Food Poisoning Lawyer & Attorney : Marler Clark : Food Poison Blog

Someone we learned much from about government taught us that, for better or for worse, there are certain periods of time when things happen in near silence.   At the end of every year, from Thanksgiving through New Year's, many decisions without much notice or attention.  This occurs in every statehouse, courthouse, and city hall across the land.

The final days of every Presidency is also such a time.   For all that is written about "lame ducks," the power of the Presidency is every much as complete in its last moment as its first.  In other words, the outgoing administration is not less powerful just because Congress and the media are distracted by the campaign.

The issue of timing came to our mind as soon as we heard of the U.S. Food and Drug Administration (FDA)'s long awaited decision to allow ionizing radiation for the treatment of fresh iceberg lettuce and fresh spinach.

Radiation would be used "for control of food-borne pathogens" and "extension of shelf life."

A petition for voluntary use of ionizing radiation of many foods was presented to FDA in the final days of the Clinton Administration by the Grocery Manufacturers Association. With no action on it after six years, the association amended their petition to focus on fresh lettuce and spinach.

Both lettuce and spinach were subjects of E. coli 0157:H7 outbreaks at the time the petition was amended, illustrating the need for a "kill step" for pathogens.

The trouble with making big policy decisions at these moments when nobody is looking is that nobody is vested in the outcome.

"I do not know anyone clamoring for it." said Scott Horsfall of California's Leafy Green Marketing Agreement.   "There has to be consumer acceptance. We do not know how big a hurdle that might be. The science needs to be looked at and the cost, too."

While industry has its doubts and reservations, consumer groups are downright hostile to radiation of food with one activist calling it an "expensive gimmick."

Gimmick or not, its an FDA final rule.  One that "does not individually or cumulatively have a significant effect on the human environment."  In early 2009, we will find out just want its effect on the political environment will be when the new President and new Congress begin going through their "in" baskets.

San Francisco Chronicle has good story here. 

 

 

 

 

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Guest Blog by Denis W. Stearns:

On October 3, 2002 I submitted a petition to the USDA in which I asked the agency to explicitly clarify whether a USDA policy that appeared to allow the deadly pathogen E. coli O157:H7 on so-called “intact meat” applied to meat sold to retail outlets like grocery stores and restaurants. Even now it is a near-universal practice for retail outlets to use this meat—commonly called “boxed beef” because the cuts of meat are individually shrink-wrapped and then boxed—to make ground beef. Sometimes the meat is directly used to make ground beef, and sometimes only trimmings are used—that is, the pieces left over after roasts and steak are cut and trimmed. Either way, there has never been any doubt that tens of thousands of grocery stores and restaurants use tons of intact meat every day to make ground beef. To my mind it makes absolutely no sense that the USDA would allow meat companies to sell intact meat contaminated with E. coli O157:H7. Why allow a loophole so large that it essentially moots USDA policy on this deadly pathogen?

Interestingly, the USDA responded to my petition with a letter from Philip Derfler, Deputy Administrator of the Food Safety and Inspection Service. In the letter, Mr. Derfler acknowledged that USDA policy was unclear, and stated that my petition would be treated as a public comment and referred to the Regulations and Directives Development Staff. That was six years ago, and USDA policy is less clear today than it was back then, and just as indefensible.

We are now in the midst of yet another outbreak of heartbreaking illnesses and likely deaths caused by contaminated meat that the beef industry claims the USDA authorizes it to sell. This claim is hardly new either. In 2004, the American Meat Institute and other meat industry trade groups fought all the way to the United States Supreme Court trying to overturn a Wisconsin Court of Appeals decision. The decision held that USDA policy on intact meat did not immunize meat companies from lawsuits based on allegations that E. coli-contaminated meat was unreasonably dangerous as a matter of state law. In other words, the meat industry was fighting for the right to sell E. coli-contaminated meat, claiming that USDA policy said that it could. It lost, but that did not prompt the USDA to change or clarify its policy.

Putting legal arguments aside, common sense alone clearly demonstrates why an exception for intact meat makes no sense. While the meat industry can cleverly argue that its intact meat is not intended for ground beef, and that cooking always makes it safe, neither statement is true. As the recent Nebraska Beef outbreaks make tragically clear, most intact meat does not reach consumers still intact. Furthermore, if each shrink-wrapped cut of meat had “DO NOT USE FOR GROUND BEEF; E. COLI O157:H7 PRESENT” printed in bold letters on it, there is not a grocery store in the country that would buy it. Indeed, commenting on the current outbreak, a representative of Whole Foods explained that it was using intact meat to make its own ground beef “in an attempt to assure quality and safety.” I guess the joke was on them then.

