August 2009

"People just don’t really understand how horrible food-borne illness is," said William Marler, a prominent Seattle-based food-safety lawyer who is representing the Rivera family and 23 other victims in the cookie dough outbreak. "They think food-borne illness is a tummy ache and diarrhea."

I was much younger when Martin Luther King gave his famous speech – “I have a dream.”  But, if I could borrow that phase, I too “have a dream.”  I dream that Tuesday morning the President and House and Senate members and their staff would read Lyndsey Layton’s story – “This Woman Might Die From Eating Cookie Dough – Severe Case Gives Context to Issue of Food Safety” and get to work – really get to work.  In fact, I bet Mr. Rivera would love a call of support from the folks in Washington who could help fix this mess.  Call me and I will set it up.

I had a great talk with Tristan Baurick as he was writing “College Discourse Over Food Safety, Courtesy of Bainbridge Lawyer” – that would be me.  As I said, spending a few dollars to bring Michael Pollan to the WSU campus is worth it. It puts:

“Michael Pollan’s biting critique of industrial agriculture, “The Omnivore’s Dilemma” — into the hands of every freshman entering a university known for producing the best minds in agribusiness.”

“The book has become for food what ‘Silent Spring’ was for DDT, and what ‘An Inconvenient Truth’ was for global warming,” Marler said. “It’s helping people focus their attention on what’s happening to them, and how things need to change.”

“I may not agree with all of (Pollan’s) ideas, but I think they need to be talked about,” he said.

The main thrust of “The Omnivore’s Dilemma” — that large-scale food production and distribution are harming human and environmental health — fits with what Marler has learned though almost two decades of helping sick people sue corporations over tainted food.

“It’s a book perfectly suited for (WSU) to grapple with,” he said. “I can’t think of a better place to talk about this, and start dealing with these issues in a big way.”

Free speech is a good thing.

Summer, or at least August, is drawing to a close in the Northwest – temperatures have dropped below 100 and rain is expected. Really, no global warming?

I spent most of last week being supportive, but feeling helpless, as a client who ate E. coli O157:H7-tainted Nestle Toll House Cookie Dough, may well be slowing dying after spending over 100 days in the hospital (still there), loosing her large intestine and gall bladder and spending weeks on dialysis. It is crazy that people think a foodborne illness is a “tummy ache.”

I have a very busy September coming up. I am looking forward to mediation in a few days on the last of the 2006 Dole Spinach E. coli O157:H7 outbreak cases. This client spent 51 days hospitalized, 18 days on dialysis and incurred $500,000 in medical bills. Will Dole, Natural Selection Foods and Mission Organics play hardball with this 80ish lady? We shall see.

I then have speeches at the Arkansas Law School, in Washington DC (with some insurance executives) and then off to China too yet another food safety conference.

So, I decided to take a “break” this weekend.  I decided to get out of Seattle to focus a bit on the upcoming mediation – the travel and speeches – by spending a few days working/fly-fishing in Idaho. So, after a working/hiking/fly-fishing day, I decided to get a massage. I do not do massages – I’m just not that in to having strangers rub you for money – but that is just me. So, halfway through the massage and being naked (underneath a sheet), the lady starts telling me about the benefits of drinking raw milk.  I decided to not tell her what I did for a living. So, on too the other bad raw milk stories:

Raw Milk Sickens 13 in Wisconsin

Wisconsin state agencies are cautioning residents to discard any unpasteurized milk. Selling or distributing raw milk and its products is illegal in Wisconsin.  The state says the victims have tested positive for campylobacter jejuni. All victims had consumed raw milk or been in households where someone else consumed raw milk and became ill. Symptoms started Aug. 14 through Aug. 20.

3 Los Angeles Firms Charged with Selling Raw Milk Cheese

The Los Angeles city attorney has filed criminal charges against three local businesses for the alleged sale of dangerous, unpasteurized cheese from Mexico. The office said in a statement Thursday that it has charged El Agave Restaurant Oaxaqueno, Mario Brothers Market and Expresion Oaxaquena Market with misdemeanor violations of the Food and Agriculture Code for the sale of raw milk cheese and other unpasteurized dairy products.

Myself, along with a number of others concerned about the safety of our food supply, were recently interviewed for Eating Well Magazine.  Here is my interview:

SPECIAL REPORTS – Food Safety Expert: Bill Marler

Bill Marler is a managing partner and personal injury lawyer at Marler Clark LLP, PS, and also a national expert in foodborne illness litigation and U.S. and international food safety policy. With his partners, he represents individuals in claims against food companies whose contaminated products cause serious injury and death.

