December 2011

iceburg lettuce salmonella.jpgSmith’s grocery stores in Utah, Idaho, Wyoming, Montana, and northern Nevada are pulling all Growers Express brand iceberg lettuce from its shelves after receiving a Class 1 recall last night. In addition, Kroger stores in North Carolina, Virginia, Eastern West Virginia, and Eastern Kentucky are also pulling the product.

The iceberg lettuce is being recalled due to possible contamination with Salmonella. To notify customers, the stores have put up signs in their produce departments and initiated automated phone calls to customers who purchased the Growers Express brand iceberg lettuce with frequent shopper cards.

Today I was poring over several state health department files from a 2009 lettuce E. coli outbreak (about a dozen sick – two with HUS) that that went unreported to the media, and not investigated by the FDA, when this photo landed in my inbox:

Kim Jong Bill_Glasses Flattened[1].jpg

Since I am not dead – yet, it did make me think about what the food (besides starvation) safety issues might be in the “hermit kingdom.”

Apparently, in 2009 North Korea accused South Korea of sickening its players with “adulterated foodstuff” ahead of a World Cup qualifier and wanted football’s world governing body to investigate the claim. The North’s football association also claimed that the alleged food poisoning is part of South Korean President Lee Myung-bak’s “moves for confrontation” with the North.

North Korea coach Kim Jong Hun had raised the allegation after losing 1-0 to South Korea on April 1.

Kim had asked for the match to be delayed and moved to a neutral venue, claiming three of his players had food poisoning, but FIFA rejected the request. The Korea Football Association, the South’s soccer federation, said a professional sports doctor had examined the North Korean players and found no serious problem. More detailed examinations, including blood tests, were refused.

Hmm, sounds a bit like a sore loser.  I imagine it will be how the 2009 lettuce grower will feel after I complete the FDA’s unfinished job (See, Reference No. 12).

Later this week we will be filing suit against yet another raw milk producer.  Here are some of the details from the complaint.

Screen Shot 2011-12-28 at 5.34.11 PM.pngFrom late-August through early-November 2011, contaminated raw milk produced by Cozy Valley caused at least three children to become infected by a genetically indistinguishable strain of E. coli O157:H7. The three children, including the minor plaintiff TC, were residents of Pierce and Thurston Counties, Washington.

Based on the discovery of three genetically indistinguishable E. coli O157:H7 infections amongst customers of Cozy Valley, the Washington State Department of Agriculture collected approximately 42 samples from the premises at Cozy Valley, including from its cows and multiple locations in the milking and production areas. At least 3 samples, collected from a mop and from the floor in the milking parlor, tested positive for the same genetically indistinguishable strain of E. coli O157:H7 that infected the three children, including the minor plaintiff TC, described in the foregoing paragraph of this Complaint.

Michigan Department of Agriculture announced the recall of two cheese products of Green Cedar Dairy in Dearborn because of possible contamination with Listeria bacteria that has sickened two people. The recall covers packages saying All Natural Ackawi Cheese and All Natural Chives Cheese with a sell by date up to July 1, 2012. The agriculture department says its lab has found Listeria in samples of All Natural Chives Cheese. Green Cedar Dairy products are distributed in Macomb, Oakland and Wayne counties.

For the last several years, I have been a prime sponsor of the China International Food Safety & Quality (CIFSQ) Conference + Expo.  So, I have more than a passing interest in China’s food safety endeavors.  I also find it fascinating how different countries deal with both civil and criminal liability.  Recently, China jailed a consumer (father of a child sickened in a milk scandal), yet also put a milk producer to death.  Now there is another food issue and legal impacts.

Clenbuterol (a carcinogenic chemical), also known in China as “lean meat powder,” although banned in the country it stubbornly continues to pop up in the Chinese food supply, laced into animal feed by farmers impatient to get their meat to market and turn a profit. Clenbuterol can cause nausea, dizziness, headaches and heart palpitations in humans, but Chinese pig farmers like to use it because it yields leaner meat, which is more expensive than fatty meat.

