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It has been a long time since Wendy’s has been across from me in a Court – and that is a good thing for Wendy’s and its customers.  However, now with the CDC reporting nearly 40 E. coli O157:H7 cases in Ohio, Michigan, Pennsylvania and Indiana, some hospitalized and some, mostly children, developed hemolytic uremic syndrome (HUS).  Michigan is reporting over 100 cases and Ohio will report near 50 next week.  The FDA is reporting that the likely ingredient is a hybrid romaine iceberg lettuce used on hamburgers.  Expect next week to learn that the lettuce was likely grown in California and processed and distributed by a major leafy green manufacturer.

Interestingly, the arch of my relationship with Wendy’s has also been the arch of the change between ground beef as the primary vector in E. coli outbreaks to leafy greens. From the Jack in the Box outbreak in 1993 (yes, nearly 30 years) to the ConAgra E. coli outbreak in 2002, nearly 100% of my law firm’s revenue was E. coli cases linked to beef, primarily ground beef hamburgers. HUS used to be called “the hamburger disease.” Since 2003 hamburger cases have dwindled (there was a slight spike in 2006/2007) to a handful a year. I have repeatedly commended the beef industry and FSIS for “putting me out of business.” Now most of my work is with contaminated fresh fruits and vegetables, with romaine lettuce being the main culprit. I wonder when the leafy green industry and the FDA will take the challenge that the beef industry and FSIS took and “put me out of business – please.”

I guess they are not quite ready to do that.

We have been retained by nearly a dozen victims who were hospitalized, including a child who developed HUS.  One lawsuit was filed on Ohio. Our goal, with or without Wendy’s assistance, is to identify the supply chain of this hybrid lettuce and find out why once again we are looking at another leafy green E. coli outbreak (see chart below).

But first a brief Marler Clark History with Wendy’s and E. coli and Lawsuits:

On August 22, 2000, Marion County Health Department (MCHD) investigators contacted the Oregon Health Department to report that several county residents were suffering from E. coli O157:H7 infections. 

MCHD conducted a case-control study to determine the source of the apparent E. coli outbreak and quickly learned that several cases had eaten at a Wendy’s restaurant located at 2375 Commercial St. SE in Salem. Pulsed field gel electrophoresis was conducted on E. coli isolates from patients’ stool specimens, and the PFGE pattern, or DNA fingerprint, obtained confirmed the epidemiologic link between case-patients, including one victim whose only exposure to Wendy’s was a restaurant in Tualatin, Oregon. 

The health department investigation revealed that cross contamination from contaminated ground beef may have been the outbreak source, as several victims had not eaten ground beef products. Marion County Inspectors found several food-handling problems that likely resulted in cross-contamination, causing E. coli bacteria in the meat to contaminate other foods. These included:

  • Food-preparation staff-soaked lettuce in the first compartment of a three-compartment sink that was used to rinse bloody meat-juice-covered pans in which raw hamburger patties had been held, without cleaning and sanitizing the sink between uses.
  • Food-preparation staff used a cleaning and sanitizing “wet towel, dry towel” process, whereby a shelf above the grill that held raw hamburger patties was wiped clean first with a dry towel, then with a sanitized-soaked wet towel. The dry, bloody meat-juice-soaked towel was used for hand wiping in both the grill area and the sandwich assembly area (where raw products are placed on cooked burgers).
  • Poor hand washing was observed.

MCHD concluded that cross-contamination occurred between the meat that was supplied to both the Salem and Tualatin Wendy’s Restaurants and other food items that did not undergo a further “kill step.” 

Marler Clark represented fifteen victims, some who developed hemolytic uremic syndrome (HUS), of the Wendy’s E. coli outbreak in claims against the restaurant chain. The claims were resolved in 2001 – 2002.

In June of 2006, lettuce served in dishes prepared by a Wendy’s restaurant in Ogden, Utah, was the source of an E. coli O121:H19 outbreak. Following an investigation into an E. coli O121:H19 outbreak among attendees of a CORE Academy luncheon held at Orion Junior High School in Harrisville, Utah, on June 30, the Weber-Morgan Health Department (WMHD) announced that four people had become ill with E. coli O121:H19 infections after eating iceberg lettuce prepared at the Wendy’s restaurant located at 2500 N 400 E in North Ogden, Utah. WMHD announced that three of the four people who were confirmed ill with E. coli infections after eating the food prepared by Wendy’s had developed hemolytic uremic syndrome (HUS)

WMHD’s investigation into the E. coli outbreak revealed that more than 300 people were potentially exposed to E. coli at the CORE Academy luncheon. Two individuals who ate salads at the CORE luncheon were confirmed ill with E. coli O121:H19; one developed HUS. Further investigation revealed that one ill individual consumed hamburgers purchased at the Wendy’s restaurant on June 27, 28, and 29 and developed HUS.