Marler began litigating foodborne illness cases in 1993, when he represented Brianne Kiner, the most seriously injured survivor of the Jack in the Box E. coli O157:H7 outbreak, resulting in her landmark $15.6 million settlement. Marler has focused his practice on representing individuals in litigation resulting from E. coli, Salmonella, Shigella, hepatitis A and other food contamination cases. 

Under the umbrella of OutBreak, the nonprofit consulting arm of Marler Clark dedicated to food safety advocacy, Marler speaks to food industry groups, fair associations, and public health groups about the litigation of claims resulting from outbreaks of pathogenic bacteria and viruses and the issues surrounding it. He keeps a blog at

What is the single most important thing that can be done (by food growers, producers, government, consumers – any, or all of the above) to improve food safety in the United States?

B.M.: Prepare food, from farm to fork, like you were preparing it for your 4-year-old child. Do it safely. 

10 Commandments of Food Safety

Bill Marler tells us whether he abides by the following food safety recommendations.

1. I use a “refrigerator thermometer” to keep my food stored at a safe temperature (below 40°F).
B.M.: Yes.

2. I always defrost food in the refrigerator, the microwave or in cold water, never on the counter.

3. I always use separate cutting boards for raw meat/poultry/fish and produce/cooked foods.
B.M.: Yes.

4. I always cook meat to proper temperatures, using a calibrated instant-read thermometer to make sure.
B.M.: Yes.

5. I avoid unpasteurized (“raw”) milk and cheeses made from unpasteurized milk that are aged less than 60 days.
B.M.: Yes!

6. I never eat “runny” eggs or foods, such as cookie dough, that contain raw eggs.
B.M.: Correct.

7. I always wash my hands in warm soapy water for at least 20 seconds before handling food and after touching raw meat, poultry or eggs.
B.M.: Yes.

8. I always heat leftover foods to 165ºF.
B.M.: Yes.

9. I never eat meat, poultry, eggs or sliced fresh fruits and vegetables that have been left out for more than 2 hours (1 hour in temperatures hotter than 90°F).
B.M.: Yes.

10. Whenever there’s a food recall, I check products stored at home to make sure they are safe.
B.M.: Yes.

Recipes can be handed down from generation to generation and so can myths surrounding food safety — sometimes with sickening consequences. September is National Food Safety Education Month and the Partnership for Food Safety Education (PFSE), in cooperation with the Food and Drug Administration, the Centers for Disease Control and Prevention, and the U.S. Department of Agriculture, is marking the occasion with an outreach to consumers aimed at debunking four common food safety myths:

* Myth: Lemon juice and salt will clean and sanitize a cutting board.

Fact: Sanitizing is the process of reducing the number of microorganisms that are on a properly cleaned surface to a safe level to reduce risk of foodborne illness. Lemon juice and salt will not do this. An effective way to sanitize cutting boards and other kitchen surfaces, is with a diluted bleach and water solution — just 1 tablespoon unscented liquid chlorine bleach (not more) to 1 gallon of water. To clean your cutting board, first wash it with hot water and soap. After rinsing it off with clean water, sanitize by letting the diluted chlorine bleach solution stand on the cutting board surface for about a minute. Rinse and blot dry with clean paper towels. It is important to clean and sanitize – just because a surface looks clean, does not mean it is free of disease-causing bacteria!

* Myth: Putting chicken in a colander and rinsing it with water will remove bacteria like Salmonella.

Fact: Rinsing chicken in a colander will not remove bacteria. In fact, it can spread raw juices around your sink, onto your countertops, and onto ready-to-eat foods. Bacteria in raw meat and poultry can only be killed when cooked to a safe minimum internal temperature, which for poultry is 165 F, as measured by a food thermometer. Save yourself the messiness of rinsing raw poultry. It is not a safety step and can cause cross-contamination.

* Myth: Once a hamburger turns brown in the middle, it is fully cooked.

Fact: You cannot use visual cues to determine whether food has been cooked to a safe minimum internal temperature. The ONLY way to know that food has been cooked to a safe minimum internal temperature is to use a food thermometer. Ground meat should be cooked to a safe minimum internal temperature of 160 F, as measured by a food thermometer.

* Myth: You should not put hot food in the refrigerator.

Fact: Hot foods can be placed directly in the refrigerator. A large pot of food like soup or stew should be divided into small portions and put in shallow containers for quicker cooling in the refrigerator. If you leave food out to cool and forget about it, then toss it! Bacteria grow rapidly in the "danger zone" between 40 F and 140 F. Always follow the "two hour rule" for cooked foods – eat them or refrigerate them within two hours at a refrigerator temperature of 40 F or below. And, if left out in a room or outdoors where the temperature is 90 F or above, food should be refrigerated or eaten within just 1 hour – or discarded.

