August 2010

Our fourth food poisoning lawsuit was filed today in the enormous egg recall and Salmonella outbreak tied to two Iowa egg farms. The lawsuit was filed against Quality Egg (doing business as Wright County Egg) in the Northern District Court of Iowa, Western Division just as the FDA released its report on Wright County Egg and Hillandale Farms.

“It’s almost a given that these kind of unhygienic conditions would produce contamination and illness. I hoped I had seen the last of this kind of disregard for public safety after the peanut butter outbreak, but this manages to be even worse.”

The plaintiff, a California mother of two young children, ate a custard dessert at a graduation banquet in May 2010. A few days later, she began to suffer from severe gastrointestinal symptoms including abdominal cramps and diarrhea. Her symptoms continued to worsen, and she was admitted to the hospital, where she remained for 4 days. She was released but had to be readmitted at the end of June for another 5 days. While hospitalized, she tested positive for the outbreak strain of Salmonella enteritidis. The California Department of Health confirmed that the eggs used to make the dessert she consumed came from Wright County Egg.

“The FDA report on these farms details appalling conditions,” said food safety attorney Bill Marler. “It’s almost a given that these kind of unhygienic conditions would produce contamination and illness. I hoped I had seen the last of this kind of disregard for public safety after the peanut butter outbreak, but this manages to be even worse.”

In August 2010, Wright County Egg and Hillandale Farms together recalled 550,000,000 eggs due to contamination with Salmonella. To date, 2,403 illnesses have been confirmed in Alaska, California, Colorado, Iowa, Minnesota, Nebraska, North Carolina, Nevada, South Dakota, Texas, and Wisconsin.

And, our investigators have confirmed that the FBI has been in and around the Wright County Egg and Hillandale Farms egg factories.

As I was boarding a plane to Chicago, my inbox filled up with Wright County Egg’s and Hillandale Farm’s first every FDA inspection – the so called 483.  Here are the highlights (more like lowlights) of Wright County Egg. Frankly, it was hard to read this one.  I’ll leave Hillandale’s for another day.  If you want to read them in full, head over to the FDA Website.

• Chicken manure located in the manure pits below the egg laying operations was observed to be approximately 4 feet high to 8 feet high at the following locations: Layer 1 – House 1; Layer 3 – Houses 2, 7, 17, and 18. The outside access doors to the manure pits at these locations had been pushed out by the weight of the manure, leaving open access to wildlife or domesticated animals.

• Un-baited, unsealed holes appearing to be rodent burrows located along the second floor baseboards were observed inside Layer 1 – Houses 1-9 and 11-13; Layer 2 – Houses 7 and 11; Layer 3 – Houses 1, 3, 4, 5, and 6; Layer 4 – House 3.

• Dark liquid which appeared to be manure was observed seeping through the concrete foundation to the outside of the laying houses at the following locations: Layer 1 – Houses 1, 2, 3, 4, 5, 8, 11, 12, and 14; and Layer 3 – Houses 1, 8, 13, and 17.

• Standing water approximately 3 inches deep was observed at the southeast corner of the manure pit located inside Layer 1 – House 13.

• Un-caged birds (chickens having escaped) were observed in the egg laying operations in contact with the egg laying birds at Layer 3 – Houses 9 and 16. The un-caged birds were using the manure, which was approximately 8 feet high, to access the egg laying area.

• Layer 3 – House 11, the house entrance door to access both House 11 and 12 was blocked with excessive amounts of manure in the manure pits.

• There were between 2 to 5 live mice observed inside the egg laying Houses 1, 2, 3, 5, 7, 9, 10, 11, and 14.

• Live and dead flies too numerous to count were observed at the following locations inside the egg laying houses: Layer 1 – Houses 3, 4, 6, 8, 9, 11, and 12; Layer 2 – Houses 7 and 11; Layer 3 – Houses 3, 4, 4, 5, 7, 8, 15, 16, 17, and 18. The live flies were on and around egg belts, feed, shell eggs and walkways in the different sections of each egg laying area. In addition, live and dead maggots too numerous to count were observed on the manure pit floor located in Layer 2 – House 7.

You get the picture, read on if you wish:

Continue Reading Wright County Egg’s First ever 483 Inspection Report – It is not too Pretty

In a letter to USDA Secretary Vilsack on August 18, 2010, J. Patrick Boyle, President and CEO of AMI stated “outbreaks associated with non-O157:H7 STECs in various foods have been documented, but no reported outbreak in the U.S. has been confirmed to be directly linked to beef products.”

Screen shot 2010-08-29 at 7.45.01 PM.pngReally J. Pat?

