Illustration by Celeste Byers
Attorney Bill Marler has won more than $600 million for clients since he and his partners formed Marler Clark in 1998. Marler rose to fame—or notoriety, if you’re a food producer—in 1993, when he successfully litigated a series of suits against Jack in the Box on behalf of children who contracted E. coli from eating the fast food joint’s tainted beef. Undercooked hamburger patties contaminated with E. coli 0157:H7 (“the nasty form,” Marler points out) sickened more than seven hundred people in five states, killing four people and hospitalizing hundreds—mostly kids. Investigations revealed that Foodmaker, Inc., Jack in the Box’s parent company, had been warned about undercooking patties by health departments, but decided to continue the two-minute cook time for business reasons, and to maintain a better texture. Marler resolved cases for more than one hundred victims.
Bill Marler isn’t a lawyer with a focus on foodborne illnesses: he is the foodborne-illness lawyer. Marler Clark owns twenty-eight different websites, from Food Safety News to Listeria Blog. In a 2011 case involving Listeria in cantaloupe, Marler represented fifty of the sixty-six claimants. In a 2006 spinach-based E. coli outbreak, he represented 104 of 105. There are other lawyers out there who take on similar cases but, according to Marler, “there aren’t four lawyers in the world that have as much experience” in the field as the core attorneys of Marler Clark. “Twenty-two years into this,” Marler says, “I’ve taken tens of thousands of cases. Some outbreaks might have a hundred people, or some twenty. I can say I’ve been involved in every major foodborne-illness outbreak that’s occurred in the U.S. since 1993.”
Marler was just a few years out of law school when he fell into his first foodborne-illness case. Previously, he had been a litigation associate, working his way up the ladder at a midsize Seattle law firm, representing the murder victims of a parolee and the interests of firefighters who died on the job.
Around the same time of the Jack in the Box outbreak, inauguration weekend in 1993, I had represented this gal who slipped and fell at her job, which was a car dealership. She wanted to sue everyone; it was really a major injury. She had hit her head, had some brain trauma. It was a serious claim, but when you fall at work, you fall under workers’ comp, and workers’ comp doesn’t argue with you about how the accident happened, it’s where the accident happened. I helped her through that process, both to understand there wasn’t a claim she could make against the car dealership and that it was a workers’ comp claim, and didn’t charge her anything and went back to my job.
She had a friend, or maybe a friend of a friend, whose kid was in the hospital with E. coli. So when the outbreak happened, I think it was a Monday or a Tuesday, all the lawyers in Seattle were like, Oh my God! I got one of the very first calls, from her, saying she had this friend of a friend’s kid in the hospital in Tacoma.
The kid’s name was Lorissa Gragg. The first thing I did was go down and meet the mom, Karen. It was at a diner off I-5 called the Poodle Dog diner. It was your typical diner. I got her permission to file a lawsuit. I never met Lorissa. She was fortunately not one of the severely injured kids. The mom, on behalf of her child, was the class representative in the class action. But the class action really encompassed people who were less severely injured: people who were either not hospitalized or only hospitalized for a few days. She was only there for a couple of days: dehydration, bloody diarrhea. She was very, very sick, but not to the extent, obviously, of many of these other kids.
I filed the lawsuit right away and went from having one client to ten clients to thirty clients to fifty clients all within a relatively short period. I was really involved with organizing the litigation even though I’d only been out of law school four and a half, five years. Like everything else in life, if you offer to do everything, people will let you do it.
The kids who were hospitalized for a long period of time, I’ve visited those kids and those families in the hospital. I’ve done that a number of occasions over the last twenty years, especially during some of the larger outbreaks. Probably in all of the major outbreaks I’ve visited some kids or adults in hospitals—far more often than I care to imagine.
During the Jack in the Box outbreak, I visited a number of times with the Kiner family while their daughter Brianne was in the hospital. The first time I met with her, she had just gotten out of a coma after almost a month and a half. She was still on dialysis. She was a little kid, nine years old, but she’d already been in the hospital two and a half months by then. Her liver had failed, kidneys had failed, they’d opened her up to take out her large intestines. And she was still on a mask, getting oxygen.
At that point I was a young father. My oldest daughter, who is now in her twenties, was not even a year old when I first met the Kiner family. It was pretty overwhelming, trying to come home and explain what this Kiner child looked like to my wife.
