November 2009

According to the ABA Journal – These are the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal. 

The ABA’s readers clued them in to a few law blogs they had never seen before, and you’ll find them among the 40 blawgs that are new to the list this year.

For a list of all 100 blawgs, complete with their companion Twitter feeds and extra quick takes, click hereTo vote, click here then go to practice specific. 

Here is the ABA Journal description of

Marler Blog is the flagship of Seattle lawyer Bill Marler’s fleet of 10 blogs devoted to food-borne illness. It covers reports of outbreaks and adds commentary on how governments and corporations should respond to them.

Twitter: @bmarler

Quick Take: Marler took his show on the road, appearing on Larry King Live in October as an expert on food-borne illness.

Consumer Reports published – How safe is that chicken?

Among the findings:

Campylobacter was in 62 percent of the chickens, salmonella was in 14 percent, and both bacteria were in 9 percent. Only 34 percent of the birds were clear of both pathogens. That’s double the percentage of clean birds we found in our 2007 report but far less than the 51 percent in our 2003 report.

• Among the cleanest overall were air-chilled broilers. About 40 percent harbored one or both pathogens. Eight Bell & Evans organic broilers, which are air chilled, were free of both, but our sample was too small to determine that all Bell & Evans broilers would be.

• Store-brand organic chickens had no salmonella at all, showing that it’s possible for chicken to arrive in stores without that bacterium riding along. But as our tests showed, banishing one bug doesn’t mean banishing both: 57 percent of those birds harbored campylobacter.

• The cleanest name-brand chickens were Perdue’s: 56 percent were free of both pathogens. This is the first time since we began testing chicken that one major brand has fared significantly better than others across the board.

• Most contaminated were Tyson and Foster Farms chickens. More than 80 percent tested positive for one or both pathogens.

Among all brands and types of broilers tested, 68 percent of the salmonella and 60 percent of the campylobacter organisms we analyzed showed resistance to one or more antibiotics.

Not too surprisingly the National Chicken Council took exception to the Consumer Reports article:

"Chicken is safe. Like all fresh foods, raw chicken may have some microorganisms present, but these are destroyed by the heat of normal cooking. Consumers are encouraged to follow the safe handling and cooking instructions printed on every package of fresh meat and poultry sold in this country.

"A much more comprehensive survey by the U.S. Department of Agriculture found Salmonella and Campylobacter on fewer raw chickens than Consumer Reports. More important is the fact that USDA found that the levels of microorganisms present are usually very low. Consumer Reports failed to perform this analysis. The USDA survey also showed that poultry processing greatly improves the microbiological profile of raw chickens. In fact, the industry does an excellent job in providing safe, wholesome food to American consumers."

The Chicken Council’s defense – chicken is not as bacteria-contaminated as Consumer Reports says and its the consumers fault anyway.  Really, is there any wonder why we do not make more progress on food safety?

The New York Times reporter, Edward Wong, reported a few hours ago that a hearing began Friday (our Thursday) in the first civil suit to be heard in a Chinese court involving parents suing a dairy company and a supermarket over selling tainted milk.

In 2008 at least six children died and 300,000 were sickened from drinking melamine-tainted milk products. The melamine had been added by middlemen to make the dairy products falsely appear to meet nutritional protein standards.

Ma Xuexin, who said his 20-month-old son got a kidney stone from drinking tainted milk, filed a lawsuit seeking the equivalent of $8,080 (US) in compensation from the dairy company, the Sanlu Group, and Longhua, a supermarket chain based in Beijing.

Can you imagine what that number would be before a jury in a United State’s courtroom?

Perhaps the demand to the court was low by US standards, but the arguments of the defense lawyers sounded a bit familiar.  Sanlu and Longhua lawyers argued that a government fund (low compensation) was the family’s only recourse, and they also argued that there were no medical records linking the boy’s kidney problems to drinking tainted milk.  Arguing no damages and no causation, a US defense lawyer’s stock in trade. Who said that the Chinese court system is not paying attention to what is happening across the Pacific and a day behind?

A friend sent me the below YouTube videos of Larry King’s visit with me and the mothers, and one grandmother, of children killed from eating E. coli O157:H7-tainted hamburger that ran last month.  This first video – the first ten minutes of the show – it then got a bit off-track as the hour went along.  My friend sent me the second video because it has Larry mangling the word E. coli several different times – that clip ran on David Letterman, John Stewart, Jimmy Kimmel, etc.  However, despite the humor of Larry in the second video, the first video underscore why government, industry and consumers need to fight to prevent these needless deaths.


