January 2008

In 1998 when I started Marler Clark, Al Gore had only recently invented the internet (only kidding).  Search Engines were new and Google was probably being run out of someone’s basement.   Because I was in the middle of many of the earliest food poisoning battles, like Jack in the Box and Odwalla, I had a lot of research collected on most of the nasty bugs that plague our food supply and the illnesses caused by contracting them.  I decided to put the research up on the internet as a way of sharing the information.  Over the years we have kept them up to date with the latest research and have now completely redesigned the look, and hopefully their usefulness.  I would love any comments.  Feel free to ad them as a link on your site.

* Campylobacter

* E. coli

* Hepatitis A

* Listeria

* Norovirus

* Salmonella

* Shigella

* Foodborne Illness

* Guillain-Barre Syndrome

* Hemolytic Uremic Syndrome

* Reiter’s Syndrome

Other "bugs" of interest:

Cryptosporidium, Cyclospora, Mad Cow, Botulism and Enterobacter Sakazkii

From our Press Release:

“We have heard time and again how valuable the information provided on these sites is to parents whose children are in the hospital. When your kid is sick, you arm yourself with as much information as you can, and these sites provide a comprehensive look at these ‘bugs’ and the illnesses they cause,” commented William Marler, managing partner of Marler Clark.

The sites also provide information related to high-profile food poisoning outbreaks that have occurred in the last 15 years. “Since Marler Clark has represented victims of nearly every major foodborne illness outbreak in the last fifteen years, we felt it was important to share the details of these outbreaks with anyone doing research on a particular pathogen,” Marler continued.

Marler Clark has represented thousands of victims of foodborne illness outbreaks since the 1993 Jack in the Box E. coli outbreak. The firm has resolved $300 million worth of cases on behalf of food poisoning victims, bringing claims against such food-companies as AFG, BJ’s Wholesale Club, Blimpie’s, the Brook-Lea Country Club, Byerly’s, Cargill, Carl’s Jr., Carneco, Carrabba’s Italian Grill, Chi-Chi’s, Chili’s, China Buffet, ConAgra, Cub Foods, Dole, Emmpak, Excel, Filiberto’s, Finley School District, Friendly’s, Gate Gourmet, Gold Coast Produce, Golden Corral, Habanero’s, Harmony Farms, KFC, King Garden Restaurant, Lund’s, Malt-O-Meal, McDonalds, Natalie’s Orchid Island Juice Co., Natural Selections Foods, Odwalla, Olive Garden, Paramount Farms, Pat & Oscar’s, PM Beef Holdings, Quality Inn, Quizno’s, Regent Beverly Wilshire Hotel, Robert’s American Gourmet (Veggie Booty), Sam’s Club, San Antonio Taco, Senor Felix, Sheetz, Silver Grill Location Catering, Sizzler, Sodexho, Spokane Produce, Subway, Sun Orchard Juice Co., Supervalu, Sushi King, Susie Cantaloupe, Taco Bell, Taco John’s, Topps, United Food Group (UFG), Viva Cantaloupe, Wal-Mart, and Wendy’s.

So, first some facts:  the CDC reports that Escherichia coli O157:H7 is a leading cause of foodborne illness.  Based on a 1999 estimate, 73,000 cases of infection and 61 deaths occur in the United States each year.   The CDC found also that from 1996-2004, the incidence of E. coli O157:H7 infections decreased 42 percent.  However, 2007 started an ominous "Uptick." 

As I blogged about last year – E. coli’s comeback: What’s with that?” – in some 21 recalls, ground beef companies have recalled more than 33 million pounds of E. coli O157:H7-contaminated meat.  2008 has also seen recalls and we are not even a month into the year.  In the last year hundreds have been sickened, including dozens of children who have undergone kidney dialysis as a result, some have died. 

Why the increase in 2007 and 2008 in E. coli illnesses and recalls after years of decreases?

There are as many theories as there are authorities, researchers, and meat packers.  Some of my thoughts from December 2007 surfaced again in Phil Brasher’s article, “Scientists study possible link between ethanol byproduct and E. coli.”  A nationwide surge in beef recalls has pointed the finger at an unlikely culprit – the nation’s fuel ethanol industry.  Studies at two universities suggest that feeding cattle a byproduct of ethanol production known as distillers grains may increase levels of a deadly form of E. coli bacteria. 

It seems to be about saving or making a buck. According to the Iowa Cattlemen’s Association, cattlemen pay $35 a ton for distillers grains, the equivalent of $2.85 a bushel for corn.  In Iowa corn has been selling for more than $4 a bushel.  It takes about 33 bushels to make a ton.  It takes the equivalent of 70 bushels of corn to fatten a steer.  So if I did my math correct, if you feed a steer corn, it costs about $132 to fatten it; if distillers grain is used, $75. Hmmmm, I wonder if that has anything to do with it.  It will be interesting to see the cattlemen explain that to a jury in an E. coli case.

