I am honored to be a speaker again this year and to lend my support to what is truly becoming one of the world best food safety conferences.  From the Conference Website:

When it comes to protecting food, good governance is good for business. For anyone committed to enhancing food safety, the 3rd annual China …

In fact, IMHO, all pathogens on meat should be considered an adulterant – but that is just me.  Denis Stearns, one of my law partners, reminded me that in 2002 we asked FSIS to consider that E. coli O157:H7 on ALL BEEF should be considered adulterated.  Click Below:

While public health investigators shake their collective heads, the cause of the E coli O157:H7 outbreak due to raw cookie dough that has now affected over 70 persons goes unrecognized. FDA has reportedly ruled out sabotage, extensive tests of ingredients did not reveal the agent, and several days of investigation reportedly turned up only minor sanitation issues. FDA was successful in isolating one strain of E coli O157:H7 from an intact package of cookie dough with a manufacture date of 4-20-09. While this isolate was not the so-called outbreak strain, at least three shiga-toxin strains (2 – O157:H7 and 1- O124) have turned up in this rather bizarre outbreak.

Water is an essential ingredient in dough, but FDA has not commented about the water quality at the facility leading to our speculation that FDA is either not testing the water or does not see its use as significant and is not reporting the findings. However, the finding of more than one E coli O157:H7 strain is clearly indicative of a highly contaminated environment reservoir, and this reservoir is likely in the plant or was during the outbreak.

If incoming materials like flour and other common ingredients were highly contaminated, it is unlikely that such broad contamination in the food supply would affect only Nestlé’s cookie dough. When salmonella for example contaminated peanut derived products the repercussions were everywhere, yet, we have not identified outbreaks of this strain of O157 in other products. This fact makes it unlikely that some common additive or ingredient is involved here.

The PFGE pattern for this strain is not an unusual or novel type. PulseNet has reported on this strain for some time. This means the strain of E coli we are seeing at Nestlé’s (or the one called the outbreak strain) is a common circulating strain. This means the environmental reservoirs have had quite a long time to establish themselves in people, cattle, birds and probably a wide assortment of other vectors. Because of these features, water, especially surface water that has had multiple exposures to sewage and farming operations would fit the bill as the vehicle in this case.Continue Reading Guest Blogger Roy E. Costa – “A Sanitary Survey of Nestl√©’s… Quick”

John Munsell, known to the readers of Mother Jones as – “Meatpacking Maverick – Montana meatpacker John Munsell’s against-the-odds struggle for improved food safety” – by Michael Scherer, and to the readers of Marler Blog, one of its most consistent commentators.  John is an unlikely American Hero.

I met John – well talked to him in the early spring of 2002. I had been blitzing the USDA and FSIS with Freedom of Information Act requests (FOIA’s) about all of their E. coli O157:H7 recalls in 2001 into 2002. Because that information was not readily available to the pubic (and many health departments) I posted it on www.fsis-pfge.org – and still do. In my sweep of all recalls I received the information about a very small recall (270 pounds), with no reported illnesses, from Munsell’s and his father’s Montana Quality Foods of Miles City Montana. I paid it no mind until John’s call.

I now remember the call like it was yesterday. I was sitting in my corner office high above the Seattle skyline. John’s call came in and the first thing he asked was “did my product hurt anyone?” A bit taken aback – because an owner of a business was calling me directly (I usually hear from some lawyer) – I answered, “No, I am not aware of any reported illnesses.”

John then told me his story – much better told by Mr. Scherer below. But, the thing I recall the most is when he said, “Mr. Marler, the E. coli contaminated meat came from ConAgra’s Greely plant. It was contaminated before it came to us.” He then said, “USDA is after me when they should be paying attention to ConAgra before something happens.” He offered to send me documents proving that the contaminated meat was really ConAgra’s. I said sure.

A few days later I got a pile of documents as John promissed. I set them on a table in my office. John called a few times more that spring, but I ignored him – and his documents.

Months later, I was driving back from a family vacation on July 5, with my seven-year-old asleep in the car when my cell phone rang. It was counsel for ConAgra. You see (although I did not know it then) on June 30, 2002, the USDA Food Safety and Inspection Service (FSIS) announced the recall of 354,200 pounds of ground beef manufactured at the ConAgra Beef Company plant in Greeley, Colorado. He asked if ConAgra could retain my firm to represent them in a “bit of an E. coli problem.” I said, “Thanks for the offer, but let me check to see if we are already representing victims.”

Both a bit stunned by the call from ConAgra and missing the recall, I called the office and found that we had already been called by a family whose young daughter was still hospitalized struggling against E. coli O157:H7 induced Hemolytic Uremic Syndrome.  I declined ConAgra’s offer.

I then remembered John Munsell’s call and the documents still sitting in my office that I, like the USDA and FSIS, had ignored.

By July 12, the Colorado Department of Public Health and Environment (CDPHE) disclosed that 17 Colorado residents had been infected with E. coli O157:H7. Several other cases were subsequently reported in neighboring states. Three days later, on July 15, the Centers for Disease Control and Prevention (CDC) announced that the strain of E. coli O157:H7 that had infected the 17 sickened individuals was genetically indistinguishable from the strain isolated from the recalled ConAgra beef. On July 19, 2002, FSIS expanded the ConAgra ground beef recall to 18.6 million pounds of ground beef. In the weeks that followed the nationwide recall, more than 45 people in 23 states reported illnesses linked to the contaminated ground beef.

Reports indicated that ConAgra received 31 violations in the 13 months before its June and July 2002 ground beef recalls, and a September 13, 2002 letter issued by the following congressional members: Representatives Mary Kaptur, Rosa DeLauro, Henry Waxman and Senator Richard Durbin demanded to know why the USDA and ConAgra had failed to alert the public to possible contamination until more than two months after they knew there was contamination at the plant. Moreover, they intimated that ConAgra hindered the USDA investigation by refusing to turn over information about its Greeley slaughterhouses. On November 15, 2002, the USDA shut down the ConAgra plant in Greeley (known as Swift and Co.), due to repeated failures to prevent fecal contamination of carcasses. The plant has since reopened.

I eventually represented most of the victims of the E. coli outbreak, which led to at least 46 illnesses and one death. Among the victims were an Ohio childcare worker, a Colorado security officer who was battling forest fires, and young children in Colorado, Nebraska, and South Dakota. Several of them were hospitalized with hemolytic uremic syndrome, a frightening complication of E. coli O157:H7 infection that can lead to kidney failure and neurological impairment.

John, I am sorry that I did not pay attention to you when you called and do something to avoid the outbreak. I think about this everyday.

Months into the outbreak I met with John, his dad and John’s wife.  I flew into Rapid City, South Dakota and drove through Sturgis, Spearfish on to Miles City, Montana.  His dad made me pancakes along with what was left of his crew.  John cooked a great steak that night.  He said the prayer over dinner.

For lawyer readers, see the Trial and Appeals Court Decisions.

Read the full Mother Jones Article Below:Continue Reading One E. coli O157:H7 Outbreak I Think I could have Prevented