The NICD published its most recent report on the deadly Listeria outbreak. Fortunately, it is winding down at the polony was pulled from shelves.  However, the NICD warns that not all polony has been recalled, and due to the long incubation period for Listeria, case could still be counted for some time.

It was a wide-spread outbreak.

The outbreak greatest impact was on babies less that 28 days of age and people in the 15 – 49 years of age.

Listeriosis outbreak situation report_22April 2018_fordistribution

I assume that the fellow that left this comment on my post of yesterday “Why I work weekends” is a real person who is actually in charge of “the Food Safety programs of two grower/shippers of fruit and produce.”  I bet your buyers – consumers, restaurants or retailers, feel great about the vote of confidence in your product.

Setting aside for a moment how Chad may feel about lawyers, do you really think the appropriate response to someone who buys a salad at a place like Panera or buys a package of “triple-washed” chopped, bagged romaine at a grocery store, and becomes sick due to E. coli O157:H7 and develops HUS is, sorry, “shit happens?’

Sorry, that is not acceptable.  If you put a defective product – yes, E. coli O157:H7 is a defective product – into commerce and you harm someone, you are responsible.  To suggest otherwise, especially in these circumstances is legally and morally wrong.

It is the attitude of it’s “Nature’s fault” that leads to complacent finger-pointing at consumers.  Are consumers supposed to wash the lettuce they are served at a restaurant?  Do we really expect a busy homemaker (man or woman) to wash the washed chopped bagged salad they picked up at the grocery store?

Here is his comment in full, unedited:

chad gress

“I promised the distraught father that I would take care of his kid and find the grower, shipper, processor and retailer (honestly, I know most of the chain already and the rest will flip shortly – perhaps I should offer a reward?) that did this to his daughter.“

NATURE did this to his daughter. Was it facilitated by a breakdown in safe growing, harvesting and/or processing practices by one or more companies in the chain of custody? Perhaps. But that is yet to be determined.

I am responsible for the Food Safety programs of two grower/shippers of fruit and produce. I hate hearing about people suffering because they made a healthy choice to eat fresh produce. And being a father, I sympathize with anyone who’s child becomes sick or dies as a result of exposure to a food-borne pathogen. But I am all too aware that, despite our best efforts to protect the consumer by proactively reducing the potential for cross contamination during the growing and harvesting stages, it is not possible to eliminate the potential for contamination. Without a kill step, fruits and vegetables have always and will always be susceptible to contamination.

To tell a father that you are going to find out who “did this to his daughter” without knowing all the facts is irresponsible and misleading. I support taking legal action against companies who demonstrate negligence in thier duties towards the health and safety of the public. It seems the only way to effect change is to go after their wallets. But for so many of us in the produce industry doing our reasonable best to grow and ship a product that is safe for human consumption, being portrayed as “villians” in these scenarios is just ethically wrong.

Produce is grown outdoors, in nature, exposed to countless sources of contamination, the most dangerous of which are microorganisms that are invisible to the human eye, extremely adaptable and likely more resilient than we currently understand them to be. We are constantly performing risk assessments to identify potential weak points in our Food Safety Programs, and modifying our procedures so they reflect the most current science-based metrics. We are conscientious and diligent. And yet, we will never be able to eliminate the risk of our produce being a source of food-borne illness.

And so we will continue to be the targets of litigation, and attorneys will continue to use the type of language that you did with thier clients and the public, encouraging them to file lawsuits against everyone who touched the product. Eveyone who “did this to thier daughter”.

If you can not make mass produced produce safely – don’t sell it.  If you sell it and sicken some 11 year old girl whose only crime was to order a salad at Panera, then step up and be responsible for what happened to her.

And Chad, since I posted “Why I work weekends” – I have been retained by the family of a 16-year-old girl with HUS who just was released from ICU and the mother of a 6-year-old boy who was just hospitalized in the last few days and has early stages of HUS.  Would you like to tell them, that is just nature’s way?