As I wrote a year ago in a blog post, "Grass-Fed vs Grain-Fed Beef and the Holy Grail: A Literature Review," several people have commented that switching from grain to grass feeding could be one of the solutions to the problem with foodborne pathogens in cattle and other livestock. Quotes like these are becoming more common on the Internet and in recent media reports:

“Products from grass-fed animals are safer than food from conventionally-raised animals.” Eatwild, 2008.

“Research has shown that the strains of E. coli most devastating to humans are the product of feedlots, not cows. This is due to the animals being forced to eat an unnatural diet, and not their natural choice, grass.” Grass-Fed Beef: Safer and Healthier, Animal Welfare Approved, June 15, 2008.

I did an extensive literature review and simply did not find support for the belief that switching from grain to grass for cattle feed would make the world a bad place to be pathogenic E. coli. Now comes an article by S. Reinstein, J.T. Fox, X. Shi, M.J. Alam, D.G. Renter and T.G. Nagaraja. 2009, “Prevalence of Escherichia coli O157:H7 in organically and naturally raised beef cattle. Applied & Environmental Microbiology 75(16):5421-5423,” which states:

"The prevalences of E. coli O157:H7 that we observed in organically and naturally raised beef cattle were similar to the previously reported prevalence in conventionally raised cattle," the researchers said. "No major differences in antibiotic susceptibility patterns among the isolates were observed."

Now, before the internet erupts into a belief culture war between grain feeders and grass feeders, I am not saying that the cows themselves may not well be better off eating grass and roaming the range, and I am not saying that feedlots miles wide are not environmental hazards, but I think we need to face the fact that grain vs grass does not mean “E. coli.”

In my ongoing effort to understand the risk to humans of non E. coli O157:H7, this weekend I read the manuscript “Molecular Analysis of Virulence Profiles and Shiga Toxin Genes in Food-Borne Shiga Toxin-Producing Escherichia coli” by Slanec, T., Fruth, A., Creuzburg, K., and H. Schmidt from the Department of Food Microbiology, Institute of Food Science and Biotechnology, University of Hohenheim, Stuttgart, Germany. Click below to download full manuscript:

In general, the manuscript noted that Shiga toxin (Stx)-producing Escherichia coli (STEC) can cause a spectrum of human disease ranging from watery diarrhea to bloody diarrhea (hemorrhagic colitis), which can be followed by serious sequelae such as the hemolytic-uremic syndrome (HUS). STEC are genetically heterogeneous and although more than 200 STEC serotypes have been described, only a limited number of serotypes has been isolated from human cases. The most important serotypes, which can cause severe human disease, are O157:H7, O157:NM, and the non-O157 serotypes O26:H11, O111:NM, O103:H2, and O145:NM. STEC infections are mainly food-borne infections, although direct transmission from animals or from person-to-person has been described. Foods of high risk for transmission are minced meat, other meat products, produce, and dairy products.

Kim Archer of the Tulsa World has done a great job of recalling the horrors of the United States’ largest E. coli O111 outbreak.

• 341 were sickened

• 70 people were hospitalized, including 22 children

• 17 people received kidney dialysis, including eight children

• 1 man died

Excerpts from the Article about just one of the victims:

His entire life, Kenneth Birkes has worked seven days a week from dawn to dark. Then he ate a meal in honor of his father’s 85th birthday at Country Cottage in Locust Grove. It was Sunday, Aug. 17, 2008. Five days later, Birkes fell ill. The 61-year-old Grove man hasn’t worked since.

"I was up in Kansas to get a drilling rig out in the country," he said. "It hit me so quick."  He had just put the rig on a trailer and driven to the town of Edna, all the while calling his wife to tell her he needed help.

"That’s really the last thing I remember," Birkes said. His wife initially took him to a hospital in Coffeyville, Kan., but he continued to get worse. He didn’t wake up until six weeks later at St. Francis Hospital.

Birkes said he went from making $12,000 a month to nothing.

"This pretty well wiped us out," he said. After three months in the hospital, he had to learn to walk again. Now, he has migraines four days a week and is only able to go three hours at a time before needing to rest.

"I’m still alive, and that’s all that matters," Birkes said.

Birkes is among a group of clients of Seattle attorney Bill Marler asking for a settlement from the restaurant’s insurance company.

"If they turn us down, we have no choice but to sue the restaurant and the owners for the policy and all personal assets," Marler said.

Law and Politics Magazine yearly picks lawyers who are voted in by other lawyers as "Super Lawyers."  This year I actually made it on the cover when they did an issue of food poisoning litigation.  Nice to have the recognition.  Perhaps we need a magazine for "Super Clients," so we do not forget what being a trial lawyer is really all about.

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