Interestingly, The CDC estimates that “non-O157 STECs (like O26, O45, 0103, O111, O121, and O145) cause 36,700 illnesses, 1,100 hospitalizations and 30 deaths in America each year.” In speaking about the May E. coli O145 outbreak linked to romaine lettuce, Patricia M. Griffin, chief of CDC’s Enteric Diseases Epidemiology branch, said it is likely that E. coli O145 [and others have] caused previous food poisonings but has gone undetected because only about 5 percent of clinical laboratories are able to detect it. “The fact that we found it now doesn’t mean it wasn’t there before,” she said. “The ability to look for the organism in ill people and in outbreaks and food has been increasing. We’re gradually finding more of these organisms.”

She also attached a memo outlining a number of animal contact outbreaks AND an E. coli O111 outbreak in North Dakota with ground beef in 2007.

Perhaps J. Pat did not read the memo?

Although I am not much of a conspiracy theorist, you have to wonder why J. Pat did not get the heads up from FSIS that a non-O157:H7 outbreak and recall [the recent E. coli O26] were brewing before he wrote his August 18th letter?  According to last Friday night’s press release: “FSIS became aware of the problem [E. coli O26 outbreak] on August 5, 2010 when the agency was notified by the Maine Department of Agriculture, Food and Rural Resources of an E. coli O26 cluster of illnesses.”

I will leave it up to the FSIS to explain why they waited from August the 5th until midnight last Friday to inform the public (and J. Pat) of the outbreak that AMI seems to have been waiting for.

Now, J. Pat – Why does the AMI not want bacteria that can kill you to be considered “adulterants?”

FYI – I am putting this Press Release out at 6:00 AM Eastern Time Monday – “E. coli O26 Outbreak and Recall Illustrate Urgent Need for Change.”  By the way, I like J. Pat.  in 1999 he actually asked me to speak before the AMI Board of Directors (I spoke just after they all agreed to become “Pioneers” for George W. Bush – $200,000 a pop), but they have never invited me back.  Also, J. Pat and I had a civil debate about E. coli and death on Larry King Live a few months ago.

I know realistically that raising a few chickens for eggs in my backyard (presently in the guest room shower) will not change what happened over the last few weeks with the US Egg Industry.  And, I know that the eggs are not necessarily safer, but I felt I needed to do something other than sue some corporation for poisoning 1,400 people.  Plus, my 11-year-old was bugging me all last week about getting some.


The chicks were not that expensive, nor the feed.  Right now they are housed in an old Hamster cage. However, once the designer coop and the fence are built to keep out raccoons and eagles – well, I do not want to think about how much the eggs will be per dozen.


The CDC and FDA released FDA’s Form 483 reports on Hillandale Farms and Quality Egg LLC (Wright County Egg) Monday. The 483 is a standard form that FDA’s field investigators use to note what they have observed during an inspection. The form does not include the final Agency determination of the company’s compliance with the Federal Food, Drug, and Cosmetic Act, but rather, it details the observations made during the inspection by the inspection team.

Hillandale Farms, New Hampton, IA, 483 Issued 8/26/2010

Quality Egg LLC (Wright County Egg), Galt, IA, 483 Issued 8/30/2010

In light of this weekends recall by Cargill Meat Solutions of approximately 8,500 pounds of ground beef products that may be contaminated with E. coli O26, and the sickening of three people, it is time for the United States Department of Agriculture (USDA) and Food Safety and Inspection Service (FSIS) to deem another six “enterohemorrhagic (EHEC) Shiga toxin-producing serotypes of Escherichia coli (E. coli) strains – O26, O45, O111, O121, O145, and O103 – “adulterants.”

Non-O157.jpgNon-E. coli O157:H7 EHEC as “Adulterants.”

According to the CDC, E. coli O157:H7 causes 73,000 illnesses and 50 deaths every year in the United States. Another six E. coli strains – O26, O45, O111, O121, O145, and O103 – are considered less pervasive, sickening “only” an estimated 37,000 people a year and killing nearly 30. E. coli O157:H7 is considered an adulterant in beef by the USDA (particularly ground beef), the other six strains are not.

Under 21 U.S.C. § 601 … (m), the Federal Meat Inspection Act (FMIA), the term “adulterated:”

shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances: (1) if it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated under this clause if the quantity of such substance in or on such article does not ordinarily render it injurious to health; …

It is hard to read the above and not think that the word “adulterated” does not apply to all E. coli. Presently, industry does not test for it because the USDA and FSIS does not require it – because they are not considered “adulterants.” In addition, only five percent of labs in the U.S. routinely test for these other E. coli leaving a gap in our food safety network and the true level of illness unknown.

Non-E. coli O157:H7 EHEC have been found in ground beef.

Continue Reading Non – E. coli O157:H7 EHEC (O26, O45, O111, O121, O145, and O103) should be “Adulterants”

Screen shot 2010-08-27 at 10.49.24 PM.pngIn another late Friday night press release, FSIS announced that Cargill Meat Solutions Corp., a Wyalusing, Pa. establishment, is recalling approximately 8,500 pounds of ground beef products that may be contaminated with E. coli O26.