I remember the first time I traveled outside the US, I got a series of vaccine – including a Hepatitis A vaccine.  I do not recall ever seeing a warning about travel within the US – go figure.

Indiana health officials are advising residents to get vaccinated for hepatitis A if their summer plans include visits to Kentucky or Michigan.

The Department of Health says significant outbreaks of the liver-damaging hepatitis A virus have been reported in Kentucky and Michigan.

The agency says Kentucky has seen more than 300 cases of the highly contagious viral infection, including three deaths, most of those in the Louisville area. Michigan has had more than 800 cases, including 25 deaths.

Indiana typically sees less than 20 hepatitis cases each year, but 77 have been confirmed since January.

State Epidemiologist Pam Pontones says getting vaccinated for hepatitis A and thoroughly washing hands when preparing food are “simple, safe and effective ways” to prevent the spread of hepatitis A.

Likely not so good for tourism?

I was up at 4:00 AM this morning to communicate with my colleagues in South Africa about the Listeria outbreak that has sickened over 1,000 – killing almost 200.  I hope that the team at Marler Clark can bring our 25 years of experience to help these people and to try and limit something like this from every happening again (one paralegal is heading there next week and Bruce is heading there in early June).

As I was thinking about heading back to bed to wait for the sun to come up, my cell phone rang – It was the father of a 13 year old girl still on dialysis over three weeks after eat chopped romaine tainted with E. coli O157:H7.  I promised the distraught father that I would take care of his kid and find the grower, shipper, processor and retailer (honestly, I know most of the chain already and the rest will flip shortly – perhaps I should offer a reward?) that did this to his daughter.

I was about to head back to bed – sun was not yet up – when this popped up on social media:

This man represented our case in the Peanut Corp peanut paste Outbreak of 2008. Christopher was the sickest child. Bill brought to me sanity at a time when Chris was still recovering and I was working in an inept way with the Dept of Health to sort of track down how and why Chris got so sick from something he ate. I had been upset, baffled and puzzled for 2 months until I met Bill Marler. He immediately took me and our family’s situation under his wing. He educated me and advocated for us. He created sanity for something that had been chaotic. Bill was my light. As a Mom, none of what had happened made any sense until I met Bill. Bill gave me a voice through national media to help others and educate others based up my experience. This entire outbreak which killed too many and sickened hundreds and probably thousands, if truth be told, was not handled efficiently at all. Bill helped me to get involved on a National level to advocate change in Food Safety laws. Through his efforts and others like STOP and PEW, we were able to finally push legislators to update the antiquated food safety laws and FSMA was finally passed and signed into law in January 2011. A monumental change to update how US food moves through the supply chain. Bill was quietly behind all of it.

Bill filed the first law suit against PCA on my Christopher’s behalf. Bill then quietly supported the victims efforts (as well as PEW) to bring justice to the company that knowingly poisoned the American public through 5,000 products their paste was sold in. And three years ago I was able to be part of the sentencing of the company’s executives and managers, and I was able to tell the judge my story/Christopher’s story and stare the responsible man in the face who was ultimately responsible. Justice was served that day. It had been a long long road.

Bill Marler you will always have a place in my heart. America is lucky to have a man like you out there fighting for what is right.

I think I’ll stay up and go to work.

First off, “shout out” to the eight prisoners at Anvil Mountain Correctional Center in Nome Alaskathat ate tainted whole-head romaine from an unnamed grower in Yuma Arizona. Your illnesses are tightening the likelihood that a grower will be implicated.

Second, I feel bad for the California romaine growers who are being hit by the ambiguity of the following warnings.

The FDA and CDC have both updated consumer warnings that in my view :

FDA:

The U.S. Food and Drug Administration, along with the Centers for Disease Control and Prevention (CDC) and state and local partners, are investigating a multistate outbreak of E. coli O157:H7 illnesses.