Marler Clark filed a lawsuit against Wendy’s on August 11, 2006. The lawsuit was filed on behalf of a family who became ill with E. coli O121:H19 infections after the mother attended the CORE Academy conference in Harrisville and became ill. One child was hospitalized with HUS. The firm also represented two women who became ill with E. coli O121:H19 infections and HUS and suffered acute kidney failure. All the claims were resolved in 2007 – 2008.

E. coli outbreaks associated with lettuce, specifically the “pre-washed” and “ready-to-eat” varieties, are by no means a new phenomenon. In fact, the frequency with which this country’s fresh produce consuming public has been hit by outbreaks of pathogenic bacteria is astonishing. Here are just a sample of E. coli outbreaks based on information gathered by the Center for Science in the Public Interest, Kansas State University, Barf Blog and the Centers for Disease Control and Prevention:

DateVehicleEtiologyConfirmed
Cases		States/Provinces
July 1995Lettuce (leafy green; red; romaine)E. coli O157:H7741:MT
Sept. 1995Lettuce (romaine)E. coli O157:H7201:ID
Sept. 1995Lettuce (iceberg)E. coli O157:H7301:ME
Oct. 1995Lettuce (iceberg; unconfirmed)E. coli O157:H7111:OH
May-June 1996Lettuce (mesclun; red leaf)E. coli O157:H7613:CT, IL, NY
May 1998SaladE. coli O157:H721:CA
Feb.-Mar. 1999Lettuce (iceberg)E. coli O157:H7721:NE
Oct. 1999SaladE. coli O157:H7923:OR, PA, OH
Oct. 2000LettuceE. coli O157:H761:IN
Nov. 2001LettuceE. coli O157:H7201:TX
July-Aug. 2002Lettuce (romaine)E. coli O157:H7292:WA, ID
Nov. 2002LettuceE. coli O157:H7131:Il
Dec. 2002LettuceE. coli O157:H731:MN
Oct. 2003-May 2004Lettuce (mixed salad)E. coli O157:H7571:CA
Apr. 2004SpinachE. coli O157:H7161:CA
Nov. 2004LettuceE. coli O157:H761:NJ
Sept. 2005Lettuce (romaine)E. coli O157:H7323:MN, WI, OR
Sept. 2006Spinach (baby)E. coli O157:H7 and other serotypes205Multistate and Canada
Nov./Dec. 2006LettuceE. coli O157:H7714:NY, NJ, PA, DE
Nov./Dec. 2006LettuceE. coli O157:H781 3:IA, MN, WI
July 2007LettuceE. coli O157:H7261:AL
May 2008RomaineE. coli O157:H791:WA
Oct. 2008LettuceE. coli O157:H759Multistate and Canada
Nov. 2008LettuceE. coli O157:H7130Canada
Sept. 2009Lettuce: Romaine or IcebergE. coli O157:H729Multistate
Sept. 2009LettuceE. coli O157:H710Multistate
April 2010RomaineE. coli O145335:MI, NY, OH, PA, TN
Oct. 2011RomaineE. coli O157:H760Multistate
April 2012RomaineE. coli O157:H7281:CACanada
June 2012RomaineE. coli O157:H752Multistate
Sept. 2012RomaineE. coli O157:H791:PA
Oct. 2012Spinach and Spring Mix BlendE. coli O157:H733Multistate
Apr. 2013Leafy GreensE. coli O157:H714Multistate
Aug. 2013Leafy GreensE. coli O157:H7151:PA
Oct. 2013Ready-To-Eat SaladsE. coli O157:H733Multistate
Apr. 2014RomaineE. coli O12641:MN
Apr. 2015Leafy GreensE. coli O14573:MD, SC, VA
June 2016Mesclun MixE. coli O157:H7113:IL, MI, WI
Nov. 2017Leafy GreensE. coli O157:H767Multistate and Canada
Mar. 2018RomaineE. coli O157:H7219Multistate and Canada
Oct. 2018RomaineE. coli O157:H762Multistate and Canada
Nov. 2019 RomaineE. coli O157:H7167Multistate
Dec. 2020Leafy GreensE. coli O157:H740Multistate
Jan. 2021Baby SpinachE. coli O157:H715Multistate
Mar. 2022Packaged SaladE. coli O157:H710Multistate

The Food Safety Law Firm: 

Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of E. coli outbreaks and hemolytic uremic syndrome (HUS). The E. coli lawyers of Marler Clark have represented thousands of victims of E. coli and other foodborne illness infections and have recovered over $850 million for clients. Marler Clark is the only law firm in the nation with a practice focused exclusively on foodborne illness litigation. Our E. coli lawyers have litigated E. coli and HUS cases stemming from outbreaks traced to ground beef, raw milk, lettuce, spinach, sprouts, and other food products. The law firm has brought E. coli lawsuits against such companies as Jack in the Box, Dole, ConAgra, Cargill, Wendy’s and Jimmy John’s. We have proudly represented such victims as Brianne Kiner, Stephanie Smith and Linda Rivera.

If you or a family member became ill with an E. coli infection or HUS after consuming food and you’re interested in pursuing a legal claim, contact the Marler Clark E. coli attorneys for a free case evaluation.

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