September 2010

0128_superman_485x340.jpgScreen shot 2010-09-30 at 9.15.28 PM.pngIt was reported today that Mustang Public School officials and the Oklahoma State Department of Health are investigating a Salmonella outbreak among elementary children in Canadian County.  Officials said 10 cases have been confirmed in Mustang (see A) among elementary-aged children.  Health investigators are interviewing parents and children in order to track down the source of the outbreak.

It is great that the Senate adjourned today in time for Senator Coburn (who is also a physician) to rush/fly home to help figure out if this outbreak is foodborne or not.  I am sure that he will come to the conclusion – regardless the cause of the outbreak – that food safety legislation – like S. 510 – would not have stopped it, or, would it have?

s510notdead.jpgLike a vampire in the books my daughters like to read, S. 510 keeps coming back to life.  According to the AP, the Senate will consider a food safety bill (S. 510) after the November elections that would give the Food and Drug Administration more power to prevent foodborne illness.

Senate Majority Leader Harry Reid, D-Nev., laid the groundwork late Wednesday for a vote to end debate on the bill when Congress returns after the Nov. 2 elections. The procedural maneuver requires 60 votes and is a way to circumvent one senator’s objections. Republican Sen. Tom Coburn of Oklahoma has blocked the legislation, saying it adds to the deficit.

The bill would give the agency more power to recall tainted products, increase inspections of food processors and require producers to follow stricter standards for keeping food safe.

The legislation passed the House last year.

One amendment to the bill, the so-called “Tester Amendment” (Tester-Food-Safety-Amendment.pdf) is also still alive and needs to be analyzed – good or bad for food safety? Stay tuned.

William-Marler0036-315x228.jpgMultiple Pulitzer Prize winner Andrew Schneider and I have spoken quite a bit over the last several months as he plowed through the facts as he wrote this blog post and a three-part series for AOL News – 1, 2 an 3. Here are a few of my favorite “back and forth:”

Why should a trial lawyer kick in a half-million dollars of his own money to document the presence of an unregulated pathogen in America’s meat supply when the agency responsible for meat safety won’t?

“That’s precisely why,” William Marler told me during a long series of interviews earlier this year.


Many of his critics say Marler spent $500,000 on testing just to generate new business. Not so, he says.

“From a legal prospective, it doesn’t matter whether the pathogen is considered an adulterant or not. If the injured party is sick and we can prove the source of the pathogen, they can still sue,” Marler said. “The reality is that the easiest way for the industry to make sure that I don’t make a penny from their shortcomings is to not poison the people in the first place.”

By the way, in the picture above, I’m on the left.  In one of Mr. Schneider longer pieces, “Food-Safety Lawyer Puts His Money Where Your Mouth Is,” he had a series of unnamed sources – erstwhile competitors and lawyers who defend companies that poison people say a few words:

Some people don’t like Marler, however. AOL News contacted five other lawyers who handle food-borne illness cases and defense lawyers who say they work for large food companies. Only two would talk, even without their names being used.

“Marler is good. Many of us are much, much better. He just does a better job pimping his own successes than most of us do,” said one Midwest lawyer. He would offer no details, citing bar association edicts against talking bad about brother barristers.

Another defense lawyer, who said his firm represented two major food industry companies in cases that Marler pushed, called him ruthless, adding, “If his client is a kid, even a teenager, there is absolutely nothing, nothing at all Marler won’t do to get a juicy settlement. He doesn’t understand compromise, and sometimes I wonder how he sleeps.”

Interesting. The lawyer who claims to be better hides behind a non-existent bar rule.  Frankly, the lawyer is simply a pussy. No wonder he gets few clients; he does not have the balls to use his own name – pathetic. As for the defense lawyer calling me ruthless in pursuit of a fair result for a kid – Thanks for the complement.

blawg100_2009_logo.jpgThe ABA (a law group known primarily for protecting corporate interests – or at least leaning heavily in the direction of doing their bidding) is working on their list of the 100 best legal blogs ( made it last year). They are looking for some advice on which blawgs you think they should include.

The form on its website can be filled out to tell them about a blawg—not your own—that you read regularly and think other lawyers (or humans) should know about. If there is more than one blawg you want to support, feel free to send them more amici through the form. They will be including some of the best comments in the Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

Some additional tips:

• They are not interested in “occasional” blawgs—blawgs you name should be updated at least weekly.