On April 19, 2018, Alaska health partners announced that several people in a correctional facility are infected with the outbreak strain of E. coli O157:H7. These individuals ate whole-head romaine lettuce from Yuma, Arizona. Based on this new information, the FDA is advising that consumers avoid all romaine lettuce from Yuma, Arizona. If you cannot determine the source of your romaine lettuce, throw it away and don’t eat it.

CDC:

What’s New?

Based on new information, CDC is expanding its warning to consumers to cover all types of romaine lettuce from the Yuma, Arizona growing region. This warning now includes whole heads and hearts of romaine lettuce, in addition to chopped romaine and salads and salad mixes containing romaine. 

Do not buy or eat romaine lettuce at a grocery store or restaurant unless you can confirm it is not from the Yuma, Arizona, growing region.

Unless the source of the product is known, consumers anywhere in the United States who have any store-bought romaine lettuce at home should not eat it and should throw it away, even if some of it was eaten and no one has gotten sick. Product labels often do not identify growing regions; so, throw out any romaine lettuce if you’re uncertain about where it was grown. This includes whole heads and hearts of romaine, chopped romaine, and salads and salad mixes containing romaine lettuce. If you do not know if the lettuce is romaine, do not eat it and throw it away.

Restaurants and retailers should not serve or sell any romaine lettuce from the Yuma, Arizona growing region.

The expanded warning is based on information from newly reported illnesses in Alaska. Ill people in Alaska reported eating lettuce from whole heads of romaine lettuce from the Yuma, Arizona growing region.

You have to wonder if the FDA named the Yuma grower and when that grower stopped production that the warning to not eat romaine lettuce from Yuma would have a bit more meaning.

Seattle U Lawyer: By Claudine Benmar, April 18, 2018

Bill Marler ’87 takes calls about foodborne illness from clients around the country. 

This year marks the 25th anniversary of a massive E. coli outbreak, which hit 73 Jack in the Box restaurants in Washington, Idaho, Oregon and California; sickened 700 people; sent 171 to the hospital; and killed four. The anniversary is a somber but noteworthy milestone for accomplished food safety attorney Bill Marler ’87.

“It’s the 25th anniversary of the outbreak, but it’s also the 20th anniversary of our law firm,” he said. Seattle-based Marler Clark, which he co-founded with fellow Seattle University School of Law alumnus Bruce Clark ‘84, was the nation’s first law firm to focus solely on helping victims of foodborne illnesses and grew directly from both attorneys’ experience with the 1993 outbreak.

As milestones like this come and go, Marler, who recently turned 60, wonders whether it’s time to retire. A few of his colleagues from the law firm’s early days have already done so.

“But I really love my job,” he said. “I get to make a huge difference in people’s lives, people who have lost their kidneys, lost their large intestines, are brain-injured, families that are facing millions and millions and millions of dollars in medical expenses, or a husband who’s never going to work again. And I get to help them. That’s a reason to get up and go to work every day.”

In the last two decades, Marler Clark has been involved in the aftermath of every major and minor outbreak of foodborne illness in the United States, working not only with victims but also with scientists and public health officials to make the food supply safer. Author Jeff Benedict, who chronicled the Jack in the Box story in his 2011 book, “Poisoned,” wrote that “no individual has had more influence on the shape and direction of food safety policy in the U.S.” than Marler.

Back in 1993, just a few years out of law school, he became the lead lawyer for the plaintiffs through an effective combination of hustle, hard work, personal connections, and media savvy.

His first E. coli client was a Tacoma family referred to him by a woman he had helped with a worker’s compensation claim. He rushed from his office in downtown Seattle to his old law school hangout in Tacoma (the law school was formerly affiliated with University of Puget Sound), the Poodle Dog Restaurant, met with the family, and convinced them to hire him.

“I went from obscurity to being sort of the legal face of the outbreak. I went from having one client to five clients to 10 clients to hundreds,” he said. Two years into the class-action lawsuit, when the end was finally in sight, Marler settled $25 million worth of cases in two days of mediation.