I found some interesting quotes about the price of steers and how the costs of inputs like, corn vs distillers grain, might drive risky decisions – “In The Cattle Markets” – A weekly newsletter jointly produced by Kansas State University, University of Nebraska and Utah State University.

“Feedlots seem to be signaling that they would prefer to place feeders at heavier weights and avoid feeding that high priced corn. Fed cattle weights have also been declining since November of last year and are now below the 5-year average. That decline may also reflect a dislike for feeding high priced corn…. Packer margins have likely improved in the last few weeks but feedlots are probably losing over $100 per head on most sale lots…. Lower returns and increased risk is the current state of the industry.”

Mr. Brasher also reported that “there are other theories for the surge in recalls.  One is that the bacteria spread from steer to steer more easily last year because feedlots were muddier than usual.  Another possibility is that bacteria have evolved in a way that makes them harder to detect.  Yet another theory is that immigration raids have robbed slaughterhouses of experienced workers.”  Sound familiar?  Here were some of my thoughts on the "Uptick" from December 2007:

  • Complacency:  After five years of progress with the E. coli problem, one wonders if meat processors have consciously or unconsciously slacked off, relaxing their testing procedures so that they are less likely to detect tainted meat.
  • Better Reporting:  One of my associates believes that more doctors are more likely to recognize the symptoms of E. coli poisoning, thereby increasing the chances that an outbreak will be detected, leading to a recall.
  • Global Warming:  Too dry? One theory has it that drought through much of the southeast and southwest has led to more fecal dust wafting in the breezes through beef-slaughtering plants, creating new avenues for beef to become tainted. How’s that make you feel about that ground sirloin? Too wet? This theory focuses on excessive rainfall in other regions, which leads to muddy pens that serve as an ideal vehicle for E. coli at meat-processing plants.
  • High oil prices:  They get blamed for everything else, so why not food-poisoning? The theory is that $3 gas has fueled the growth of ethanol plants. Those plants tend to be built next to feedlots, because the plants produce a byproduct called distiller’s grains, which serves as an excellent feed for livestock. Problem is, according to research at Kansas State University, the distillers grain also increases the incidence of E. coli in the hindguts of cattle.
  • Illegal Immigration:  Wait, perhaps not. The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country last fall. Some now are hiring men from homeless missions and providing free transportation to many of them. Hmmm, a influx of unskilled, but US workers, with no experience and high turnover.
  • The Darwinian explanation:  Another theory has it that previous interventions – from Jack in the Box to Odwalla and ConAgra – have forced the E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.

Josh Funk, from ground zero of the E. coli wars, AP Omaha, wrote yesterday, “Government scientists working to unlock secrets of E. Coli.” I loved the quote from Mohammad Koohmaraie, director of the U.S. Meat Animal Reseach Center: "Our purpose is to save little kids’ lives."  I could not agree more.  As Mr. Brasher also reported:

A Seattle law firm wants to find out if ground beef is being contaminated with harmful strains of E. coli bacteria that federal inspectors don’t look for. The firm of Marler and Clark, which specializes in litigating cases involving food-borne illnesses, recently announced plans to test 5,000 beef samples over the course of a year. Samples that test positive will be turned over to the federal Centers for Disease Control and Prevention, the firm said. The government and beef industry have focused their testing on a single strain of E. coli known as O157:H7. Richard Raymond, the U.S. Department of Agriculture’s undersecretary for food safety, said he supported the law firm’s testing plan. He said the department could not afford to do its own testing for alternative E. coli strains.

Helen Altonn of the Hawaii Star Bulletin profiled crack Epidemiologist, Dr. Paul Effler, as he helped break the outbreak of a rare type of salmonella poisoning on Oahu that is linked to similar cases on the mainland. The case was cracked through the use of "genetic fingerprints" of the bacteria’s DNA. According to the Bulletin, the illnesses are due to frozen ahi imported and distributed to Hawaii and other places, said Dr. Paul Effler, state epidemiologist.

About 30 cases have been confirmed on Oahu since October, said Janice Okubo, state Health Department spokeswoman. Five people were hospitalized but have been released, she said. " The unusual culprit is known as salmonella Paratyphi B. Because it is rare "doesn’t necessarily mean it’s serious," Effler said. "It’s just more uncommon."

I am speaking in Hawaii in February in part to the Health Department and to Hawaii businesses.  I am glad that Dr. Effler has made my sushi eating a bit safer.

