1 william d. marler, esq. marler clark llp ps [email protected] “put me out of business -...

22
1 William D. Marler, Esq. Marler Clark LLP PS [email protected] “Put me out of business - Please”

Upload: oswin-floyd

Post on 12-Jan-2016

221 views

Category:

Documents


3 download

TRANSCRIPT

Page 1: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

1

William D. Marler, Esq.Marler Clark LLP [email protected]

“Put me out of business - Please”

Page 2: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

2

That unfortunate fact doesn’t serve [ ] the law profession, but I assure you people like myself in hospitalitytraining and certification are doing [our] best to put people like you out of business, first and foremost for the customers[‘] safety, secondly because for once it would be to take food out [of] a lawyer’s mouth . . . Sort of ironic, you shut down restaurants, I shut down lawyers . . . Lol

Have a bad, bad day you Parasite.

FDA food code instructor

Page 3: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

3

Lettuce and Spinach

• 21 E. coli outbreaks since 1995– At least 1,000 reported

illnesses and 7 deaths

• Fresh or fresh-cut lettuce or spinach implicated as outbreak vehicle

• 8 outbreaks traced back to produce from Salinas, California

Page 4: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

4

Recent E. coli Outbreaks• July 2002 – WA Dance

Camp– 50 dance campers

sickened, several hospitalized, one with life-long kidney damage

– “Pre-washed” lettuce• September 2003 – CA

Restaurant– 40 patrons ill – Salads prepared with

bagged, “pre-washed” lettuce

• October 2003 – CA Retirement Center– 13 residents sickened, 2

died– “Pre-washed” spinachProduce from all three outbreaks

came from California’s Salinas Valley.

Page 5: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

5

Prior FDA Warnings• 1998 – FDA “Guide to Minimize

Microbial Food Safety Hazards for Fruits and Vegetables” – Specifically designed to assist growers

and packers in the implementation of safer manufacturing practices

• 2004 – FDA letter to the lettuce and tomato industries – To “make them aware of [FDA’s]

concerns regarding continuing outbreaks associated with these two commodities and to encourage the industries to review their practices”

Page 6: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

6

2005 Dole E. coli Outbreak • 23 laboratory-confirmed cases of E. coli O157:H7;

7 epi-linked cases• September 16 to September 30 onset• 2 cases of HUS• Cases in MN, OR, and WI• Statistically associated

with eating Dole pre-packaged lettuce

• “Smoking Gun” – found in bag

Page 7: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

7

FDA – “Adulterated” – 2005 • FDA cited to research linking some or all of the

outbreaks to sewage exposure, animal waste, and other contaminated water sources

• FDA considers “adulterated” any ready to eat crops produced under unsanitary conditions §402(a)(4) of the Food, Drug, and Cosmetic Act

“In light of continuing outbreaks associated with fresh and fresh-cut lettuce and other leafy greens, particularly from California, we are issuing this second letter to reiterate our concerns and to strongly encourage firms in your industry to review their current operations.”

Page 8: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

8

CADHS to Western Growers - 2006

• A reassessment of current manure composting regulations…in light of recent scientific findings

• An assessment of…septic tank systems that may leak/flow into agricultural ditches or creeks bordering fields used to grow ready-to-eat produce

• An assessment of…farm worker access to portable toilets and hand washing facilities

Page 9: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

9

CADHS to Western Growers – 2006, cont.

• An assessment of the locations of fields known to flood frequently

• An assessment of the need for…mandatory GAPs and/or HAACP Plans

Page 10: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

10

2006 Wendy’s E. coli Outbreak• Utah - June 2006• E. coli O21:H19 - only 3

culture-positive case, although over 50 cases probable

• 3 HUS, 2 adult women, 1 with 30 days, the other with 4 months of dialysis

• Likely lettuce from California

Page 11: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

11

2006 Dole E. coli Outbreak

• 204 persons infected with outbreak strain of E. coli O157:H7 from 26 states

• 102 hospitalized • 31 developed HUS• Five deaths

Page 12: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

12

2006 Dole E. coli Outbreak• E. coli O157:H7

– Isolated from 13 packages of Dole spinach

– “DNA fingerprints” of all 13 match the outbreak strain of ill people

– Same strain found on 1 of 4 farms that supplied spinach to a single manufacturing facility on a particular day - cow pies, water source and wild pig gut

– Other E. coli strains have now been isolated - human and bags

Page 13: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

13

2006 Taco E. coli Outbreaks

• At least 150 sickened in 7 States • dozens hospitalized • several HUS cases

• Two outbreaks separated by a few weeks

• Different suppliers and growers

• Lettuce grown in California

Page 14: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

14

Civil Litigation - How it works• Strict Liability• The only defense is

prevention• Wishful thinking

does not help• If you manufacture a

product that causes someone to be sick you are going to pay

Page 15: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

15

Dole E. coli Litigation Status

• At least 16 suits filed in 11 States - State and Federal Courts

• Defendants - Dole, Natural Selection Foods

• Other possible defendants?

Page 16: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

16

Taco E. coli Litigation Status

• To date 12 lawsuits filed in Courts in 5 States

• Taco Bell and Ready-Pac

• Taco John’s and Bix• Lettuce supplier to

Bix - Outbreak PFGE found on nearby Farm

Page 17: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

17

The Discovery Arsenal• Interrogatories• Requests for production• Requests for inspection• Request for admission• Third-party subpoenas• FOIA requests• Depositions• Motions to compel

Page 18: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

18

Jack in the Box – Where it all Began

Page 19: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

19

Page 20: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

20

Page 21: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

21

What Will a Jury Think?

A Jury = 12 Consumers

Page 22: 1 William D. Marler, Esq. Marler Clark LLP PS bmarler@marlerclark.com “Put me out of business - Please”

22

Questions?

See www.marlerblog.com