Houston Criminal Lawyer admires the new Jail Czar.jpgAccording to press reports, a Chinese court recently convicted six butchers of harming public safety by knowingly selling tainted pork and sentenced them to up to four years in prison. They were also each fined up to $8000. The tainted pork scandal surfaced in March 2011 after traces of clenbuterol were found in live pigs in numerous slaughterhouses in agricultural producing regions.

This brings to 113 people, including 77 government employees, who have been jailed in connection with the scandal.

Earlier this year China’s top court ordered that capital punishment be used for food safety crimes that result in fatalities.

Here are a few wise words from the opening of the food safety conference:

“Food is essential, and safety should be a top priority. Food safety is closely related to people’s lives and health, economic development and social harmony. We must create a food safety system of self-disciplined food companies with integrity, effective government supervision and broad public support to improve overall food safety.”

Vice Premier Li Keqiang, Head of the National Food Safety Commission, State Council, P.R.C

What can we learn from China?

Screen Shot 2011-12-27 at 3.59.48 PM.pngAccording to a complaint filed in Bernalillo County District Court (#D-202-CV-2011-12566), 63-year old Rene Gaxiola consumed cantaloupe that was produced by Jensen Farms in the weeks leading up to his illness.  On September 7, 2011, Mr. Gaxiola began experiencing symptoms of Listeria illness such as fever, chills, cramps, and diarrhea.  The same day his condition worsened rapidly and his wife Susanna took him to Lovelace Hospital in Albuquerque, where he became disoriented, unable to communicate, and his temperature rose to over 106 degrees.  Over the next three days Mr. Gaxiola’s condition continued to deteriorate and he died in the hospital on September 10.  The lawsuit states that blood samples tested positive for a strain of Listeria associated with a multistate cantaloupe outbreak.

On December 8, the Centers for Disease Control and Prevention (CDC) reported that at least 146 people had been made ill with Listeria as a result of consuming Jensen Farms cantaloupe.  At least 30 deaths and one miscarriage have been attributed to the Listeria-contaminated cantaloupe. 

The lawsuit also names distributor Frontera Produce as well as food safety auditors Primus Labs and Bio Food Safety as defendants.  According to news reports, just days before the outbreak the auditors gave Jensen Farms a 96% score on the farm’s facilities audit. However, on October 19, the U.S. Food and Drug Administration (FDA) released a contradictory report of its own, detailing unsanitary conditions and rampant Listeria contamination inside the Jensen Farms packing facility.

Screen Shot 2011-12-27 at 12.14.17 PM.pngAnother E. coli lawsuit will be filed today against grocery chain Schnucks Supermarkets and Oklahoma-based romaine lettuce distributor Vaughan Foods. According to a complaint filed in St. Louis County Circuit Court, 61-year old Charles Meyer ate romaine lettuce from a Cool Valley, Missouri Schnucks location on several occasions prior to October 24, 2011 when he began experiencing painful gastrointestinal symptoms indicative of an E. coli infection including bloody diarrhea. The symptoms persisted and Mr. Meyer visited the doctor’s office on October 26 where he was diagnosed with food poisoning and sent to the emergency room for treatment. While in the ER, Mr. Meyer gave a stool sample which ultimately tested positive for a strain of E. coli associated with an E. coli O157:H7 outbreak linked to romaine lettuce sold at Schnucks supermarkets. He was then admitted to St. John’s Mercy Hospital where he was treated until discharged on October 30.

eye-attachment.jpgI am so tired of the emails from people – mostly people linked to the food industry – who just say, “cook it” or “wash it” and all will be good.

Say, how good is your eyesight?

Definition of Infective dose – the amount that can sicken or kill you or your kid after ingestion.  Say, what’s in your hamburger or turkey burger or that cantaloupe?

raw-hamburger.jpgE. coli O157:H7 and non-O157 Shiga-toxin E. coli infective dose? Unknown, but from a compilation of outbreak data, including the organism’s ability to be passed person-to-person in the day-care setting and nursing homes, the dose may be similar to that of Shigella (as few as 10 organisms).

