1 william d. marler, esq. marler clark llp ps [email protected] “put me out of business -...
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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
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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
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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.
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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”
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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
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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.”
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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
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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
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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
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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
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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
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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
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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
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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?
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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
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The Discovery Arsenal• Interrogatories• Requests for production• Requests for inspection• Request for admission• Third-party subpoenas• FOIA requests• Depositions• Motions to compel
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Jack in the Box – Where it all Began
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What Will a Jury Think?
A Jury = 12 Consumers
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Questions?
See www.marlerblog.com