February 2008

The Associated Press story caught my eye – “Several sick with E-Coli after "Beast Feast" at Mobile church.”

Several people, including a 7-year-old boy, have been hospitalized when they became sick with E. coli after eating food at a cookout known as the "Beast Feast" at a Fairhope church. As many as 20 others reported becoming ill after the cookout and potluck meal that was attended by 300 people on February 16. Eight stool cultures have tested positive for E. coli O157:H7.

I am at the Food-Borne Illness Litigation Conference being sponsored by the American Conference Institute.  So far the conference has been very informative.  Here is the description of the conference:

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

Well, I landed in Washington DC at about 2:00 AM this morning after testifying in Sacramento on Monday.  The hearing this morning in front of House Energy and Commerce went well.  I think if you poke around on the committee’s website you can find the video of the hearing.  Here is some news coverage of my tour:

Frankly, I am beat, so I simply lifted from the Seattle PI Blog what they lifted from my testimony today:

Salmonella, E. Coli and now 144 million pounds of unfit-to-eat beef, spark anger on Capitol Hill

The House Subcommittee on Oversight and Investigations, trying to find an answer to the growing reports of tainted and deadly food, found themselves dealing with a full plate of potentially lethal problems today.

E. coli in bagged spinach sickened 204 people and killed three.

Salmonella found in tomatoes sickened 183 people.

Lettuce contaminated with E. coli at Taco Bell and Taco John restaurants sickened 152 people.

Peter Pan peanut butter contaminated with Salmonella sickened 425 people.

100 brands of tainted pet food were recalled after sickening and killing thousands of pets.

A nationwide recall of fresh spinach occurred following discovery of salmonella in a test batch.

Frozen pot pies carrying salmonella were recalled after illnesses were reported in 31 States.

And, of course, the nearly 144 million pounds of beef were recalled by Westland/Hallmark Meat Packing Company after being determined to be unfit for human consumption.

Lawmakers heard testimony from representative of the nation’s largest food producers and a Seattle lawyer who has handled hundreds of victims of a broken food safety system.

"It is clear our regulatory system is broken. I urge industry to provide serious recommendations and, more importantly, strongly support legislation that will ensure food safety. The time has passed for half measures or asking regulators to do more with less. Our health is at stake," said Rep. John Dingell, the Chairman of the Committee on Energy and Commerce.

Seattle lawyer William Marler gave the lawmaker an up close and personal view of many victims of food poisoning that he had encountered.

Marler, who has been involved in food safety litigation since the ’70s, offered the committee specific recommendation on how the nation’s food safety system should be improved.

Create a local, state and national public health system that catches outbreaks before they balloon into a personal and business catastrophe, he said. He explained that everyone believed that the Jack in the Box outbreak that killed four and sickened scores of others started in Seattle in January 1993. But he said it actually began three months earlier "when another child died and another 30 people were sickened in Southern California. He said E. coli was not a reportable illness at the time, "the death and illnesses were not recognized as an outbreak and the contaminated meat was shipped to Seattle."

He said that food must be inspected and sampled before it is consumed. He reminded the committee members that the GAO has warned in the past that our food sampling and inspection is so scattered and infrequent that there is little chance of detecting microscopic E. coli or any other pathogen for that matter.

Consumers, he said, need to know what is being recalled. Voluntary recalls don’t work.

Marler warned that turf wars and split responsibilities are gutting the effectiveness of the nation’s food safety system and the three federal agencies responsible – CDC, FDA and USDA – should have the food safety mandates merged and properly staffed and funded.

I was the first speaker today at Senator Dean Florez’s hearing into the lapses that led to the largest beef recall our nation has ever experienced. My written testimony is here.  Reports this week indicate that more than 50 million of the 143 million pounds of beef recalled were distributed to schools across the nation through a federal nutrition program, and 20 million of those were consumed by students.