Salmonella Infective dose? As few as 15-20 cells; depends upon age and health of host, and strain differences among the members of the genus.

cantaloupe_skin.jpgListeria infective dose? L. monocytogenes is unknown but is believed to vary with the strain and susceptibility of the victim. From cases contracted through raw or supposedly pasteurized milk, it is safe to assume that in susceptible persons, fewer than 1,000 total organisms may cause disease

Hepatitis A infective dose? Is unknown but presumably is 10-100 virus particles.

turkey-raw.jpgBotulism infective dose? A very small amount (a few nanograms) of toxin can cause illness.

Campylobacter infective dose? C. jejuni is considered to be small. Human feeding studies suggest that about 400-500 bacteria may cause illness in some individuals, while in others, greater numbers are required.

Thanks to the Bad Bug Book.


And, here is a great site to check the relative size of these “bad Bug.”

Screen Shot 2011-12-27 at 5.28.04 PM.png

Correct, you can not see them.

It was great to see Jennifer Brown of the Denver Posts story this morning “Concerns grow over salmonella that survives antibiotics” about the growing trend of outbreak linked to antibiotic-resistant Salmonella.  It’s worth a read:

Public Health Fact:

“… hundreds of people were sickened in 2011 because one of the four strains of antibiotic-resistant salmonella was in their meat.”

Some in Industry’s Response:

“Just declaring something an adulterant doesn’t solve the problem,” said Jay Wenther, executive director of the association. “That is almost a false sense of security.

“We try to limit any type of pathogens in the product to begin with, but you can’t reduce it down to zero.”

If the strains of bacteria are banned from raw meat products, ground meat and poultry carcasses found to contain them would have to be either thrown away or cooked before sale. Cooked meat is sold on average for 75 cents per pound, compared with $1.50 per pound for raw meat, Wenther said.

hamburger-raw.jpgThe Reality in Your Kitchen (guess which of the two hamburger has Salmonella in it?):

Hannaford Salmonella Outbreak:

   A total of 16 persons infected with the outbreak strain of Salmonella Typhimurium have been reported from 7 states. The number of ill persons identified in each state is as follows: HI (1), KY (1), MA (1), ME (4), NH (4), NY (4), and VT (1). Among persons for whom information is available, illnesses began on or after October 8, 2011. Ill persons range in age from 1 year to 79 years old, with a median age of 45 years old. Fifty percent are male. Among the 13 ill persons with available information, 7 (54%) have been hospitalized. No deaths have been reported.  Preliminary testing shows that the outbreak strain of Salmonella Typhimurium is resistant to several commonly prescribed antibiotics. This antibiotic resistance may be associated with an increase in the risk of hospitalization or possible treatment failure in infected individuals.  Epidemiologic and traceback investigations conducted by officials in local, state, and federal public health, agriculture, and regulatory agencies linked this outbreak to eating ground beef purchased from Hannaford stores.  Among 16 ill persons for whom information is available, 11 (69%) reported consuming ground beef in the week before their illness began. Among the 11 cases who reported consuming ground beef, 10 (91%) reported purchasing ground beef from Hannaford stores. For ill persons for whom information is available, reported purchase dates range from October 12, 2011 to November 20, 2011.

This continues a disturbing trend of illnesses and recalls linked to antibiotic-resistant Salmonella.  Here is a decade of history of Antibiotic-Resistant Salmonella Outbreaks:

Emmpak/Cargill Ground Beef 2002 – 47 Ill:

   In early 2002, isolates of Salmonella Newport in New York State were found to be resistant to more than nine antibiotics and had a decreased susceptibility to the antibiotic, ceftriaxone. Since 1996, an increasing number of Salmonella Newport isolates had been found to be resistant to antibiotics. This particular strain of Salmonella Newport was referred to as SN-MDR-AmpC. Subsequent to the discovery of cases in New York, four additional states discovered cases sharing the same strain of SN-MDR-AmpC.

When the cases were investigated, it was found that consumption of undercooked ground beef was the only food that was significantly associated with a risk of infection. The risk of infection when undercooked ground beef eaten was over 50 times greater than when well-cooked meat was eaten.

