February 2007

Had a great spinach lunch at the Steinbeck Center in Salinas today – actually a spinach salad followed by spinach-stuffed chicken.  The group of about 250 – 300 consisted of lettuce and spinach growers from the entire region.  Hopefully, we both learned a bit.  Several members of the press were there – here is one that hit the wire in the last few moments:

KSBW – SALINAS, Calif. — A lawyer representing about 90 plaintiffs in lawsuits stemming from the 2006 spinach E. coli outbreak spoke to a group of agricultural leaders in Salinas Wednesday.

Bill Marler said he wants to educate the industry about these costly lawsuits.

The Ag Forum committee said Marler was invited to speak to provide the perspective of those who were victims of food poisoning.

Marler has filed lawsuits against Dole, Natural Selection/Earthbound Farm and Mission Organics.

“Hopefully we leave here perhaps not friends, but with an understanding of how the process operates,” Marler said.

The E. coli outbreak killed at least three people and sickened more than 200.

It also touched off a criminal investigation that is still ongoing.

I am looking forward to my talk in the morning to the Agricultural Forum.  My speech “Put me out of business – Please” is a sell out.  However, I am not sure they are coming to hear me, eat the spinach salad or get the “I Love Spinach” bumper stickers.  PowerPoint below:


Op-ed – Rochester Democrat and Chronicle
William Marler and Paul Nunes
Guest essayists

(February 27, 2007) — In 1906, Upton Sinclair penned his great American novel The Jungle about the corrupt meat-packing industry. He described in shocking detail how dead rats were processed into sausage while bribed inspectors looked the other way. The book inspired great change in the industry.

One hundred years later, the American Meat Institute can boast that since 1999, the incidence of E. coli in ground beef samples tested by the Agriculture Department has declined by 80 percent to a fraction of a percent. The Centers for Disease Control and Prevention reports that E. coli outbreaks linked to tainted meat have declined by 42 percent.

How did this change happen? Michael Taylor, head of the USDA’s Food Safety and Inspection in the mid-1990s, introduced a mandatory risk-management system requiring meat processors to adopt precautions such as carcass washes, citric acid sprays, steam pasteurization and air-exchange systems. The U.S. meat industry now staffs in-house microbiologists or contracts with outside labs to test for E. coli and other contaminants before meat is shipped to consumers.

Today, however, the apparent greater risk to the public is not meat, but produce. In recent months as many as 150 people across the Northeast and upper Midwest became ill after eating contaminated lettuce at fast-food restaurants.

A few months ago, 200 people got sick and at least four died from eating E. coli-contaminated spinach. In September 2005, more than two dozen were sickened, including one young girl who suffered acute kidney failure, after eating bagged, pre-washed lettuce. Similar outbreaks occurred in 2002 and 2003.

The Food and Drug Administration reported more than 21 E. coli outbreaks related to fresh leafy produce in the last 10 years with nearly 1,000 sickened. Upstate New York is not immune. The New York Department of Health confirms that many victims of the Taco Bell E. coli outbreak are residents of western and central New York.

To prevent future outbreaks, we need to serve notice to produce processors that E. coli is an adulterant that will no longer be tolerated in our fresh produce supply. The produce industry must adopt the same attitude that meat processors adopted years ago.

Moreover, Congress should conduct hearings to consider the following:

# Producing an E. coli vaccine for cattle.

# Irradiation for all mass-produced foods, including produce.

# Updating our food safety regulations (given post-9/11 risks).

# Granting state and/or federal authority to order product recalls.

# Establishment of a single federal agency responsible for all food safety.

# Clarifying state agencies’ role in the network of defense against food-borne illnesses.

# Better funding for state health departments in identifying and stopping foodborne outbreaks.

# Improvement of treatment for victims of E. coli.

Finding solutions will not only help the food industry but will also help prevent innocent people from being sickened by eating what is supposed to be good for them.

According to Beijing Associated Press, China is recalling U.S. peanut butter following the manufacturer’s announcement that certain batches had been tainted with salmonella, state media said Sunday.

ConAgra Foods Inc. last week recalled all Peter Pan and Great Value peanut butter made at its Sylvester, Ga. plant after health officials linked the product to a salmonella outbreak that has sickened at least 329 people in the United States since August.

China imported three batches of the two peanut butter brands in September and December of 2006 and January of 2007, totaling 742 cases, the official Xinhua News Agency said.  At least 156 cases have already been sold in Beijing, it said.