The Senate Select Committee on Food-borne Illness will focus its inquiry on how California’s food safety system allowed “downer” cattle deemed “unfit for human” consumption into the food chain. Officials from the California Department of Public Health (DPH) and the California Department of Food & Agriculture will be asked to report what additional steps they are taking to prevent potentially contaminated meat from entering our food supply in the future.

The Committee will explore the roles of federal and state officials in these tasks, and what the state is doing to fill the obvious gaps in the federal system. The magnitude of the recent recall, dating all the way back to 2006, indicates that the federal inspection system has been deficient for some time.

The state’s failure to catch the misconduct over a two year period is another crucial shortcoming which must be addressed. To that end, Florez has proposed the installation of cameras in plants like Westland/Hallmark to document that cattle intended for human consumption are healthy enough to walk unaided to the slaughterhouse. Westland/Hallmark, which installed such cameras only after its plant was shut down, has declined to send a representative to Monday’s hearing.

Officials with DPH will also be asked to answer questions regarding the implementation of SB 611, which requires notification of health officials in the event of a recall.

Florez, an outspoken advocate of improved food safety precautions, has also called on the Governor to reimburse cash-strapped school districts their expenses from the recall, to be recouped from Westland/Hallmark through the efforts of California’s Attorney General.

“Schools shouldn’t have to go through a complicated process of getting reimbursed, and I hope this bill will help cut through some of the bureaucracy,” Florez said. “We are facing tough cuts as it is. Student’s educational opportunities shouldn’t be further stifled because of this company’s actions.”

The Wall Street Journal reported this morning on something that probably does not come as a surprise to those who watched the video and have seen the largest recall in US History –  Hallmark/Westland will be closing its doors.

250 workers have been laid off. On top of the horrible video and the massive recall, now the USDA said Thursday that it intends to require that Hallmark/Westland, a leading supplier to the National School Lunch Program, pay for the costs associated with destroying and replacing meat submitted to the program. In the quote that says it all:

"If the USDA wants payment back, we’re dead meat. We’re done," said Mr. Magidow, 46 years old, who has worked at the company for more than 15 years. "There’s no way we could pay it all back."

Following last years bankruptcy of Topps after a 21.7 million pound recall, and Hudson Foods closing its doors after recalling 25 million pounds of hamburger in 1997 in the largest U.S. meat recall after E. coli was found in the ground beef, it should not be a surprise that recalling 143 million pounds of meat would have some negative impact.

The downer cow problem is not new.  A 2006 audit (PDF) by the USDA’s inspector general found downer cows were still being processed for food and that USDA’s policy was inconsistent. At two of 12 plants visited from June 2004 to April 2005, downer cattle were slaughtered for food. One facility processed 27 of them, the other slaughtered two.

But, was this massive recall really necessary? Rumor has it that this massive meat recall will be expanded to food items – tomato sauce, burritos, pizzas – what else? To date, there are no ill people. Is this really necessary – especially the potential for an expanded one.  As I said in USA Today – Impact of beef recall widens; soups, sauces affected:

The breadth of affected products took even department critics by surprise. "It’s almost overkill," says William Marler, a leading plaintiff’s attorney in E. coli cases. Given the low risk, destroying so much food "is just an enormous waste of resources," he says.

"Recalls should be reserved for products that put the public at risk, and this isn’t it," Marler says.

See the below email I was inadvertently forwarded:

From: Petersen, Kenneth
Sent: Thu Feb 21 17:36:43 2008
Subject: FW: Hallmark Recall follow up
This information was also shared with DMs.
Just confirming some notes I made on our earlier discussion re: Hallmark Recall. We are effecting the recall in accordance with Directive 8080.1.

