frozen_veggies_6067346153_848f977616_bYesterday I was speaking to a prominent lawyer who defends companies that are caught up in foodborne illness outbreaks and the recalls of the food products that sickened consumers.  The lawyer was complaining (more on other lawyers complaining about the CDC below) about the CDC’s announcing deaths arguably related to the tainted product, specifically the recent CFR Foods frozen vegetable outbreak and massive recall. Here the CDC reported “[e]ight people infected with the outbreak strains of Listeria have been reported from three states from from September 13, 2013 to March 28, 2016. All eight people were hospitalized, including one from Maryland and one from Washington who died, although listeriosis was not considered to be a cause of death for either person.

The lawyer’s point is if the CDC did not consider listeriosis to be a “cause of death” then why mention the deaths at all?  Perhaps the lawyer has a point?  Perhaps the CDC should do a slightly better job explaining the cause of death and if the death was directly or indirectly linked to the the consumption of the product.

Looking back on some recent outbreaks and recalls had the CDC less equivocal about the link between the products and the deaths.  Take Dole’s Lettuce outbreak where the CDC reports that “[a]ll 19 (100%) ill people were reported as hospitalized, and 1 person from Michigan died as a result of listeriosis. One of the illnesses reported was in a pregnant woman. Illnesses ranged from from July 5, 2015 to January 31, 2016.”  However, Canada did appear to announce deaths that were less directly linked to the product:

In total, there were 14 cases of Listeria monocytogenes in five provinces related to this outbreak: Ontario (9), Quebec (2), New Brunswick (1), Prince Edward Island (1), and Newfoundland and Labrador (1). Individuals became sick between May 2015 and February 2016. The majority of Canadians cases (64%) are female, with an average age of 78 years. All cases have been hospitalized, and three people have died, however it has not been determined if Listeria contributed to the cause of these deaths.

In the Blue Bell outbreak, it seemed more evident that the CDC felt the deaths were in fact related to Listeria:

A total of 10 people with listeriosis related to this outbreak were reported from 4 states: Arizona (1), Kansas (5), Oklahoma (1), and Texas (3). All ill people were hospitalized. Three deaths were reported from Kansas (3). Illness onset dates ranged from January 2010 through January 2015.

Perhaps the difficulty in expecting the CDC to say with certainty if the deaths are linked or not to Listeria and the product is best illustrated in the Jensen Farms Outbreak.  In that outbreak the CDC found thirty-three deaths from outbreak-associated cases of listeriosis had been reported to CDC with one woman pregnant at the time of illness having a miscarriage. However, the CDC also found that “[t]en other deaths not attributed to listeriosis occurred among persons who had been infected with an outbreak-associated subtype.”

So, 43 died, but the CDC determined that 10 of them died from other causes not directly attributable to Listeria.  The 10 did have listeriosis, but the cause of death might well have been another co-morbidity – like a heart attack, stroke, or other pre-existing health issue.

Remember, most of the people impacted by Listeria are the immune compromised and elderly or a woman who is pregnant.  Often, parsing out if Listeria caused the death or helped grease the skids of death may well be difficult – especially if the person with Listeria lingers for months after the acute illness and before their untimely death.

So, what should the CDC do?  My vote is to borrow the language from our friends to the North.  If there is a person with Listeria that dies and if the cause of death is not “more likely that not related” to listeriosis, simply say however, it has not been determined if Listeria contributed to the cause of the death.

o-CHIPOTLE-DELIVERY-facebookLawyers complaining badly.

I had heard rumblings a few months ago of a threatening letter from Chipotle counsel to the CDC.  After reading it, I am still left scratching my head as to why you would ever send it knowing that it likely would go public as would CDC’s response.

According to press reports, Chipotle had argued in December that the updates were inaccurate, confusing and “unnecessarily intensified the public’s concern” about the health risks associated with the company. It requested a correction. A lawyer for the company also complained that a CDC official had been quoted saying that tainted meat probably wasn’t the cause of the outbreak because vegetarians were among those who got sick. Chipotle, which called one CDC statement “patently inaccurate,” asked the agency to consider the company’s objections before issuing additional updates. The CDC formally responded to Chipotle in a letter dated April 15 that was made public on its website this week. “CDC believes that the Web postings served to protect and inform the public as well as inform public health and regulatory partners as the federal, state and local level about this ongoing outbreak investigation,” the agency said in the letter. “The Web postings provided information the public might use to protect themselves by choosing to avoid certain food exposures associated with the outbreak.”

CDC 1, Chipotle Lawyer 0.

Here is Chipotle’s counsel’s letter and here is the CDC responsive letter.

My thought:  “In 23 years being involved with every major food illness outbreak in the US, I have never seen a company take on the CDC or public health in this manner.  Frankly, it is bizarre given that Chipotle was involved in multiple Salmonella, Norovirus and E. coli cases in 2015.  As the CDC states in its responsive letter, it has to protect the public health and that is what it did.”