December 9, 2006

In an opinion piece this morning entitled “Sickened by Fresh Produce” the Editorial Page of the New York Times has weighed into the produce fields and found them contaminated too often with E. coli O157:H7.

“The expanding outbreak of E. coli poisonings in New York, New Jersey and several other states underscores the need for more rigorous regulation of the whole supply chain for fresh produce, from the growing fields to the customer. It is outrageous that fresh vegetables, typically deemed a vital component of a healthy diet, have become a menace because of contamination in their handling….

What’s troubling is the recurrence of such outbreaks in recent years. Contaminated meat used to be deemed the big threat, but strict regulation and strong industrial efforts have reduced that risk considerably.”

The Times editorial writer is correct.  E. coli in meat is down and down substantially.  A recent report (2005) released by the CDC, in collaboration with the FDA and USDA showed important declines in foodborne infections due to common bacterial pathogens in 2004.  From 1996-2004, the incidence of E. coli O157:H7 infections decreased 42 percent.

In my law practice I have seen these statistics in action.  From the Jack in the Box outbreak of 1993 until the 19 million pounds of hamburger recalled by ConAgra in 2002, nearly 100 percent of my clients, mostly kids who had suffered or died from an E. coli illness, had contracted E. coli infections from eating hamburger. E. coli cases tied to hamburger still do exist, but most of the E. coli cases we see now have been tied to consumption of fresh vegetables such as sprouts, spinach, lettuce, parsley, and now green onions. I guess the meat industry took my challenge in 2002 when I argued on the editorial page of the Denver Post to “Put me out of business – Please.”

Although I would like to think that the nearly $250 million I have taken from the food industry has changed behavior, I do not think that is entirely accurate or fair. In thinking about why the meat industry has been successful in poisoning consumers less and getting sued by me less I recalled an article entitled “The Bug That Ate The Burger – E. coli’s Twisted Tale of Science in the Courtroom and Politics in the Lab” by Emily Green of the Los Angles Times from June 2001.

What we need is Michael Taylor, who was head of USDA’s Food Safety Inspection Services during and after the Jack in the Box outbreak in 1993, when 650 people were sickened and 4 children died. According to the Times article:

Taylor’s first move was legal. Invited to speak at an American Meat Institute conference in San Francisco, he announced, “To clarify an important legal point, we consider raw ground beef that is contaminated with E. coli O157:H7 to be adulterated within the meaning of the Federal Meat Inspection Act.” What the day before had been a naturally occurring bacterium now had outlaw status, the same as glass or rodent filth. It was a signal, says Taylor, that “things were going to be different and there was going to be accountability.”

Taylor did not stop there.

Businesses that lagged behind were strong-armed by yet more Taylor legislation: mandatory implementation of HACCP (pronounced “hassip,” Hazard Analysis Critical Control Point), a risk management system developed for NASA. In came carcass washes, citric acid treatments, steam pasteurization, air exchange systems and all manner of sterilizing treatments. All U.S. meat processors now either contract routine services of a lab or have an in-house microbiologist.”

So, bring back Michael Taylor or, at a minimum, make it clearer that E. coli O157:H7 on fresh produce is an “adulterant” and that there is “zero tolerance” for this nasty bug to be on the produce that we consume.  The produce industry must willingly or by regulation institute comprehensive HACCP to assure restaurants and consumers that produce is safe.

Lettuce, spinach, and green onions should not kill you. They should not cause kidney failure. The produce industry must do what the meat industry has done.  Frankly, there have been too many produce outbreaks already.  According to Bloomberg News the number of sick people may well be over 200.  To the produce industry – don’t let the “bug that ate the burger” eat your business.  Protect yourself from yourself, clean up your act, stop poisoning your customers, and you too will “put me out of business – please.”

Bill Marler
is the managing partner in the law firm Marler Clark L.L.P., P.S.  Since 1993, Mr. Marler has represented thousands of victims of E. coli, Salmonella, Hepatitis A, Listeria, Shigella, Campylobacter and Norovirus illnesses in over forty States.

Food poisoning lawsuits against companies responsible for introducing E. coli-contaminated food into our food supply have become the focus of Bill’s professional career as an attorney.  Bill’s first client sickened by E. coli O157:H7 was nine-year-old Brianne Kiner, who fell ill after eating a contaminated hamburger during the now-infamous Jack in the Box E. coli outbreak in 1993.  Bill negotiated a $15.6 million settlement for Brianne’s injuries, a record in the State of Washington for personal injury cases.  He resolved several other cases from the Jack in the Box E. coli outbreak for over $2.5 million each.

Bill, now known as the “E. coli lawyer,” has since represented thousands of people sickened or killed in outbreaks of E. coli O157:H7 and other foodborne pathogens, including Salmonella, Hepatitis A, Shigella, Campylobacter, Norovirus, and Listeria.  In 1998, he negotiated a reported $12 million settlement for the families of children who fell ill after drinking E. coli-contaminated apple juice sold by Odwalla; and in 2001, a jury awarded the families of eleven children Bill represented $4.6 million for the injuries they received during an E. coli outbreak traced to school lunch served at Finley Elementary School in Finley, Washington.  He also resolved dozens of E. coli cases in 2003 related to one of the largest meat recalls in United States.  Bill recently settled an E. coli case for a young girl for $11 million.

Bill is currently representing half of all victims from the recent spinach E. coli case and has represented hundreds of those injured after consuming contaminated produce over that last five years.  He filed suit against Taco Bell yesterday in Pennsylvania Federal Court and has been contacted by over 20 others sickened by E. coli in this most recent green onion outbreak.