Most notably, he secured a $15.6 million settlement – the largest of its kind at the time – on behalf of Brianne Kiner, the Seattle girl who was the most severely injured victim of the outbreak, which was traced to undercooked hamburgers at 73 Jack in the Box restaurant locations. Just 9 years old, she spent several weeks in a coma, followed by a long and painful recovery. She still struggles with lifelong health effects such as infertility, asthma, and diabetes.

When the case concluded, Marler figured he would return to a general personal injury practice, possibly specializing in medical malpractice. But then another E. coli outbreak hit, again centered in Washington state. In 1996, a tainted batch of apple juice, from a juice company called Odwalla, killed one toddler and sickened 66 people. The families called Marler for help, thanks to his high profile in the Jack in the Box litigation.

“It really was at that point that I thought, ‘Hmm, clearly people think I know what I’m doing,’” Marler joked. “But candidly, I had worked really hard. I knew the law and I knew the medicine really well. I started wondering if you could create an entire practice around this.”

You could. Or rather, he could. Marler and Clark partnered with lawyers Denis Stearns and Andy Weisbecker to create the firm in 1998. (Both Clark and Stearns essentially switched sides, having represented Jack in the Box during the earlier litigation.) Two of the firm’s most recent hires are also Seattle U Law graduates – Anthony Marangon ’15 and Josh Fensterbush ’17. Stearns and Drew Falkenstein ’02 are of counsel at the firm.

Over the years, Marler has secured more than $600 million for victims of E. coli, salmonella, and other foodborne illnesses. While lawsuits often spur companies to make important changes – Jack in the Box developed the industry’s toughest safety standards after its outbreak – Marler knows there’s more to it than litigation. So he also devotes his energy and expertise to advocate for stronger food safety laws and regulations.

He petitioned the U.S. Department of Agriculture to better regulate pathogenic E. coli and successfully advocated for the passage of the 2010-2011 FDA Food Safety Modernization Act. He has spoken to countless industry groups and journalists, established science scholarships, and written extensively on all manner of foodborne pathogens.

What motivated Bill Marler back in 1993 is what continues to motivate him today. Many people who suffer the most from foodborne illness are children, and the money he earns for them is intended to take care of them for the rest of their lives.

Marler has three daughters of his own – one is a graduate of Seattle University and two are current students. The oldest was just an infant when he took on Jack in the Box.

“When you’re representing little children and you see how injured they are,” he said, “it doesn’t take much to look at your own kids and realize just how important your job is.”

I think that may have been a commercial jingle from the 60’s?

Last night I talked about the eight people locked up together eating the same romaine lettuce at the same time being an epidemiologist’s dream – especially when those eight people are linked to some 50 illnesses linked to romaine lettuce in the “lower 48.”  You can be assured that the purchasing office will know who supplied the romaine and that supplier will most assuredly know who processed the romaine and that processor likely knows who grew it in Yuma, Arizona – case closed.

According to a press release, Alaska state officials are responding to an outbreak of acute gastroenteritis caused by Escherichia coli (E.coli) O157:H7 bacteria in the Anvil Mountain Correctional Center in Nome. Eight confirmed cases have been identified to date. The recently discovered cases appear to be connected to a nationwide E. coli outbreak affecting at least 53 persons in 16 states and linked to romaine lettuce grown in Yuma, Arizona.

The FDA has warned retailers, restaurants, and other food service operators should not sell or serve any chopped romaine lettuce from the winter growing areas in Yuma, Arizona.

For consumers the FDA suggested that they should ask retailers where their romaine lettuce was sourced from and not eat or buy chopped romaine lettuce from Yuma, Arizona, and if you have already bought products containing chopped romaine lettuce, such as bagged salads, salad mixes or prepared salads, throw them away and do not eat them.