1. As Alameda District indicated on the call, by now, the primary consignees of Hallmark have been notified of the recalled products that they received. Alameda will be verifying with Hallmark that such notification has actually occurred. District Offices should be promptly deploying appropriate personnel to verify that these firms have notified their consignees, controlled available product on premise, and collect any subsequent distribution information. Promptly notify Alameda DRO of subsequent distribution locations
2. Firms with large distribution should focus their initial notification on products produced since, approximately, July 1, 2007.
3. Firms with receipt of Hallmark product or distribution that pre-dates July 1, 2007, may request a reasonable time to gather that information. Reasonable would be up to 7 calendar days.
4. Firms, at any level of distribution, are not expected to notify consignees if the distributed products from that firm have a documented use by date that has expired. Products with recently expired use by dates, such as those within the last 30 days, will necessitate supporting documentation to substantiate the lack of consignee notification. For products without a use by date, supporting decision-making documentation, such as customer use practices, or consignee throughput, may also be used to support industry notification decisions. Inspection personnel will verify acceptable decision-making associated with consignee notification.
5. In accordance with 8080.1, down stream consignees are to follow the notification from the supplying firm.
6. Firms that believe their final product formulation contains an "infinitesimal" quantity of the product associated with the recall may submit a justification to the district manager to support that decision. Small measurable quantities (e.g., 0.5%) would not be considered "infinitesimal".

All for a Class Two Recall.  Hmmm, what’s really going on here?

A report by food safety investigators have linked a Kern County farm with an E. coli outbreak in 2006 that sickened dozens of people in the Midwest.  Officials from the California Department of Health and the Food and Drug Administration reported that tainted lettuce served at Taco John’s restaurants in Iowa and Minnesota came from Wegis Ranch in Buttonwillow.  More than 80 people became sick with E. coli infections after eating the lettuce.  Investigators said they found positive samples of E. coli at Wegis Ranch and at two neighboring dairies.  See more from the Bakersfield Californian.

I spoke with Julie Schmit of USA TODAY during a layover in Dallas on my way home about her story this morning “Feds still tracing millions of pounds of recalled meat.” She reported that: “Federal officials said Thursday that more than a third of the meat recalled Sunday in the largest meat recall ever went to federal nutrition programs, and that 15.5 million pounds of that are still being traced. About 50.3 million of the 143 million pounds of meat recalled by Westland/Hallmark Meat were sold to federal programs, including the school lunch program. Of that, 19.6 million pounds were consumed and 15.2 million pounds have been found, the U.S. Department of Agriculture said.” Although the size of the recall matters, here is the shocking part:

The department also said that all products that contained any of the recalled meat should not be consumed. That could include many more millions of pounds of product, ranging from spaghetti sauce to canned ravioli.

As I told her, extending the recall to include comingled and finished products is unheard of given no reports of illness and no hard evidence that the abused cattle were suffering from “Mad Cow” – cautious and safe, but unheard of.

"It’s really unprecedented given what appears to be no illnesses and an exceedingly low risk," said William Marler, a prominent plaintiff’s attorney.

Still going after the small fish?

The Associated Press reported this evening that a second fired worker has been arrested in a case involving alleged abuses at a Chino slaughterhouse that led to the nation’s largest beef recall. Luis Sanchez surrendered to Chino police Wednesday and pleaded not guilty Thursday to three misdemeanors involving the illegal movement of sick or injured cattle. Prosecutors say he remains in custody in lieu of $15,000 bail and is scheduled for a pretrial hearing next week.  An arrest warrant was issued Friday for Sanchez and his Westland/Hallmark Meat Company co-worker Daniel Ugarte Navarro. Navarro was taken into custody previously and released on bail. He faces five felony counts of animal abuse in addition to three misdemeanors.

I say what these two workers did (caught on tape) was horrible. But come on, who believes that they abused these animals on their own? What gain do they personally have? What they did was wrong, but who told them to do it?

As a human (yes, lawyers are), I was appalled by the treatment of the “downer” cows caught on film. The outpouring of emotional comments on my blog over the last week should make government and the beef industry to take a hard look at what they are doing to ensure both a safe and humane beef supply.