A sample of ground beef provided by a case-patient was analyzed and was found to be contaminated with SN-MDR-AmpC. Traceback of the meat implicated Emmpak Foods Inc., a subsidiary of Cargill, Inc. Most patients had eaten lean, or extra-lean, ground beef.

This outbreak was the first to implicate ground beef as a source of SN-MDR-AmpC. It illustrated the spread of antibiotic resistance from animal products to humans.

Northeastern States Ground Beef 2003 – 58 Ill:

   A cluster of Salmonella Typhimurium DT104 cases was found in the northeastern United States in late 2003. The strain was resistant to several antibiotics and was referred to as R-type ACSSuT. Illness was associated with consuming grocery store bought ground beef that was prepared at home as hamburgers.

Product traceback linked the cases to a single, large ground beef manufacturer that had previously been implicated in a multistate outbreak of a highly antibiotic resistant strain of Salmonella Newport in 2002. The meat processor produced much of the ground beef from culled cows.

On January 29, 2004, the USDA issued a reminder to consumers to cook beef thoroughly, but no product recall was issued. Related cases were found through April 2004. Cases were more likely than controls to have pre-existing medical problems.

Safeway Ground Beef 2007 – 43 Ill:

  Safeway markets in Arizona, California, Hawaii, Nevada, and New Mexico sold contaminated ground beef. A rare, drug resistant, strain of Salmonella Newport was isolated from the ill.

No recall was issued as the Food Safety and Inspection Service could not identify the specific “establishments, lots and products” that received the ground beef.

An alert was issued on December 21, 2007 that advised Safeway customers to refrain from eating ground beef that had been purchased between September 19 and November 5.

Beef Packers, Inc., Cargill, Ground Beef 2009 – 2 Ill:

  In December, Beef Packers, Inc., owned by Cargill, recalled over 20,000 pounds of ground beef contaminated with a drug-resistant strain of Salmonella Newport.

The company issued an earlier recall in August 2009, due to contamination of ground beef with the same strain of Salmonella Newport. This contaminated ground beef was produced in September and was distributed to Safeway grocery stores in Arizona and New Mexico.

The Arizona Department of Health linked two illnesses to the ground beef.

Beef Packers, Inc., Cargill, Ground Beef 2009 – 40 Ill:

  A Beef Packers, Inc. plant in California, owned by Cargill, distributed approximately 830,000 pounds of ground beef that was likely contaminated with Salmonella Newport. The beef was shipped to distribution centers in Arizona, California, Colorado, and Utah where it was repackaged into consumer-sized packages and sold under different retail brand names.

The contaminated beef contained a strain of Salmonella resistant to several commonly used antibiotics (called MDR-AmpC resistance). At least 40 people in nine states fell ill; at least 21 of the people lived in Colorado and five lived in California. Most people became ill during late June and early July, 2009.

Most of the ill in Colorado had purchased the ground beef at Safeway grocery stores. Ground beef was likely sold through other retail outlets as well.

Cargill is a privately held, multinational corporation whose business activities include production of crop nutrients, grain, livestock feed, agricultural commodities, and ingredients for processed foods.

King Soopers, Inc., Ground Beef 2009 – 14 Ill:

  King Soopers, Inc., a supermarket chain, recalled approximately 466,236 pounds of ground beef that was linked to an outbreak of Salmonella Typhimurium DT 104 in the state of Colorado.

The beef had been distributed in the states of Colorado, Kansas, Missouri, Nebraska, New Mexico, Utah, and Wyoming. The recall involved tray packs and chubs. The ground beef was produced on various dates ranging from May 23 to June 13, 2009. The Salmonella was resistant to many the antibiotics.

Jenny-O-Turkey Burgers 2010 – 12 Ill:

  Jennie-O-Turkey Store, All Natural Lean White Meat Turkey Burgers were recalled on April 1, 2011, after an outbreak of Salmonella Hadar had been linked with the consumption of this product.

The turkey burgers were sold exclusively in 4-pound cartons through Sam’s Club stores.

Consumer turkey burger samples in two states were confirmed to be contaminated with the outbreak strain of Salmonella Hadar.