FSIS became aware of the problem on August 5, 2010 when the agency was notified by the Maine Department of Agriculture, Food and Rural Resources of an E. coli O26 cluster of illnesses. In conjunction with the Maine Department of Health and Human Services, Maine Department of Agriculture, Food and Rural Resources, the New York State Department of Health, and New York State Department of Agriculture & Markets, two (2) case-patients have been identified in Maine, as well as one (1) case-patient in New York with a rare, indistinguishable PFGE pattern as determined by PFGE subtyping in PulseNet. PulseNet is a national network of public health and food regulatory agency laboratories coordinated by the Centers for Disease Control and Prevention (CDC). Illness onset dates range from June 24, 2010, through July 16, 2010.

* 42-pound cases of “GROUND BEEF FINE 90/10,” containing three (3) – approximately 14 pound chubs each. These products have a “use/freeze by” date of “07/01/10,” and an identifying product code of “W69032.”

The products subject to recall bears the establishment number “EST. 9400” inside the USDA mark of inspection. These products were produced on June 11, 2010, and were shipped to distribution centers in Connecticut and Maryland for further distribution. It is important to note that the above listed products were repackaged into consumer-size packages and sold under different retail brand names.

According to the CDC – non-O157 E. coli STECs (like O26, O45, 0103, O111, O121, and O145) cause 36,700 illnesses, 1,100 hospitalizations and 30 deaths in America each year.  And, tell me why our government has not agreed to adopt my “Petition for an Interpretive Rule Declaring all enterohemorrhagic Shiga Toxin-producing Serotypes of Escherichia coli (E. coli), Including Non-O157 Serotypes, to be Adulterants Within the Meaning of 21 U.S.C. sec. 601(m)(1)?”

For those interested in a bit more background, look at these links:

Marler’s Response to the American Meat Institute Statement on New Bill to Declare Additional Strains of E. coli as Adulterants

Supplemental Reasons Why Non-O157’s – like O145 – Should be Adulterants

It is Time (past time) for the FSIS to deem both Shiga-Toxin E. coli and Antibiotic Resistant Salmonella Adulterants

Also, I put my money were my mouth was and funded a $500,000 testing project to both test for non-O157 prevalence and to see if testing was practical.

I was visting my clients, Linda and Richard Rivera, in San Francisco today where Linda is in her 15th month of hospitalization from an E. coli O157:H7 infection.  She has become, in my mind at least, the reason that S. 510 must pass and the President must sign sweeping food safety legislation now.  

We talked for hours about their hopes and fears for themselves and their children, and how they wanted to give back to the High School where Linda worked and their kids went to school.  I offered to help.  

We will be setting up a Linda Rivera/Marler Clark Scholarship to be split between the wrestling program, the special education program and a scholarship for students interested in science – E. coli preferable.

I did get a bracelet out of it (GWTOY – means – “Guess who’s thinking of you?”)


Typhoid-Outbreak.jpgFruiti Pops, Inc. of Santa Fe Springs has recalled its mamey frozen fruit bars because of a possible link to a rare U.S. outbreak of typhoid fever.  The company said Thursday that the fruit bars were distributed in California, Arizona and Texas since May 2009.

Fruiti Pops says retail stores, ice cream trucks and vending machines sold the frozen fruit bars, which have the UPC number 763734000097.

The company says the frozen fruit bars were made from contaminated mamey pulp that Goya Foods, Inc. voluntarily recalled on Aug. 12, after it was linked to a typhoid fever outbreak in California and Nevada. So far no illnesses have been reported from the mamey fruit bars.

The other morning when I was prepping in another studio to talk with another cable channel about yet another food crisis—this time the recall of a half of a billion Salmonella-tainted eggs that had already sickened at least 1,400—I was asked by a young producer, “Attorney Marler, if you had a magic wand, what would you do to make food safer?”

My first thought (to myself) was, “How the hell do I know, I’m just an ambulance chasing barracuda looking to destroy some poor helpless food manufacturing corporation that just poisoned a bunch of people, cost retail chains hundreds of millions of dollars in recall costs, and damaged its entire sector’s image and sales?”

But then I thought some more. I thought about my nearly eighteen years spent dismantling those helpless corporations to secure medical expenses and lost wages for clients whose lives were destroyed, or ended, because they did something we all do about three times a day: they ate food. I thought about the ICU’s I had been in and witnessed the panic in a parent’s eye as a doctor coldly explained the need for kidney dialysis, or the reasons to stop life support because their child’s brain had stopped functioning. I thought about the heroic struggles in rehab as a brain-injured client learned to brush her hair and teeth, or learn to walk again as the family looked hopefully on. I thought about the fear that these families have as they wonder how they will cope with a disabled future without the resources to pay for it.

And, then I thought, “Give me the damn wand!”

Continue Reading What if I had a food safety magic wand?