U.S. shoppers have been told to toss out jars having a product code on the lid beginning with “2111,” which denotes the plant. The jars being sold in China had the same code on the lids, Xinhua said.  Xinhua did not say if there had been any reports of people getting sick in China from eating the peanut butter.

No, those are not lawyers (well, I don’t think), but are the rats found in a NYC Taco Bell – remember the recent E. coli outbreak?  We are representing nearly two dozen people sickened after eating E. coli contaminated tacos at Taco Bells in New York, New Jersey and Pennsylvania.  Anyway, back to Peanut Butter – Jennifer Emert from WALB News 10 and I spoke by phone about the recent recall of Con Agra Peanut Butter:

Here are today’s other major developments. A Seattle attorney today filed a class action lawsuit with more than three-thousand people who believe peanut butter made them sick, and production at the Sylvester ConAgra Foods plant is still stalled.

Seattle Attorney Bill Marler has filed a class action lawsuit against ConAgra Foods. “The calls have come in from every corner of America, several foreign countries and we even got an e-mail from a Sergeant serving in Iraq, who’d gotten the peanut butter in a care package.”

Also, last Friday I spent a pleasant hour talking with NPR correspondent Margo Adler of Justice Talking.  And camera crew from CNN  And Oregonian reporter, Alex Pulaski

All are doing stories that will air or be in print over the next few weeks.  Food safety and the rash of recent outbreaks and illnesses tied to our food supply is finally getting the attention is requires.

FDA Update on Salmonella Outbreak Linked to All Peter Pan Peanut Butter and Certain Lot Numbers of Great Value Brand Peanut Butter

Product testing by several states has now confirmed that Peter Pan peanut butter and certain Great Value brand peanut butter are the sources of the foodborne illness outbreak of Salmonella that began in August 2006. Opened jars from people who were sickened in New York, Oklahoma and Iowa tested positive for Salmonella. To date 329 individuals have become ill from consuming the contaminated peanut butter, and 51 of those persons were hospitalized.

The voluntary recall includes all containers, varieties and types of Peter Pan peanut butter products purchased from May 2006 through present. All Peter Pan products are manufactured in a single ConAgra facility located in Sylvester, Georgia that is identified as 2111; the number 2111 is included in the lot codes for all products manufactured at this particular facility. Great Value products are manufactured at several different facilities including the ConAgra facility in Sylvester, Georgia. Only Great Value products with lot numbers beginning with 2111, indicating they were manufactured at ConAgra’s Sylvester, Georgia facility, are included in the current peanut butter recall. The lot numbers beginning with 2111 should be on the lids of product.

We have learned that of the people who have tested positive, 2/3 have had positive Salmonella stool cultures and 1/3 have been positive Salmonella urine cultures. We have also learned that of the jars that have tested positive for Salmonella, that peanut butter was produced over several months, showing a systemic problem within the ConAgra facility.

We have been contacted by over 3,700 people to date.  Nearly 2,500 have left over jars of peanut butter with product code 2111.  Most were never cultured for Salmonella, but all report classic symptoms of a Salmonella infection.

Salmonella Confirmed In Georgia Peanut Butter

According to AP reports a few moments ago:

A week after ConAgra Foods Inc. recalled peanut butter from its Georgia plant after a salmonella outbreak, the Center for Disease Control confirmed the presence of the dangerous germ.  Opened jars from people who were sickened in New York, Oklahoma and Iowa tested positive for salmonella, said Dave Daigle, a spokesman for the CDC in Atlanta.

“Now the question becomes, how did the salmonella get in the jar,” Daigle said.

CDC Outbreak update:

As of February 21st at 12 PM EST, the last time when numbers were updated, 329 persons infected with the outbreak strain of Salmonella Tennessee have been reported to CDC from 41 states. Among 249 patients for whom clinical information is available, 51 (21%) were hospitalized. No deaths have been attributed to this infection. Onset dates, which are known for 224 patients, ranged from August 1, 2006 to February 2, 2007, and 60% of these illnesses began after December 1, 2006.

Marler Clark updates can be found at www.peanutbutterclassaction.com:

Over the last week we have responded to nearly 3,500 emails and phone calls. from people who believe that they have been sickened by contaminated peanut butter.  Jason, our tech guy, built the site above – www.peanutbutterclassaction.com – to help our clients and lawyers referring cases to us (nearly 50).  I hope the public finds the site helpful as well.