The current USDA policy on E. coli and intact meat is indefensible because it protects the interests of the meat industry instead of the public health. A policy that is based on the demonstrably false assumption that intact meat is not being used to make ground beef at a retail level is a policy that has no basis in fact or reason. It also entirely ignores the incredible risk of cross-contamination, which is what caused the 2000 outbreak at a Milwaukee-area Sizzler restaurant that killed one child and sickened scores of others. The Sizzler outbreak also recently resulted in a $7.1 million verdict against the same meat company that fought to the Supreme Court (with industry trade groups) for the right to sell the deadly stuff. Meanwhile, all these years later, the USDA says it is continuing to consider its options. Well, I have a suggestion: How about putting the interests of the public first for a change and sticking to a real zero-tolerance policy for this deadly pathogen?

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The U.S. Food and Drug Administration (FDA) is warning consumers against eating certain frozen cooked mussel products made by Bantry Bay Seafoods, imported from Ireland, because they may be contaminated with azaspiracid toxins, a group of naturally occurring marine toxins known to cause nausea, vomiting, diarrhea, and stomach cramps.

Azaspiracid toxins are odorless, tasteless, and cannot be destroyed or neutralized by freezing or cooking, including boiling. Individuals who have experienced gastrointestinal symptoms such as those noted above after eating any of the products listed below should consult their health care professional. Symptoms typically occur within hours of consumption and persist for two to three days.

In July, two people in Washington state became ill after eating the company's "Mussels in a Garlic Butter Sauce." FDA tested unopened product from the same production lot and found that it contained the azaspiracid toxins.

Consumers should throw out the following Bantry Bay Seafood frozen cooked products with "Best before end" dates ranging from January 23, 2009, to November 15, 2009:

* Mussels in a Garlic Butter Sauce
* Mussels in White Wine Sauce
* Mussels in Tomato and Garlic Sauce

The "Best before end" dates are displayed on the side of the box in the following format: MM:DD:YY. Products to be thrown out are marked with dates 01:23:09 through 11:15:09.

These products are sold frozen in 1 pound cardboard packages in stores throughout the United States.

The FDA also recommends that retailers and foodservice operators remove these products, and any food in which these products were used as an ingredient, from sale or service.

Azaspiracid toxins were an unknown marine toxin until 1995, when they were identified and linked to an outbreak of foodborne illnesses associated with consumption of Irish shellfish. The toxins have since been identified in other shellfish from the west coast of Europe. They have never been detected in shellfish harvested from U.S. waters.

 

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We always try and note when famous people become victims of food-borne illnesses.

Bollywood News and Gossip is reporting that singer, composer, pianist Adnan Sami is recovering from severe food poisoning after being rushed to a hospital.

According to Bollywood:

Bubbly singer-cum-composer-cum-pianist Adnan Sami was recently rushed to the hospital as he suffered from severe food poisoning.

His ill health forced him to miss out the music launch of Vikram Bhatt’s flick 1920, for which he is the composer.

 

 

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SEATTLE--(BUSINESS WIRE)--In just a year and a half, the American meat industry has experienced a whiplash of beef recalls. 40 million pounds of meat tainted with highly toxic E. coli O157:H7 has been publicly recalled, up by a staggering factor of two hundred from the 2006 amount of only 181,900 pounds.

“This is beyond the ‘wheels coming off’ of the meat supply system,” said food borne illness attorney William Marler. “It’s the entire train in a tangled heap. And the people caught in the train wreck are you and me and all of our neighbors. When reports say that there is a one in 400 chance that the package of ground beef you pick up at the supermarket will be tainted with a lethal bacterium, the food safety system is no longer functioning, and immediate, radical steps must be taken.”

In more than thirty recalls ranging from a few hundred to millions of pounds, the Food Safety Inspection Service (FSIS) has deemed E. coli contaminated meat a class I (one) health hazard to consumers. (A class I recall involves a health hazard situation in which there is a reasonable probability that eating the food will cause health problems or death.)

“There are many theories as to why there has been such an unprecedented jump in E. coli,” said Marler. “It could be regulatory complacency, better reporting, or immigration sweeps that have left slaughterhouses empty of skilled workers. Global warming may be spreading fecal dust. High oil prices may have led to an E. coli-producing diet for cattle. The microbe itself may even be evolving to elude capture. Another possibility is that the higher costs of slaughterhouse inputs (beef cattle) have collided with retailer’s low price pressures on outputs (hamburger) from those same slaughterhouses. These ideas need investigation and research, so that real change can begin.”