I took the time today to read the Seattle Times article by Maureen O’Hagan, “Seattle lawyer turns into healthy food crusader,” and I was struck by a discussion I had with the reporter:

Marler, … says he and his firm, Marler Clark, have pried $500 million in settlements out of companies that have sickened customers. The vast majority of the firm’s cases settle. "We have a lot of big cases, $7 (million) to $10 million cases," Marler said. "People don’t just give you that kind of money unless you have your foot on their throat."

I won’t say that she did not believe that we had reached $500,000,000 in settlements in the last ten years, but she was skeptical. And, who could blame her. I mean, no matter how hard you look, you will find only one verdict (Finley E. coli O157:H7 Outbreak) and only a few settlements – Jack in the Box’s $15,600,000 settlement with Brianne Kiner, Odwalla’s $12,000,000 – $15,000,000 E. coli O157:H7 settlement, and a $11,000,000 E. coli O157:H7 settlement with BJ’s. Those settlement amounts only became public in part because of mistakes – the defense lawyer failed to seal the BJ’s court file and it appears that Odwalla leaked the settlement despite the parents of the children wanting the settlements to be confidential. The Kiner settlement was different – both sides, the Kiners and Jack in the Box, wanted the settlement to be public.

So, no wonder that Ms. O’Hagan questioned the settlement total. All three settlements that you can find, Kiner, Odwalla and BJ’s, were the exception to the general rule of confidentiality.

The “bottom line” is that defendants (a.k.a., companies that poison customers) and their insurers want confidentiality. Why? What food company really wants to admit that it paid money for poisoning someone? And, what insurance company wants to admit it paid any money at all to anyone at anytime?

As for victims, many agree to the defendant’s desire for confidentiality to get the money that is rightfully theirs for compensation for injuries, while others simply feel that the public does not need to know the amount of the settlement – in essence, a right to privacy.

The reality is that nearly all of the settlement agreements today contain a provision like:

Confidentiality. In further consideration of the payment to be made by Releasee, Releasors and their attorneys, including all individuals employed by or with the Releasors and/or their attorneys agree and represent that the existence of this Agreement, the Agreement itself, the terms of the Agreement, and the allegations of the complaint, are and shall remain confidential. Except as permitted below, Releasors and their attorneys agree that they will not disclose and have not in the past disclosed this Agreement or the contents thereof to any person, organization and/or entity, and will use their best efforts to insure that any such person who is permitted knowledge of the terms of this Agreement, will not violate the letter or spirit of this Agreement and the confidentiality provisions contained herein.

As I said, injured plaintiffs may desire privacy and therefore find confidentiality of settlements – especially for their children – beneficial. Defendants and insurers clearly benefit from secret settlements by both keeping, if they paid, and how much they paid, confidential.

However, does the public as a whole suffer from these confidential settlements?

What if a food company repeatedly causes harm and then covers up, not only the amount of the settlement, but also the cause of the outbreak, through a confidential settlement? And, how does the public benefit from allowing settlements by insurance companies to be secret – especially given that taxpayers have bailed several of these companies out?

However, what if each settlement amount was transparent? What if the media reported on the settlement? What if the public knew about the number of settlements and the amounts? Would it change legislator behavior? Would it change regulatory behavior? Would it change consumer-purchasing behavior? Would it change a companies investment it food safety?

I fear that as long as settlements are confidential we really will never know. Perhaps it is time for transparency?  From here on out, I will only agree to confidential settlements if the clients demand it.

State health departments, CDC, and the United States Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) are investigating a multi-state outbreak of Escherichia coli O157:H7 infections. On October 31, 2009, FSIS issued a notice about a recall of approximately 545,699 pounds of ground beef products from Fairbank Farms that may be contaminated with E. coli O157:H7. Health officials in several states who were investigating a cluster of E. coli O157:H7 illnesses, with isolates that match by “DNA fingerprinting” analyses, found that most ill persons had consumed ground beef, with several purchasing the same or similar product from a common retail chain. A number of the illnesses appear to be associated with products subject to these recalls. Two samples from opened packages of ground beef recovered from a patient’s homes were tested by the Massachusetts and Connecticut Departments of Health and yielded an E. coli O157:H7 isolates that matched the patient isolates by DNA analysis.