However as of yesterday , the FDA did not have information to indicate that whole-head romaine lettuce or hearts of romaine have contributed to this outbreak.

Now, apparently the Alaska department of corrections purchasing office know not only who supplied the romaine, but also who grew it and in what form.  So, as I said, “Who grew the Salad?”  And, was it just “chopped romaine lettuce” or was the lettuce to Alaska “whole-head romaine lettuce?”

Fresh from CDC https://www.cdc.gov/ecoli/2018/o157h7-04-18/index.html

  • Based on new information, CDC is expanding its warning to consumers to cover all types of romaine lettuce from the Yuma, Arizona growing region. This warning now includes whole heads and hearts of romaine lettuce, in addition to chopped romaine and salads and salad mixes containing romaine.
  • Do not buy or eat romaine lettuce at a grocery store or restaurant unless you can confirm it is not from the Yuma, Arizona, growing region.
  • Unless the source of the product is known, consumers anywhere in the United States who have any store-bought romaine lettuce at home should not eat it and should throw it away, even if some of it was eaten and no one has gotten sick. Product labels often do not identify growing regions; so, throw out any romaine lettuce if you’re uncertain about where it was grown. This includes whole heads and hearts of romaine, chopped romaine, and salads and salad mixes containing romaine lettuce. If you do not know if the lettuce is romaine, do not eat it and throw it away.
  • Restaurants and retailers should not serve or sell any romaine lettuce from the Yuma, Arizona growing region.
  • The expanded warning is based on information from newly reported illnesses in Alaska. Ill people in Alaska reported eating lettuce from whole heads of romaine lettuce from the Yuma, Arizona growing region.

Eight people locked up together eating the same romaine lettuce at the same time is an epidemiologist’s dream – especially when those eight people are linked to some 50 illnesses linked to romaine lettuce in the “lower 48.”  You can be assured that the purchasing office will know who supplied the romaine and that supplier will most assuredly know who processed the romaine and that processor likely knows who grew it in Yuma, Arizona – case closed.

According to a press release, Alaska state officials are responding to an outbreak of acute gastroenteritis caused by Escherichia coli (E.coli) O157:H7 bacteria in the Anvil Mountain Correctional Center in Nome. Eight confirmed cases have been identified to date. The recently discovered cases appear to be connected to a nationwide E. coli outbreak affecting at least 53 persons in 16 states and linked to romaine lettuce grown in Yuma, Arizona.

The state departments of Health and Social Services, Environmental Conservation, and Corrections are working together to investigate and control the outbreak.

Symptoms of E. coli O157:H7 infection include bad stomach cramps, diarrhea (often bloody) and vomiting. Occasionally, more serious complications can occur, including kidney failure and death. Alaskans should talk to a health care provider if they have symptoms of E.coli infection. Cases should be reported to the Department of Health and Social Services by calling (907) 269- 8000.

The investigation has confirmed that the romaine lettuce consumed by the Nome patients was grown in Yuma, Arizona. Because this outbreak involves a strain of E. coli bacteria (O157:H7) that can lead to serious illness including kidney failure, state officials are asking Alaskans to follow CDC recommendations and avoid any romaine lettuce products that could be contaminated.

Restaurants, retailers and consumers should ask suppliers about the source of their lettuce, and if it is from Yuma, Arizona, it should be thrown away and not eaten. This includes both whole head and chopped romaine lettuce.

No additional cases have been identified in Alaska outside of the Anvil Mountain Correctional Center. None of the eight patients identified in the Alaska outbreak have been hospitalized and none have died. Investigations are ongoing, and DHSS will provide updates when more information is available.

As of April 18, 2018, 53 people infected with the outbreak strain of E. coli O157:H7 have been reported from 16 states. Alaska 1, Arizona 3, California 1, Connecticut 2, Idaho, 10, Illinois 1, Louisiana 1, Michigan 2, Missouri 1, Montana 6, New Jersey 7, New York 2, Ohio 2, Pennsylvania, 12, Virginia 1 and Washington 1.