The Salmonella Hadar is known to be resistant to several antibiotic drugs, including ampicillin, amoxicillin/clavulanate, cephalothin, and tetracycline. The Jenny-O Turkey Store is part of the Hormel Foods Company.

Cargill Meat Solutions Ground Turkey 2011 – 136 Ill:

   The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) issued a public health alert on July 29, 2011, due to concerns about illnesses caused by Salmonella Heidelberg associated with the use and the consumption of ground turkey. The alert was initiated after continuous medical reports; ongoing investigations and testing conducted by various departments of health across the nation determined an association between consumption of ground turkey products and illness.

On August 3, Cargill Meat Solutions issued a recall of ground turkey products. On August 4, the Centers for Disease Control published its first outbreak summary.

The Salmonella Heidelberg was multi-drug resistant, resistant to ampicillin, streptomycin, tetracycline, and gentamycin.

The CDC began its investigation on May 23, after recognizing an “unusual clustering” of Salmonella Heidelberg cases. About the same time, routine surveillance by a federal food monitoring system found the same strain of Salmonella Heidelberg in ground turkey in stores.

On July 29, the initial outbreak strain and a second, closely related, strain of Salmonella Heidelberg was isolated from a sample of leftover unlabeled frozen ground turkey from the home of an outbreak case in Ohio. Since February 27, 2011, a total of 23 ill persons were reported to PulseNet with this second, closely related, strain. Eighty-four ill persons were infected with the initial strain.

The consumer product sample originated from the Cargill Meat Solutions Corporation establishment in Springdale, Arkansas.

On September 11, Cargill Meat Solutions recalled an additional, approximately 185,000 pounds, of ground turkey contaminated with an identical strain of Salmonella Heidelberg that had led to the earlier recall on August 3.

As of September 27, 2011 no illnesses had been linked to the additionally recalled ground turkey products.

Schreiber Processing Company, MealMart Brand, Kosher Broiled Chicken Livers 2011 – 179 Ill:

  An outbreak of Salmonella Heidelberg was associated with eating broiled chicken liver or chopped chicken liver produced by the Schreiber Processing Company under the MealMart brand. As of November 16, 99 cases were identified in New York, 61 cases in New Jersey, 10 cases in Pennsylvania, 6 cases in Maryland, 2 cases in Ohio, and 1 case in Minnesota. Consumers believed that the product was fully cooked, however it was not. The product should have been heated before eating. The outbreak strain of Salmonella was found in samples of kosher broiled chicken livers and in samples of chopped chicken liver made from the same broiled chicken liver. In stores, “broiled chicken livers” are often re-packaged and sold in smaller quantities or are used to prepare chopped liver sold at deli-style establishments.

Question:  Would you be willing to pay more for beef, turkey or chicken without Salmonella?

You can still get the book at Amazon – “Poisoned: The True Story of the Deadly E. Coli Outbreak That Changed the Way Americans Eat.”



“A fast-paced narrative and a cautionary tale about how public health policy, corporate practices and public relations, and lawyers’ chutzpah and frenzy for fees can converge in a place we all know well.” –Associated Press

“A new, thriller-style account of the horrors of that E. coli outbreak and the subsequent events, including the groundbreaking rulings making O157:H7 an “adulterant”. –Mark Bittman, The New York Times

“Spartan prose delivers a chilling, page-turning lesson in food safety.” –Kirkus Reviews

“Movie-like …Benedict does a dramatic public service by showing us what happened behind the scenes.” –Christian Science Monitor

“Part thriller, part investigative expose, and all human, “Poisoned” lays out in rich, untold detail the tragic yet ultimately inspiring story behind the largest deadly E. coli outbreak in history.” –Armen Keteyian, CBS News

Happy Holidays – whatever you celebrate, or not.  I wish all well – especially my opponents.  May your Holiday meals be safe, and I wish for all of us less work for you in the New Year. 

Say, you all still have time to vote for Marler Blog as one of the top ABA Law Journal Blawg 100 for 2001.  Look for Marler Blog under Torts.