By Paula Schaap from Verditsearch

Bill Marler, a litigator who specializes in representing plaintiffs who were sickened by food-borne pathogens, said he is in the enviable position of not having to prove fault. But when he explains that to food growers, packagers and distributors during settlement discussions, he often has a problem getting his adversaries to understand.

"The concept of strict products liability, especially as it relates to food, is always a little bit difficult for defendants to get their heads around," Marler said. "It’s not like an auto accident where both sides say the light was green. In these instances, the light is always green for me."

Once the food companies and their insurers understand the concept that they are liable if they are in the chain of distribution, no matter where in the chain the contamination occurred, the focus shirts to damages and what a jury would be likely to award, Marler said.

Marler recently settled a large group of cases on behalf of customers who purchased tomatoes contained in salads or sandwiches at Sheetz convenience stores and became ill with salmonella poisoning over the Fourth of July weekend in 2004. In the tomato cases, 429 confirmed salmonellosis cases were identified in nine eastern states, according to the Centers for Disease Control. Marler represented the majority of the plaintiffs and brought claims against Sheetz Inc., Altoona, Pa., and Coronet Foods Inc., Wheeling, W. Va., the firm that packaged the tomatoes.

People with salmonella poisoning can suffer a range of illnesses, from mild gastroenteritis to symptoms severe enough to require hospitalization. In rare cases, victims can die. However, in the case of the tomato salmonella outbreak there were no deaths.

So far, Sheetz settled almost every case with the clients Marler represents for confidential amounts, Samaratunga v. Sheetz Inc. Only one lawsuit is pending in Pennsylvania state court.

This year, Marler’s firm is once again busy representing victims of food-borne illnesses after a nationwide recall of spinach that was tainted with the E.coli bacteria. Marler represents 96 claimants in 26 states.

Marler also spends time counseling his potential adversaries on how to make the food supply safer, through his nonprofit corporation, OutBreak Inc.

"I’ve taken close to $300 million from the food industry for my clients," Marler said, "but I don’t have a burning interest to own a jet."

Marler gave an example of his approach to settlement in another set of cases involving contaminated lettuce.

"I went into mediation and all the defense attorneys were pointing fingers at each other, so I put my head down on the table," Marler said.

When the mediator asked him if he was okay, Marler said to the distributor in the lettuce case, "In a few months your insurance company is going to settle and then the rest of you are going to settle and until then you’re going to keep fighting me."

Marler then stood up and announced, "But I’m in Seattle, it’s a beautiful day and I’m going to the beach."

Since last Thursday we are in the process of responding to over 3,000 emails or phone calls for people from nearly every State and several foregin countries about salmonella-contaminated peanut butter.  Our great staff and attorneys are working hard to respond to everyone as quickly as possible.

We have asked people to respond to my email – bmarler@marlerclark.com – and to provide us with the names and ages of all family members who became ill after eating the peanut butter, as well as a phone number and mailing address so that we can mail an investigation packet (questionnaire, releases and retainer agreement) and begin collecting information about the claim.

In addition:

  • We encourage all people who are still experiencing symptoms of a Salmonella infection to seek medical attention and to obtain a stool test, which your primary physician can order and have done at a local lab. Your local health department may also be of some assistance in having a stool test done.
  • Retain any jars of Peter Pan or Great Value peanut butter (with code beginning 2111) that you have not yet thrown away, whether opened or not. If there are jars that you have recently thrown away that are retrievable, please take them out of the trash and keep them. Please place the jars in a plastic bag and keep the bag in an area where the peanut butter will not be exposed to extreme temperatures; this can be the refrigerator (not the freezer) or a cupboard. Marler Clark is in the process of retaining a private lab, where we will send the peanut butter for testing.

  • Please also immediately notify your county’s health department of the fact that you have suffered a gastrointestinal illness after eating peanut butter that is subject to the national recall. The purpose of this call is not to have the health department test the peanut butter-although that is permissible if they want to do that-but to create a record of the fact that you have reported a gastrointestinal illness possibly related to the peanut butter outbreak.
  • If the health department does want to test your peanut butter, please photograph the jar(s) before handing them over, and please write down the details of your transaction with the health department official. In other words, please memorialize all identifying information on the peanut butter jar (brand, lot number, etc.); write down the name of the health official who has taken the jar; have the health official sign the document; date the document; and sign the document yourself. Once you’ve taken these steps, it is OK to let the health official take your jar of peanut butter.