Although there are no reported illnesses from E. coli or Salmonella, and the risk of developing "Mad Cow" is thirty years away (and an extremely low risk at that), what has happened is a mess – a very large one.  Learning today according to the AP, that “more than a third of the 143 million pounds of California beef recalled last week went to school lunch programs, with at least… 20 million pounds… eaten, 15 million pounds… on hold at storage facilities and 15 million pounds… still being traced,” should be concerning to everyone. Perhaps this is a good time to look at a little bit of history of problems with school lunches.

Congress created the NSLP over 50 years ago, as a measure of national security, to safeguard the health and well being of the Nation’s children. It was a direct response to the fact that many of the young men responding to the draft call in WWII were rejected due to conditions arising from serious nutritional deficiencies. The 1946 National School Lunch Act was enacted to provide the opportunity for children across the United States to receive at least one healthy meal every school day. It is presently an $8 billion program.

The NSLP provides per meal cash reimbursements as entitlements to schools to provide nutritious meals to children. The NSLP provides school children with one-third or more of their Recommended Dietary Allowance (RDA) for key nutrients. United States Department of Agriculture (USDA) research indicates that children who participate in school lunch have superior nutritional intakes compared to those who do not.

The NSLP provided meals to 26.1 million children in 1998. More than 15 million low-income children receive free or reduced-price school lunches daily. Over 93,000 schools currently participate in the NSLP. About 95 percent of all elementary and secondary school students are enrolled in participating schools.

The USDA spends over $200 million annually buying over 200 million pounds of meat through its commodities program to supply, in part, the NSLP and to support food prices when the market has gone soft. An arm of USDA, Food Safety and Inspection Services (FSIS), has the responsibility of inspecting plants that supply meat to the NSLP and the public at large.

In most States, the meat is distributed by the USDA to the Superintendent of Public Education (SPI) through the Child Nutrition Program (CNP), at no cost to school districts throughout the state.

Overview of Media Attention to Illnesses Related to School Lunches through 2004

Continue Reading Westland and Hallmark Recalled Beef Went to Schools

Although I am down in the “Big Easy” at the GMA’s 2008 Food Claims and Litigation Conference, I still had the time to edit and file what appears to be the second lawsuit against Castleberry’s for producing Botulism contaminated food.

According to the CDC, as of August 24, 2007, eight cases of botulism have been reported from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). The illness onset dates range from June 29 to August 7, 2007. All eight persons were reported to have consumed hot dog chili sauce made by Castleberry’s Food Company.  In July 2007, the U.S. Food and Drug Administration facilitated the recall of 721,239 pounds of canned meat that were identified as possibly carrying the botulinum toxin as the result of an equipment malfunction, according to the USDA. The equipment malfunction was discovered during an investigation into an outbreak of illness in Indiana and Texas. Since then, the recall has been expanded to 10 million pounds of product coming out of the faulty Augusta, Ga., facility.

Botulism is a rare but serious paralytic illness caused by a nerve toxin that is produced by the bacterium Clostridium botulinum. Clostridium botulinum is the name of a group of bacteria commonly found in soil. It is an anaerobic, gram-positive, spore-forming rod that produces a potent neurotoxin. These rod-shaped organisms grow best in low oxygen conditions. The bacteria form spores, which allow them to survive in a dormant state until exposed to conditions that can support their growth.

Some of the coverage of the filings underscores how dangerous Botulism can be. Cory Frolik’s article in the Sandusky Register – "Federal suit filed over tainted food"

Carl Ours Jr. won’t be eating Castleberry Food Co.’s chili again.

"He was in bad shape ," said his 72-year-old father, Carl Ours Sr. of Norwalk. "It was a life-or-death thing….” The elder Ours described his son’s trauma as excruciating. He said it looked for a long and bleak stretch of time that his son would die. He holds out little hope that his son will ever completely recover.