Illnesses started on dates ranging from March 13, 2018 to April 6, 2018. Ill people range in age from 10 to 85 years, with a median age of 34. Seventy percent of ill people are female. Thirty-one ill people have been hospitalized, including five people who developed hemolytic uremic syndrome.

Illnesses that occurred after March 29, 2018, might not yet be reported due to the time it takes between when a person becomes ill with E. coli and when the illness is reported. This takes an average of two to three weeks.

State and local health officials continue to interview ill people to ask about the foods they ate and other exposures before they became ill. Forty-one (95%) of 43 people interviewed reported eating romaine lettuce in the week before their illness started. Most people reported eating a salad at a restaurant, and romaine lettuce was the only common ingredient identified among the salads eaten. The restaurants reported using bagged, chopped romaine lettuce to make salads. At this time, ill people are not reporting whole heads or hearts of romaine. Information collected to date indicates that chopped romaine lettuce from the Yuma, Arizona growing region could be contaminated with E. coli O157:H7 and could make people sick.

Bill Marler, the E. coli lawyer, shot for Trial Magazine in Seattle, WA

Trial Magazine April 2018  – Bill Marler interview, by Kate Halloran

Attorney Bill Marler of Marler Clark in Seattle has dedicated his career to representing people injured by foodborne illness and to advocating for better food safety regulation. Trial spoke with him about what’s challenging about these cases, common misconceptions, and what more needs to be done to protect consumers.

How did you get started in food safety?

My first experience with food safety litigation was the 1993 Jack in the Box E. coli outbreak, which was linked to the fast-food chain’s meat. More than 700 people were sickened, with hundreds hospitalized—dozens with acute kidney failure—and four children died. It was one of the first major foodborne illness cases that happened in the United States.

A woman I had done some legal work for called me, and she asked if I would meet with a friend of hers whose kid was in the hospital with E. coli. I met with the family, and I filed the first lawsuit against Jack in the Box that week. I didn’t even know what E. coli was, frankly. I gathered information from the University of Washington’s medical school to get up to speed.

Very quickly, I went from having a handful of cases to being lead counsel for more than 400 cases that were filed in several states against the restaurant. By the time Jack in the Box started settling cases, I probably knew more about E. coli than one would ever want to. Shortly after that, there was an outbreak linked to unpasteurized juice sold by Odwalla, and I started working on those cases. After that, I decided to start my own firm, and I hired Bruce Clark, who had been chief counsel for Jack in the Box. Now all we do is handle food cases nationwide.

What are some of the most significant changes you’ve seen resulting from food safety litigation?

I think that, like a lot of lawyers who do products cases, the hope is that litigation leads to structural changes in whatever industry you’re going after, and I think for the most part it does. From the 1990s to early 2000s, most of our work involved E. coli cases linked to hamburger; now that is nearly zero. The positive changes—more testing, more interventions to prevent contamination—have led to a safer meat supply.

But I became frustrated by the pace of change, so I started doing more advocacy work. I started speaking to consumer, public health, and industry groups. And by then, unfortunately, I had a lot of stories about severely injured children, pregnant women, and elderly adults and how devastating foodborne illness can be.

I became very involved with the political side of food safety, including the run-up to the Food Safety Modernization Act, which was signed by President Obama in 2011. It established a variety of new regulations for food manufacturers and importers to ensure product safety through controls, testing, and sanctions. That law was a multiyear effort by consumer and industry groups, lawyers, and clients who testified in front of Congress.

I also have seen a lot of changes in how the U.S. Department of Agriculture (USDA) regulates food, primarily meat. And that is due to a combination of litigation and regulatory pressure—making companies do the right thing, whether for economic or moral reasons.