• Editors make the final decisions about what’s included in the Blawg 100; this isn’t a scenario in which the blawgs that receive the most amici are the ones that make the list.

Friend-of-the-blawg briefs are due no later than Friday, Oct. 1.

If you are having trouble with this form, you can email your submission to

25_AVE_1401.jpgThe Rock Island High School in Illinois is the recipient of a $25,000 donation from food safety law firm Marler Clark. The Seattle-based law firm works nationwide on behalf of victims of foodborne illness, and assisted many residents in the 2009 outbreak of Hepatitis A Virus (HAV) traced to a Milan McDonald’s.

“Foodborne illness outbreaks can affect a great many people,” said Marler Clark managing partner Bill Marler. “With this donation, we want to encourage young minds to consider science, in the hopes that the next generation can improve food safety for all of us.”

fdaidiot.jpgI spend a lot of time supporting the FDA and the need for more resources. Come on FDA, please give me a little bit of help here. Willy Neuman and the New York Times crack another story about the seemingly error prone FDA in today’s story, “Oop! F.D.A. Error Is Talk of Henhouse.”

According to Neuman, apparently. “[a] delay in sending safety inspectors to egg farms after this summer’s salmonella outbreak and egg recall can be traced in part to a parking mistake outside a pair of Pennsylvania henhouses, according to industry executives and state government officials.”

Well, that is “eggasperating.” Here is the rest of the sad story of “eggo” and “eggcompetence:”

Continue Reading The FDA lays an Egg, well actually 550,000,000 of them

2010-Top-25.JPGI found out today that I’ve been honored with a nomination for the LexisNexis Top 25 Business Law blogs – sweet! Evidently, folks now get to vote on the nominations to decide on the winners. Voting involves going to the LexisNexis communities site, and commenting with your vote on the nominees. If you aren’t on LexisNexis, you can sign up at no cost, and you will not be contacted by them (other than possibly to announce the…ahem…winners!) Here are the details:

Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. MarlerBlog has been nominated for the LexisNexis Top 25 Business Law Blogs of 2010, featured on the LexisNexis Corporate & Securities Law Community and the LexisNexis UCC, Commercial Contracts & Business Law Community.

We are inviting the business law community to comment on our list of nominees. To support a nomination, please comment on the announcement post at either of the following links:

Top 25 Business Law Blogs 2010 – Corporate & Securities Law Community

Top 25 Business Law Blogs 2010 – UCC, Commercial Contracts & Business Law Community

To submit a comment, log on to your free web center account. If you haven’t previously registered, you can do so on the Corporate & Securities Law Community or the UCC, Commercial Contracts & Business Law Community pages. Registration is free and does not result in sales contacts. The comment box is at the very bottom of the page. The comment period for nominations ends on October 8, 2010. After that time, our board of editors will select the Top 25 based on votes from our visitors and upon the votes of our board of editors. Thereafter, our community will vote on the Top Blog through a Zoomerang survey. The final announcement will be made on October 31.

Wednesday, October 27 to Thursday, October 28, 2010

Millennium Knickerbocker Hotel Chicago, Chicago, IL, United States

Alan Maxwell and I are co-chairing this year’s conference – again. This time, in addition to our two man show:

Screen shot 2010-09-29 at 5.04.49 AM.png

There is a star-studded group of speakers:

Continue Reading ACI Food-Borne Illness Litigation Conference – Advanced Strategies for Tackling the Underlying Science and Defending Against Complex Food Contamination Claims

After nearly 18 years doing foodborne illnesses cases, I have been frustrated by the lack of any prosecutions against many of these corporations who poison and kill us. When will a prosecutor step-up? It really is left to the blunt instrument of civil litigation, and punitive damages in particular, to “punish” these bad actors in our food supply. There is clear and convincing evidence that the defendant, Wright County Egg, acted willfully and wantonly in disregarding the rights and safety of others, including, specifically, the plaintiff, Ms Lewis. As such, the plaintiff is entitled to an award of punitive damages pursuant to Iowa Code §668A.1 and Iowa law. See Amended Complaint.

Screen shot 2010-09-27 at 8.53.24 AM.png