One of the things I remember really, really vividly is that her parents were both really white, red-haired, freckly people, real light skin. And Brianne’s skin was really dark because of liver failure. She had bloated so much her skin was cracked. It had—and it sounds terrible—she had the look of turkey skin. When you have a turkey dinner? It was kind of like that. It was surreal. It is probably one of the reasons I hate carving turkeys. I miss my father, he used to do that, he was the turkey carver. Now my wife buys turkey in pieces.
Unfortunately, over the years, I’ve seen dozens of dozens of kids hooked up to dialysis or even adults in hospitals, on ventilators, in ICUs. It is pretty overwhelming. The science of what they’re able to do for these people is amazing and miraculous. But what these kids go through, people who have had a foodborne illness: I think a lot of us don’t really realize that foodborne illness is more than just a tummy ache, these people are horrifically injured and can have problems for the rest of their lives.
Brianne and her family received $15.6 million from Jack in the Box as part of the settlement Marler negotiated. The Jack in the Box case was followed quickly by the 1996 Odwalla case, when the company’s unpasteurized apple juice was linked to an outbreak of E. coli. At least sixty-six people fell ill, and a sixteen-month-old died of kidney failure. This also happened to take place around the western United States, so Marler was again on the receiving end of phone calls.
A lawyer from Chicago was living at the Fred Hutchinson Cancer Research Center in a bubble, undergoing a bone-marrow transplant. His wife would bring one of their three kids out every other weekend, to visit dad who was stuck in the hospital. On one of the trips home, the little girl, Amanda, she might have been five years old, got an Odwalla apple juice at Starbucks and flew home. Within three days, she’s sick, within seven days she’s in the ICU in Chicago, and Dad’s stuck in Seattle, Dad’s dad is a big-shot lawyer in Chicago, and he calls me. When a big-shot lawyer in Chicago calls a guy now seven years out of law school, it’s kind of a big deal. That might have been the time when I sort of thought maybe I had made my grade.
By the time the Odwalla case was settled, Marler, still less than a decade out of law school, had more experience in foodborne-illness cases than anyone else in the country. He joined forces with Denis Stearns and Bruce Clark, who had been one of Jack in the Box’s defense lawyers, and they formed Marler Clark in 1998. Now this is all they do, settling for people like the twenty-six kids who contracted E. coli at a Georgia water park and the victims of the 2006 case involving Dole’s pre-bagged spinach. Salmonella in eggs and peppers at Walmart, campylobacter in prison salads, hepatitis A in frozen berries, shigella from Subway, norovirus—the list goes on. Marler just finished wrapping up settlements details of the 2011 cantaloupe case. Marler speaks proudly of the changes his cases have brought to the system.
Pre-Jack in the Box, E. coli 0157:H7 was not considered an adulterant in meat. It was like salmonella: thought of as a naturally occurring pathogen. Although it is naturally occurring in the guts of the cow, it isn’t in the meat of the cow. When FSIS [The USDA’s Food Safety and Inspection Service] said E. coli was an adulterant, it rocked the meat industry.
The fought it, they sued, screamed and yelled that they couldn’t do it, and that it would raise meat prices. But none of that ever transpired. They figured out how to do it, and E. coli cases linked to hamburger ultimately just sort of disappeared. Which is bad for me, as a lawyer, but great for consumers.
We investigate cases thoroughly, make sure the science is right. By the time we file a lawsuit, by the time we make a claim, we know what the answer is going to be. It’s not a question. It really becomes a matter of: How much is this case worth? We’ve only tried a half dozen in nearly twenty years. It’s not because we’re bothered by going to trial. Bruce, Denis, and I are actually pretty good at it. But when you have a case where you come in so incredibly prepared and able to prove your case, then really the issue is how much is that case worth. That becomes something you can negotiate.
I enjoy the science of the stuff, both from the damages point of view—trying to figure out what the long-term prognosis for these kids or these adults might be—and also the science of tracking an outbreak. That CSI part of what I do is always really fascinating. I have an epidemiologist on staff. I deal a lot with some of the best experts in the world when it comes to foodborne-illness investigations and how all that happens. Each outbreak is different.
I just got brought in on a case in California, in a deli. In some respects, it’s a very typical salmonella outbreak. But what’s fascinating is that thirty people get sick, and the outbreak was completely swept under the rug. The health department didn’t notify anybody. So, it’s interesting to see that the deli was a favorite of political people and kind of an institution. You have to ask yourself, “Huh, it seems like these guys got a little bit of a break from the health department.” That’s just wrong. It’s a new twist on a typical deli salmonella outbreak. I’m never bored.