My insomnia got the better of me this morning.  So, as I cruised the Internet for tidbits on food poisoning I found a few interesting morsels.  Lately I have been obsessing about how the safety of raw milk has become so tied up with anti-big Ag, save the family farm and the un-verified health benefits. I found an article about Schlittler Farm (hmm, odd name for a raw milk seller) on the pages of farmers-friend.com:

Currently the only documented producers of raw milk in Northeastern Pennsylvania, the Schlittlers are tapping into a continually growing anti-pasteurization subculture. Some raw milk enthusiasts drink it because they believe it’s healthier than processed milk, capable of improving one’s immune and digestive systems. Some can’t get enough of the taste, which tends to be sweeter and creamier than pasteurized. Others see it as a benefit to small farms and the environment.

With this mindset comes some risk, as raw milk has the potential to carry harmful bacteria that pasteurization destroys, including E. coli, listeria and salmonella. (Proponents of raw milk claim pasteurization also kill beneficial bacteria, proteins and enzymes.) Under state law, farms like the Schlittlers’ must submit themselves to quarterly inspections by the Department of Agriculture, and, on an annual basis, have their milk tested for four pathogens (salmonella, E. coli 0157:H7, Listeria and campylobacter) and their cows checked for tuberculosis and brucellosis.

In addition, the Schlittlers pay a laboratory to test their milk for bacteria twice a month. They’re also required to keep a sign posted in their barn that advises customers on the possible perils of drinking raw milk, stressing pregnant women, children, the elderly and people with weak immune systems are the most susceptible.

Finishing up the article on how to save the Schlittler family farm by selling raw milk (beside changing the name), I then stumbled upon another odd name tied to a food product, “Company recalls yellow croaker products” due to possible botulism contamination. Ok, how many of you knew that a croaker was not something that happened AFTER you ate something with possible botulism contamination? Seriously though:

Seoul Shik Poom Inc. of Hillside, is recalling the products because they have the potential to be contaminated with Clostridium botulinum, a bacterium that can cause life-threatening illness or death.  The yellow croaker products were distributed in New Jersey, New York and Maryland through retail stores. This product comes in a clear plastic bag and is individually tied.

BG1103 Salted Yellow Croaker (bag) 2.2 lbs
BG1121B Dried Yellow Croaker (bag) 4.5 lbs
BG1121 Dried Yellow Croaker (bag) 2.2 lbs
BG1122B Dried Yellow Croaker (bag) 4.5 lbs
BG1124 Yellow Croaker (bulk box) 29.73 lbs
BG1124A Yellow Croaker (bulk box) 31.6 lbs
BG1123 Yellow Croaker (bulk box) 30.83 lbs

Multistate Outbreak of Human Salmonella Infections Associated with Exposure to Turtles — United States, 2007–2008

As of January 18, 2008, a total of 103 cases with isolates indistinguishable from the outbreak strain had been reported to CDC from 33 states. Of the 100 patients for whom age information was available (median age: 7.5 years; range: <1–87 years), 56 (56%) were aged <10 years. Fifty-two (51%) of the 101 patients for whom the sex was known were female. Illness onset dates ranged from May 4, 2007, to December 15, 2007. Among the 78 patients for whom clinical information was available, 51 (65%) reported bloody diarrhea, with a median duration of illness of 7 days; 24 (30%) of the 80 patients for whom hospitalization status was known were hospitalized for their illnesses, with a median duration of 4 days. Among the 80 patients questioned about turtle exposure, 47 (59%) reported turtle exposure during the 7 days before illness onset. No deaths were reported.

Wait a second, didn’t the CDC publish another MMWR report of illness traced to turtles that came from Texas, Alabama, Arizona, California, Florida, Massachusetts, Nevada, New Mexico, New York, Pennsylvania and South Carolina last year too?  According to the CDC, other reptiles and amphibians have been linked to illnesses as well.  I guess no kissing the frog to figure out if it is really a prince.

In July of last year I blogged about – “Salmonella Death in Florida – Turtles to blame – Again”

It what must rank up there with one of the more stupid moves by Congress (I know there are many), on May 2, 2007, according to Senator Mary Landrieu, “in A 93-1 vote, the United States Senate today passed S. 1082, the Food and Drug Administration (FDA) Revitalization Act, which includes a key amendment offered by Senator Landrieu, that would lift the current ban on the sale of baby turtles in the United States.” The Senator goes on to say:

"My amendment frees Louisiana’s turtle farmers from outdated FDA regulations that have crippled them for more than 30 years," Senator Landrieu said. "This is a great success for our agriculture industry, and I am proud that I could work with the Senate leadership to get this key provision passed. I urge the House to follow the Senate and pass this legislation so that the President can sign it and our farmers can have the freedom they need to provide safe and healthy turtles to America’s children and families."

Now here is the real issue:

“There are approximately 78 turtle farmers in Louisiana, comprising a $9.4 million industry.”
Check the campaign donations.  What is Congress thinking? Might I suggest an email campaign to the good Senator? Here is her press agents email: scott_schneider@landrieu.senate.gov

From the pages of "Barfblog:"

Fifteen years ago this week, Seattle lawyer Bill Marler and Kansas State University professor Douglas Powell were drawn into the food safety arena when the Washington Department of Health announced that Jack in the Box restaurants were the source of a multi-state outbreak of E. coli O157:H7 infections. Now, the two are teaming up to further promote awareness of food safety.