With the FDA, which regulates most of our food supply, we’re starting to see some positive impact from recent regulations that cast a wide net over all FDA-regulated products to ensure that they are manufactured to enforceable standards that are likely to reduce foodborne illnesses. We’ve seen a downturn in salmonella and E. coli cases linked to leafy greens, which were common 10 years ago.

What food safety issues are you seeing become more common?

Imports are becoming a bigger part of my cases—not necessarily because imported food products are inherently dangerous, but because the increase in the volume of imported food means that more tainted food cases are coming from imports. That creates additional legal challenges because you can’t necessarily sue a supplier or manufacturer in China. There are some real opportunities for regulation to help. We still can hold importers and retailers responsible for contaminated food from overseas.

And we’re seeing outbreaks happening with unexpected foods. For example, we’re representing people who were sickened by a soy nut butter E. coli outbreak, including an 11-year-old boy who was hospitalized for months in the ICU, lost his large intestine, suffered severe brain and kidney injuries, and is learning how to walk again. These are significant and serious cases from a food product that you wouldn’t necessarily expect to cause injury.

What are the strengths and weaknesses of the consumer alert and recall process for contaminated food?

I’m a big fan of recalls and product testing that prompts recalls. Like litigation, testing and recalls are a market-driven exercise. Companies tend to try to find a way to fix a problem so they don’t have to spend money on it. We saw this during the mid-to-late ’90s when it was common to see hamburger recalls on a weekly basis because companies were testing their products and finding E. coli, so they had to recall them. Then, to prevent recall costs, they started testing and holding the product, so it wouldn’t even get into the marketplace; or they’d test it and divert it to be a cooked product to kill the bacteria. The number of E. coli cases from hamburger dropped like a stone.

But there are some odd delineations between USDA and FDA when it comes to food safety. USDA regulates meat, except fish (other than catfish). FDA regulates everything else—fruits, vegetables, and fish primarily, as well as baked goods and similar processed foods. The FDA rules are pretty clear: If food has a pathogen in it that can make you sick, then it’s an adulterated product. But for USDA, if chicken in a grocery store has salmonella on it, the agency may not consider it to be adulterated until the chicken can be proven as the source of an illness—then that would prompt a recall. And there are some recall rules that relate to E. coli but not salmonella—even though both make people sick.

But one thing that USDA does when there’s a recall is tell you the entire chain of distribution—who produced the item and where it went. The FDA does not. When the FDA recalls something, it names the manufacturer, but it doesn’t tell you where the products went. The soy nut butter product I mentioned before was recalled in March 2017, but we’re still finding it for sale online and in grocery stores. To me, that’s a real failing of the FDA not to look at the system from manufacturer through where people buy the product and make the public aware of what’s going on.

As the local food movement and farmers’ markets have become popular, has that changed where you’re seeing problems in the food supply?

That’s a difficult question to answer. The reason why is that most people who get a foodborne illness never figure out what made them sick. Even when there are clusters of ill people, they seldom link it to a particular food item, restaurant, or manufacturer. It is very difficult, and it’s what we spend most of our time figuring out. We figure out causation, and then we can do something. But we turn away 90 percent of prospective cases because causation is unclear.

That helps explain part of the issue with local or regional outbreaks. Multistate outbreaks are much easier to put together because then you can pinpoint common denominators among people. The farther apart people are, the more likely it is you’ll be able to find a common thread. But with just a couple of people in the same city, it may be too difficult to untangle the common denominator—or there may not be enough data available to make that determination.

Because the incubation period of different bacteria can vary from hours to weeks, the smaller the operation, sometimes the more difficult it may be to pinpoint the food item that made someone sick. And that’s important­ because if you looked at it, you’d say, “Clearly local agriculture’s not poisoning anybody.” But that would be a false assumption. It’s most likely that it is but on a smaller scale and so the statistics don’t necessarily implicate it. Bacteria don’t care whether you’re a big producer or a small producer—they’ll sicken your customers regardless. That’s why good food handling and manufacturing practices are essential.

What are some of the risk factors for foodborne illness outbreaks?