These days, Marler splits his time between cases and public speaking—to Congress, to manufacturers’ associations, and at conferences. He pooh-poohs the idea that his business has any semblance of ambulance chasing, dismissing that as something for the “finger-in-the-chili” and “rat-in-the-can” cases—claims he says are fraudulent, not genuine. He would never take them. I ask him at what point his work became as much a mission as a job.
You have to understand, people don’t believe this, but lawyers are human beings, too. When you have been in as many ICUs as I have, you’ve watched a kid be removed from life support. You see the horror of that.
I was a young parent—I have three daughters—and a lot of the kids in the late nineties and early 2000s were getting super sick and dying. A large portion of the cases I represent are kids; I could really relate that to my family.
It was probably 2002 when I started thinking, Wow, suing is great, but it isn’t so much the money thing. Suing seemed to be moving the needle a little bit. That’s when I started going to conferences, being asked to speak, being asked to be a keynote speaker here, there, and everywhere. Being able to share stories about why it’s a bad idea to poison somebody. I started doing more of that, which is now sometimes as much as 50 percent of my time.
I still represent people, and I still sue companies, and I still extract big results out of them. That’s sort of my market lever. But the other part of what I do is go to these conferences and get asked to speak all around the world. And I think the fact that I do that actually makes it harder for companies to go, “Oh, he’s just suing us to try to make a lot of money.” It helps them make better decisions about food safety.
A 2013 Consumer Reports study showed that 97 percent of supermarket chicken is contaminated. I ask Marler if we should just stop eating it. He’s already told me he doesn’t eat sprouts, or drink unpasteurized juice or raw milk. “Really,” he says, “anything raw.” He adds that he does eat sushi, but not oysters or clams (they’re filter feeders, and he’s seen a significant increase in foodborne-illness outbreaks from them).
I look at bagged salad like swimming in a public swimming pool with five hundred strangers. Versus taking a head of lettuce and washing it, which is like taking a bath with your significant other. It’s not without risks, but the risks are very, very small. When you mass-produce things, there is a great opportunity to fix problems before they happen. But if you make a mistake, you really pay for it.
I do eat chicken. But we handle it like it’s radioactive. Most fruits and vegetables and meat we handle that way at the Marler household. I just had my first hamburger in twenty years. Industry and government can do so much more. The hamburger industry is a great example of how it can actually work, but there’s inertia. There’s not enough mass push by the public to change. So we leave it up to litigation and incremental change. Litigation is a blunt instrument for social change. It’s not very precise.
The problem with regulators is that there is so much pressure on them for inactivity. Politicians don’t want change because their constituents, in the industry, are going to complain. Industry likes everything to stay the same so they know exactly what to expect. When change happens they get all excited and they call their congressmen. Then congressmen and senators put pressure on the bureaucrats, and change doesn’t occur.
Change happens when disaster strikes. When airplanes fly into buildings, and now we have to take our shoes off at the airport. An E. coli outbreak happens at Jack in the Box, and E. coli becomes an adulterant. Where politicians and bureaucrats fail is at being leaders.
You can’t sue the government for being lazy or stupid, or politicians for being lazy or stupid. But you can vote them out of office, and you can hold them to account. But we don’t do that as much as we should.
I can’t even tell you how many hundreds of thousands of dollars I spent and how many millions of dollars I raised for politicians from 1996 to 2008. I was involved very heavily in Democratic politics. You’re sort of left wanting, saying, What have we really accomplished? And that’s frustrating. It shows the complexity of how you get government to do what it’s supposed to.
I ask Marler to look into his crystal ball and tell me where we should look for the next foodborne-illness outbreaks. He says the increase in food produced outside the U.S. makes it likely that the next outbreak will come from imported food. He points a finger at seafood and spices, most of which are imported. And then he points his finger at those responsible for policy.
I think we will continue to see incremental changes based on disasters. That’s not just in food, that’s in everything that we do in public policy. I’ve never quite figured out what the rationale is for us to ignore things until the bus runs us over. I don’t get it. I was talking to a reporter for one of the news magazines for the produce industry and they were talking about the lettuce and spinach outbreaks, saying, “Oh, that was such a watershed thing, it never happened before.” And I’m like “No! You had two or three outbreaks every year for a decade, and the industry just ignored them.” Until the bus just ran them over.