in the Chicago suburb of Vernon Hills, north of Chicago, Illinois. Health authorities reported that the restaurant continued to operate even after a dishwashing sanitizer broke down and the kitchen lost its fresh water supply. County officials called it the worst salmonella outbreak in nearly 20 years. Among those sickened were 29 restaurant workers, and authorities blamed the outbreak on poor sanitation, including the lack of safe water for hand-washing.

For updates on Hepatitis A visit my Hepatitis Bog.