When you delve into it, you still see companies that have bad manufacturing processes and practices. A lot of it has to do with cooking and cleanliness. A product that’s not cooked is a bigger risk than a product that’s cooked because most bacteria and viruses are killed by cooking. If you have a product that’s heated well, it’s unlikely that you’ll have a foodborne illness outbreak.

Foods that are eaten raw and don’t have what’s called a “kill step,” such as lettuce, can be a riskier food item to the consumer. That’s why certain kinds of cheeses and deli meats—foods that are consumed without cooking them again—shouldn’t be eaten by certain groups, such as pregnant women, because there’s a risk of listeria. Unpasteurized juices, unpasteurized milk, oysters—foods that are close to the environment where contamination can occur and then are eaten raw tend to be more risky.

That’s why fresh fruits and vegetables, while important for human consumption, need to be washed and handled properly. You may not necessarily rid the food product of all contaminants, but you’re knocking down the bacterial load to the point that your body can handle it. If you consume 10 E. coli bacteria, it’s likely that your body will be able to ignore it. But if you ingest 100 bacteria, that might be enough to overwhelm your system and make you sick—and in some instances, really sick.

A lot of foodborne illness tends to have worse effects on the elderly, children, immune-compromised people, and pregnant women. Unfortunately, if you look at the size of the vulnerable population, it’s a big chunk of America. These people are the most vulnerable to becoming ill and the ones most likely to have severe reactions—kidney failure, long-term complications, or death.

What is the biggest challenge when helping clients in different states seek recovery for injuries from a foodborne illness outbreak?

I often deal with cases following an outbreak in different states that may have the same liability and causation law, but they have differences in damages law. I remember a listeriosis case when we represented 30 people and families of people who died from eating cantaloupe, and they were in 15 different states. A person in Oklahoma’s damages were capped at $150,000, while for pretty much the same person in Montana, there was no cap—and so the damages would be much more. Even in cases with severe injuries, state legislatures limit legitimate compensation for people, and it’s obviously unfair.

People can be exposed to some of the same bacteria that cause foodborne illness through environmental contamination, such as at a water park or other public recreation area. What are typical issues in these cases?

In food cases, it’s a product that you’re consuming that causes the illness, so you’re dealing with strict liability laws, which most states have. Once you’re able to prove that the product caused the injury, it’s really game over and becomes about damages. In environmental contamination, such as at water parks, swimming holes, or petting zoos, that falls in the negligence category. Whether it is a petting zoo that didn’t have adequate handwashing stations to reduce the risk of transmitting bacteria from the animals or a water park that wasn’t chlorinating or filtering the water appropriately, you need to find some act of negligence that caused the outbreak. That tends to be a much larger but not insurmountable challenge.

What are the most common misunderstandings you see about foodborne illness?

The biggest misunderstanding in food cases is the science behind incubation periods. Everyone’s convinced it was the last thing that they ate. It may well be something you ate two or three days ago. For example, I get a lot of calls from both victims and lawyers who say they or their client ate here and an hour later got sick with E. coli. Well, that isn’t the case because the incubation period between the time of ingestion and first symptoms is three to four days.

When evaluating a case, it’s always important to find out if the potential client had medical treatment and whether a stool culture or blood culture was done so you know what bacteria it is and have a fairly good understanding of what the time frame is—you’re looking for a common denominator. Figuring out what caused the illness is one of the major challenges.

The other big misunderstanding for consumers and even more so for businesses is that some of these cases can lead to devastating injuries. I’m representing a 19-year-old girl who has her whole life ahead of her, and she ate chicken salad that was tainted with E. coli. She spent four months in the hospital, had her large intestine removed, suffered multiple seizures, and her kidneys failed. Fortunately, she was able to get a kidney transplant—but kidneys last 10 to 15 years, and then you need another transplant. People don’t realize that foodborne illness can cause such severe, life-changing injuries.