Marler, who has represented thousands of victims of E. coli and other foodborne illness outbreaks since representing more than 100 victims of the Jack in the Box outbreak, has pledged to donate $25,000 to Powell’s group, the International Food Safety Network — iFSN — at Kansas State University. The group, which was formed in 1993 when Powell began researching the impact and influence of food safety information on farmers, processors, retailers, consumers and regulators, produces several electronic mailing lists to disseminate food safety information across the globe. In addition, Marler has pledged to match all other donations made to iFSN in 2008, up to $25,000.

In thanking Marler for the donation, Powell said, "All money donated to iFSN will be used to fund students in developing and carrying out a variety of projects. These will focus on the use of new media and new messages to compel individuals from farm-to-fork to take steps to reduce the incidence of foodborne illness.

"Bill Marler is an outstanding advocate for food safety and understands that microbiologically safe food just doesn’t happen," said Powell. "Any lawyer can talk the talk. Bill walks the talk."

The U.S. Centers for Disease Control and Prevention estimates that 76 million Americans get sick and 5,000 die each and every year after consuming contaminated food and water. The Jack in the Box outbreak in the Pacific Northwest, which killed four and sickened over 600, was the tipping point for American public awareness of the risks posed by dangerous microorganisms in food.

I actually did it for the t-shirts.

Advanced Strategies for Managing and Defending Food Contamination Claims

Thursday, February 28, 2008 to Friday, February 29, 2008
Millennium Resort, Scottsdale McCormick Ranch, Scottsdale, AZ, United States


2007 was the year of the recall, with E. coli contamination increasing sharply in 2007 over the previous two years. And it’s not just beef recalls and E. coli contamination that are making the news… Peanut butter, spinach, pot pies and pizza; salmonella, listeria and other toxins… All kinds of food-borne illnesses and the ensuing litigation are on the rise, as experts point fingers at increased use of offshore food sources, a largely self-regulated industry, and other factors in an attempt to explain the sudden surge. It’s clearly a critical time for food companies, and the lawyers who advise them, to get valuable, practical information to enable you to minimize the likelihood of these situations and the ensuing litigation from occurring – and to manage the litigation appropriately when it arises.

To address these growing concerns, American Conference Institute has developed this critical conference on Preventing and Managing Food-Borne Illness Litigation. For this unique event, we’ve assembled a multi disciplinary faculty of epidemiologists, microbiologists, key regulators and top litigators in the area, and an agenda that covers all the issues that arise in litigating and settling these complex cases. Get strategic and practical insights into:

*Understanding the science behind tracing and identifying a pathogen – so you can make or refute the causal link in your case

*Getting back on track with consumers after a crisis:getting out the right message

*Using Freedom of Information Act (FOIA) requests:why they are such an effective discovery tool in food borne illness cases

*Deposing food-borne illness experts: tips and techniques

*Effect of insurance coverage issues on how you proceed in a third party action

*Analysis of where plaintiffs been most successful in food-borne illness class actions and MDL proceedings

Don’t miss this unique opportunity to hear what others are doing in response to this growing, highly-specialized litigation. Get your questions answered and get valuable tips and practice points you can use in your own cases. Spaces will go quickly, so register now for this important event. We look forward to seeing you in Scottsdale in February.

To register, visit www.americanconference.com/foodlit, or call 1-888-224-2480. Hope to see you there!

I also had the chance, sitting here at the Seattle Airport on my way to a status conference in the E. coli outbreak from the summer of 2006 involving a Wendy’s restaurant in Utah, to read again the full report on the Organic Pastures raw milk outbreak from the fall of 2006. It is an interesting read. I wonder if any of the proponents of raw milk and/or the California State politicians have even read it. Here is the Link. The Summary is illuminating:

Six children had E. coli O157:H7 infections and/or HUS. The five available E. coli O157:H7 isolates had identical and unique PFGE patterns supporting a common source of exposure. Five patients consumed raw dairy products from one dairy, and one patient could have consumed raw milk from the same dairy. The environmental investigation at the dairy identified E. coli O157:H7 from three cows but the PFGE patterns of these isolates did not match that of the children. Despite not finding the outbreak strain at this dairy, the source of infection for these children was likely raw milk products produced by the dairy.

I certainly understand in the court of “raw milk public opinion,” blaming raw milk for poisoning children is considered heresy – something like burning a copy of “Fast Food Nation” or the “Omnivore’s Dilemma.” However, the bottom line in a court of law is that raw milk, organic spinach, a Big Mac or a jar of Peter Pan are all treated equally.