To advance that change, Marler reached out to the food safety community and asked for ideas from experts, scientists, regulators, and food agency brass. He distilled the volumes of submitted suggestions into ten action items (full text can be found here):

• Improve surveillance and reporting of bacterial and viral diseases.
• Require real training and certification of food handlers at restaurants and grocery stores.
• Stiffen license requirements for large farm, retail, and wholesale food outlets.
• Increase food inspections.
• Reorganize federal, state, and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts.
• Establish tax credits for companies with good food safety records, and greater legal consequences for sickening or killing customers with tainted food.
• Use our technology to make food more traceable.
• Promote university research.
• Improve consumer understanding of the risks of food-borne illness.
• Provide Presidential leadership on a topic that impacts every single one of us.

“There are a lot of very smart, very dedicated professionals in the food safety community,” Marler concluded. “They have spent their careers working toward a better food supply, and that collective knowledge is available to design and implement change. We need our leaders to get on board, and get the food safety train back on track.”

BACKGROUND: Marler Clark has represented thousands of victims of foodborne illness outbreaks since 1993. The firm’s attorneys have litigated high-profile food poisoning cases against such companies as ConAgra, Wendy’s, Chili’s, Chi-Chi’s, and Jack in the Box. Marler Clark currently represents thousands of victims of outbreaks traced to ground beef, peppers, pot pies, spinach, and peanut butter, as well as other foods. For further information contact Mary Siceloff at msiceloff@marlerclark.com or (206) 719-4705, or visit www.MarlerClark.com.

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Congress is taking its usual summer recess and there is precious little real legislative time left before they leave town for good to campaign to get their jobs back.   Nevertheless, it is not unusual to have the concepts and support for legislation to come together now and become spring-loaded for advancing through the new Congress that will convene in January.

That might be what we are looking at in a food safety bill introduced last week by powerful farm state Senator Tom Harkin, D-Iowa.  The bill is cosponsored by Dick Durbin (D-IL), Judd Gregg (R-NH), Richard Burr (R-NC), Chris Dodd (D-CT) and Lamar Alexander (R-TN).  The bipartisan group put out a joint press release.

“This country doesn’t need any more spectacles like the slow unfolding of FDA’s investigation of the recent Salmonella outbreak. The present system is not just a public health concern, but an issue for producers feeling the economic impact of food safety scares,” said Harkin. “This food safety bill gives FDA the authority it needs to prevent and respond to food safety problems, from requiring recalls, to setting food safety standards for fresh produce, to enhancing trace-back and surveillance of food-borne illness. It’s a win-win for producers and consumers.”

“When Americans go to the grocery store, the last thing on their mind should be the safety of the foods they are bringing home to serve their families,” Gregg stated. “The recent salmonella outbreak highlights the current vulnerability of our food supply and the need to modernize our food safety laws. We cannot afford to wait until the next food-borne illness outbreak or an intentional attack on our food supply occurs for Congress to act on this bipartisan legislation to ensure the safety of our food and restore confidence in the quality of these products for American families.”

Continue Reading...

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Just in time to ruin your summer vacation to Bar Harbor and other locations on the beautiful Maine coast comes this warning from our friends at the U.S. Food & Drug Administration (FDA):

Avoid eating tomalley in American Lobster (Maine Lobster), regardless of where the lobster was harvested, because of potential contamination with dangerous levels of the toxins that cause Paralytic Shellfish Poisoning (PSP).

American lobster, also known as Maine lobster, are harvested from the waters of the Atlantic Ocean from Northeastern Canada to South Carolina, inclusive.

The FDA advisory applies only to tomalley, the soft, green substance found in the body cavity of the lobster that functions as the liver and pancreas. Cooking does not eliminate the PSP toxins. However, studies have shown that, even when high levels of PSP toxins are present in lobster tomalley, lobster meat itself is typically unaffected.

Symptoms of PSP include tingling and/or numbness of the mouth, face or neck; muscle weakness; headache; and nausea. In extreme cases, when large amounts of the toxin are consumed, these symptoms can lead to respiratory failure and death. Symptoms usually occur within two hours of exposure to the toxin. Anyone experiencing these symptoms should seek medical attention.

For more, go to the FDA here.

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Here is a letter that I sent to all members of the US Senate and House Agriculture Committees

RE: Food Safety in the United States

Dear U.S. Congress Member:

I am writing to you because the American people are losing confidence in the U.S. government’s ability to keep our food supply safe.

As you know, there is presently an outbreak of a Salmonella strain known as Saintpaul that has made more than 1,250 people sick in forty-three states, put 228 in hospitals, and contributed to the deaths of two elderly men. It is the largest fresh produce outbreak in two decades. The source of the outbreak remains, in part, a mystery. A two-month-long federal investigation has been able to tell us only that jalapeño peppers (and possibly tomatoes and cilantro) are causing part of the outbreak.