The cluster includes 26 persons from 8 states infected with matching strains of E. coli O157:H7. The number of ill persons identified in each state is as follows: California (1), Connecticut (6), Massachusetts (8), Maryland (1), Maine (4), New Hampshire (4), New York (1), and Vermont (1). Of these, the genetic associations of 24 human isolates and both of the product isolates have been confirmed by an advanced secondary DNA test; secondary tests are pending on others. Depending on the results of continuing laboratory testing and ongoing case finding, the number of persons determined to be in this cluster may increase or decrease.

The first reported illness began on September 17, 2009, and the last began on November 6, 2009. Nineteen patients are reported to have been hospitalized and 5 developed a type of kidney failure called hemolytic uremic syndrome (HUS). Two deaths have been reported. Fifty percent of patients are male and 38% are less than 18 years old (range 1 to 88 years).

Most of the beef packages in the recall bear the establishment number "Est. 492" inside the USDA mark of inspection and have identifying package dates of "091409", "091509" or "091609". Consumers are urged to check their refrigerators and freezers for beef products produced by this firm and purchased on or after September 15, 2009 and discard or return the recalled beef products to the place of purchase for a refund. Customers with questions about the source of a package of beef should contact the place where they purchased it (e.g., grocery store, club store, or meat market).

The big news in China after I got home from this year’s China Food Safety Conference is "Pair Executed Over China Tainted Baby Milk" that is running in paper’s around the world this morning (not actual photo):

Two men have been executed for their part in China’s tainted milk scandal. Both men faced a firing squad for their part in producing and selling contaminated milk that left tens of thousands of babies sick and six babies dead.

The milk was contaminated with melamine, which can cause kidney failure and kidney stones.  Melamine is an industrial chemical used in the manufacture of plastics and fertilizers. When added to the watered-down milk it gave a false protein level which fooled local safety inspectors testing for protein levels.

Many Chinese are suspicious that the tainted milk scandal was covered up by companies in the months prior to the Olympic Games in August 2008. Warnings from parents and doctors were ignored, they say.

Geng Jinping and Zhang Yujun were executed with a bullet to the back of the neck. Geng, who managed a milk production centre in Hebei Province, was sentenced to death last year for selling hundreds of tons of tainted milk. Zhang, a cattle farmer, was given the death penalty for producing the so-called "protein powder" containing Melamine. Tia Wenhau, a 66-year-old woman, was given a life sentence at the trial. She was the highest ranking executive charged in the food safety scandal.  The harsh sentences are an indication of China’s determination to crack down hard on those involved in food safety issues.

The milk scandal was one of China’s worst food safety blunders and was a cause of huge embarrassment to the Chinese government, breaking just after the euphoria of the summer Olympics last year. Hundreds of families whose children were sickened tried to sue the milk-producing companies. But the government offered one-time payouts using money from the dairies, which prevents families suing for more unless they can prove they were forced into the plan.

I do not agree with the death penalty.  You have too wonder, however, if you changed the story above slightly by adding the very long list of names of US food poisoning outbreaks, US corporate executives, US food safety government officials and US citizens and had the same outcome, if we all would view food safety slightly differently? 

Plug in this year’s Salmonella outbreak in the United States caused by Stewart Parnell and the Peanut Corporation of America (PCA), the FDA, the 700 sickened and at least 9 deaths and the PCA bankruptcy – you get the point.

"There’s plenty of people in the meat industry who, if they looked in the rearview mirror and saw they accidentally ran over Bill Marler, they’d put the car in reverse and make sure," said David Theno, a food-safety expert hired to revamp Jack in the Box after the outbreak.

Theno, it should be noted, considers Marler a friend.

Here in Seattle we are down to one major daily, and every once in awhile they step up and do an interesting article or two.  In the Pacific Northwest weekend magazine published by the Times is an article, "The Green Issue:  Our Food, Ourselves," which I can not seem to find online.  There are a few other articles this morning that I found a passing interest:

Food-safety lawyer’s wish: Put me out of business

Sprouts, raw fish on attorney’s ‘do not eat’ list

I love the comments.