However, the present multi-state E. coli O157:H7 outbreak is even more dangerous and demands the Agriculture Committee’s full attention. Omaha’s Nebraska Beef Ltd. has spread E. coli contaminated beef across the country to its various suppliers, all under the guise that existing USDA policy supposedly states that it is all right to sell tainted meat as long as it was ‘intact’ when it left the plant. So far, there are nearly sixty ill in Michigan, Utah, Georgia, New York, Indiana and Ohio. Some women in Georgia and Michigan have been in the hospital for over a month. 5.3 million pounds of meat has been recalled.

From 2003 until 2007, E. coli illnesses from fresh produce - spinach, lettuce, and sprouts - dominated my practice. After ConAgra recalled 19.3 million pounds of hamburger in 2002, I thought that E. coli in beef had been brought under control. In 2006, federal recalls involved just 181,000 pounds of meat, down from 23 million pounds in 2002. However, since the spring of 2007, we’ve seen an explosion of nearly 40 million pounds of beef recalled because it was contaminated with E. coli O157:H7. That’s nearly twenty thousand tons. Hundreds have been sickened and I am back in the beef business.

I fear we are at a tipping point. If this situation is allowed to further deteriorate, the public harm is going to be immeasurable – both in terms of lives damaged and businesses lost.

After the 1993 Jack-in-the-Box outbreak that killed four children and sickened nearly 700 in several states, the Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System. Based on the research and practices of the U. S. space program, the new risk management system established check points at every phase of meat processing. And more importantly, the presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act. It took years for those changes to be adopted and accepted, but progress - significant progress - was made. Until the spring of 2007, E. coli-related illnesses were falling and recalls became a rarity.

We need immediate and aggressive Congressional oversight and support of the Food Safety & Inspection Service of USDA, the U.S. Food and Drug Administration, and the Centers for Disease Control. Here are my suggestions for where Congress should focus its efforts:

Improve disease-surveillance so that we can better identify and trace what foods are making people sick. The frontlines of the medical community need to be encouraged to routinely test for foodborne pathogens and promptly report findings to local and state health departments and the CDC.

Government agencies, at all levels, need to learn to “play well together.” Turf battles like those we see between state health departments and the USDA need to stop so we can track illness to its source. Without effective traceback, companies are not held responsible, and thus have no incentive to stop selling tainted food.

Increase inspections. While domestic production remains a problem, imports pose an increasing risk, especially if terrorists get into the act. Food must be inspected before it enters our country, and we need more inspectors, better technology, and better training to do this effectively.

Reform federal, state and local agencies to be more proactive, and less reactive. This will require agencies to be properly funded, and also held accountable.

Modernize food safety statutes by replacing the present conflicting laws and regulations with one uniform food safety law that puts public safety first.

Increase legal consequences for causing foodborne illness and death. We don’t need to impose the death penalty, as China did recently. But we should impose serious consequences for companies who don’t do enough to keep their products safe, especially if they are repeat-offenders.

Use advanced technology to make food traceable from farm-to-table. Then, when an outbreak occurs, authorities can quickly identify the source, limit the numbers of people injured or killed, and stop the disruption to our economy.

Promote university research to develop better technologies to make food safe, and for testing foods for contamination.

Provide economic incentives, like tax breaks, to companies that push food safety, and invest in research and training.

Improve consumer understanding of the risks of food-borne illness.

I hope that you will act upon these recommendations. The 76 million Americans who suffer from food-borne illnesses annually—including 325,000 who require hospitalization, and the families of the 5,000 who die—would all be grateful.

Sincerely,

William D. Marler

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You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin. Ten to 50 will kill your child or your grandmother.

More likely due the expertise of Children’s Hospitals, and other top medical centers around the country, deaths at times are avoided, however, often not before Hemolytic Uremic Syndrome (HUS) nearly kills. HUS, a complication from an E. coli infection, can cause severe damage to kidneys, intestines, and pancreas. Falling into a coma and suffering further from cognitive impairment are all too common.

I’ve seen the inside of too many of those Intensive Care Units with families who are scared senseless as they watch their children or mother shutdown. For 15 years, this has been my world. When I was an undergraduate, I read Upton Sinclair’s, The Jungle. That book took the American public on a tour of the contaminated underbelly of the meat industry and they were sickened. It led to the Pure Food & Drug Act and the Federal Meat Inspection Act, versions of which are still in place today.

Until 1993, I thought—because of those laws—that the United States had a safe and secure food supply. But, then came the Jack-in-the-Box E. coli outbreak. It killed four, and sickened hundreds, including many who were gravely ill with HUS and related complications. Many of those victims became my clients.

Once again, there was a public outcry for safe meat. The Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System. Based on research and practices of the U.S. Space Program, the risk management system established checkpoints at every phase of meat processing.

The presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act. I continued to sue “Big Meat” as most of my clients up to 2002 were children who were made sick by eating E. coli contaminated meat. I recovered over $350 million during this period from the meat industry and the restaurants they supplied in verdicts and settlements on behalf of those clients. In 2003 recalls of meat laced with E. coli began to decline. After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006. The Centers of Disease Control and Prevention saw E. coli – related illnesses drop 48%.

But then came Spring 2007. E. coli, which begins its life in the hindgut of a cow, mounted a surge on its home court. And, it came back with a vengeance. Thirty-three million pounds of beef would be recalled in 22 incidents. All over the country, slaughterhouses, packing and distribution centers, retail outlets, and restaurants were once again testing positive for E. coli and people-mostly children-were getting seriously sick.

The American meat supply, which had again been touted as safest in the world, tumbled back into disarray. But, why?

As with any unexplained mystery, theories abound. Could it really just be meat industry complacency? Did everyone respond to the good numbers in 2006 by taking a long nap? Did meat processors slack off—consciously or unconsciously—and relax their testing procedures?

Or could it be better reporting? Doctors are more aware of E. coli now, and perhaps when patients present symptoms of food poisoning; tests are more likely to be ordered. When the presence of E coli is found and reported, a recall is triggered.

There’s always global warming. Seriously though – very smart people have posited that droughts in the southeast and southwest have launched more fecal dust into the air, which then finds its way into beef slaughtering plants. It has also been suggested that the deluging rainfall in other areas created muddy pens—an ideal environment for E. coli.

While we’re at it, why not blame high oil prices? High gas prices have fueled (sorry) the growth of ethanol plants. These plants are often built next to feedlots, and a byproduct of the ethanol production process—distiller’s grains—is considered an excellent (and cheap) alternative to corn for cattle feed. Unfortunately, research at Kansas State University associates the use of distiller’s grains as feed with an increase in the incidence of E. coli in the hindguts of cattle.

Another controversial issue may affect the meat supply. The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country in the fall of 2006. Experienced—albeit undocumented—workers have been cleared out and replaced with unskilled, inexperienced labor.

And then there’s Darwin. Another theory holds that interventions have caused the wily E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention. E. coli back in our meat cannot be tolerated. We’ve got a lot of summer of 2008 left. Summer has always been kind to the E. coli bug. More than 5.6 million pounds of E. coli contaminated beef has been recalled so far in 2008, most supplied by Nebraska Beef Ltd., via the Kroger Grocery chain. All of which is responsible for a multi-state outbreak of E. coli that again is filling up the ICU’s in Hospitals in the seven states.

What is being done? Not much.

Congress has held some hearings, but the only new reform is that the names of retail stores that received meat and poultry involved in recalls with high health risk will be made public. Good as far as it goes.

However, despite 76,000,000 American’s being sickened, 325,000 hospitalized and 5,000 deaths each year, food safety has not made it as a Presidential campaign issue. Congress, Democrats and Republicans, have about run out its clock. But E. coli is back in our meat and we better care.

Solutions?

Might I suggest:

* Improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly. Right now, for every person counted in an outbreak there are some 20 to 40 times those that are sick but never tested. The more we test, the quicker we know we have an outbreak and the quicker it can be stopped.

* These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source. That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.

* Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill. We should impose fines and penalties on employers who do not cooperate.

* Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.

* Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring. We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.

* Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts. Reform federal, state and local agencies to make them more proactive, and less reactive. This too requires financial resources and accountability. We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.

* There are too few legal consequences for sickening or killing customers by selling contaminated food. We should impose stiff fines, and even prison sentences for violators, and even stiffer penalties for repeat violators.

* We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy. When I buy a book on line I can track it all the way to my mailbox. However, we have yet to find the source of a tomato (or salsa) outbreak after months of sickening hundreds.

* Promote university research to develop better technologies to make food safe and for testing foods for contamination. Provide tax breaks for companies that push food safety research and employee training. Greatly expand irradiation of raw hamburger and other high-risk products.

* Improve consumer understanding of the risks of food-borne illness. Foster a popular campaign similar to Mothers Against Drunk Driving, which uses consumer power to promote a no-tolerance policy toward growers and companies that produce tainted food.

* Provide Presidential leadership on a topic that impacts every single one of us.

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