The Path(ogen) to Success


Attorney Has Lucrative Specialty in Food Poisoning Suits

Less than a decade ago, Bill Marler was living with his wife in a 600-square-foot beachfront cabin with marginal heating while working as an associate attorney at a mid-sized Seattle firm. Today, he is the founding partner in the Seattle firm of Marler Clark and often travels back and forth between Seattle and his comfortable Bainbridge Island home via speedboat.

The difference?

E. coli 0157:H7 - a food-borne pathogen that can cause everything from upset stomachs to kidney damage and even death.

Roughly 90 percent of the revenues Marler's firm takes in come from such cases, though the firm also handles medical malpractice, automobile accidents and product liability. Marler, in fact, is arguably the pre-eminent attorney in the country when it comes to handling E. coli cases.

"I was on an airplane a couple months ago working on a PowerPoint presentation," says Marler. "And this guy next to me was looking over at it and he said, 'I know you; you're that E. coli guy.'"

Maybe so. But he didn't get there overnight.

Until recently, E. coli 0157:H7, which Marler and others simply refer to as "0157," was little known outside the arcane field of epidemiology. But it has since been associated with mass food poisoning cases that have created public relations nightmares for companies such as Jack in the Box and the juice maker Odwalla Inc. These suits have generated millions in fees for personal injury lawyers such as Marler.

While working at Seattle's Keller Rohrback, which largely did defense work, Marler found himself frustrated by how little time he spent in the courtroom. He took to wandering around the office prospecting for cases that other attorneys were turning away, and soon developed a specialty in personal injury. Then, in 1993, an E. coli outbreak swept through the Jack in the Box restaurant chain in four western states: more than 700 people were sickened, 171 were hospitalized, and four died. While other lawyers advertised for clients, Marler picked up a referral from another personal injury client.

"I had never heard of E. coli in my life before that moment," says Marler. "I drove out to the University of Washington and sat and read in the medical library for a couple of days. By the time I filed the lawsuit I probably knew more about E. coli than any lawyer in the U.S."

Marler's class action suit soon picked up more than 200 members and put him and his firm at the center of the Jack in the Box litigation. But it was hardly smooth sailing for Marler. Other attorneys at the firm complained that insurance companies they had long-term relationships with were dropping them because of Keller Rohrback's involvement in the Jack in the Box case. Some wanted the case handed off to another firm.

Not only did Marler press on, but when it became clear that the class action and a plethora of individual cases stemming from the same outbreak could reap the firm millions of dollars, he asked to be made a partner. When the firm refused, citing the fact that he was just 33, Marler moved over to a smaller Seattle firm that would become Kargianis, Watkins and Marler. Because the six-lawyer firm didn't have enough support staff, Marler says he was forced to leave the class action case behind. But he took with him about a dozen individual cases involving some of the most seriously injured Jack in the Box customers. Still, the situation was precarious because he was handling all of the cases on a contingency basis and had limited financial resources.

"I was under water for like a quarter of a million bucks," says Marler. "I had hocked everything I owned. We had no equity on our home. The credit cards were maxed. I remember laying in bed at night hyperventilating and thinking, 'How am I going to come up with money to pay my mortgage this month?'

" That issue went away in February of 1995, less than two years after he switched firms. On a single day he settled a pair of lawsuits totaling just under $20 million. The first was a $15.6 million case involving a 9-year-old girl who suffered brain damage and had her large intestine removed as a result of the poisoning. The second settlement gave $4.3 million to a two-and-a-half-year-old girl who developed a type of kidney damage known as hemolytic uremic syndrome (HUS). Marler says that the average settlement in a successful case in which a victim suffers hemolytic uremic syndrome is upwards of $1 million.

Over the course of the next year, Marler says he settled cases totaling about $35 million for Jack in the Box victims. Without intending to, he also became the go-to attorney for cases involving food-borne illnesses, including salmonella and shigella. He has since handled dozens of cases ranging from large-scale outbreaks that have garnered national headlines to individual cases in which it is often difficult to pinpoint the source of the poisoning.

Handling E. coli cases, and food-borne illness cases in general, is a complex business and can take significant resources, Marler says. But thanks to the Jack in the Box settlements and victories against Odwalla Inc. for five victims of a 1996 "0157" outbreak, Marler now has the resources to battle the most well-financed opponents.

Marler says outbreak cases are typically simpler when it comes to determining causation. If 200 people are infected and 90 percent of them ate at a certain restaurant within the previous few days, determining the source of the contamination typically is straightforward.

Individual cases, however, are far more difficult. In those cases, Marler will often hire an epidemiologist to interview the victim. He then might request local health department records to learn if a specific restaurant has been cited recently for violations.

A recent suit against a major hamburger chain (which he declined to name) involved E. coli poisoning of two young boys who later suffered HUS. Both, as it turned out, had eaten at one of the chain's restaurants three days prior to getting ill.

"When we asked the Health Department for all the inspection reports, it was just by chance that they had been inspected on the exact same day these kids had eaten there and their grill temps were too low," says Marler. "It wasn't conclusive evidence but it was an awful damn good piece of evidence."

The damage caused by E. coli cases can often be subtle, Marler says, and it doesn't always appear immediately after the poisoning. As a result, he will often have specialists monitor his clients' health for a year or more before settling a case. The cost of such monitoring begins at $5,000 and rises considerably depending on the length of time, he says.

"They might have an acute phase that is pretty severe, then bounce back pretty quickly and then go downhill," he says. "That's one of the things that keeps me up at night: Am I taking care of everything I can possibly think of that could go wrong and are they being fairly compensated for that?"

For outbreak cases, Marler says he typically retains eight to 10 of the top experts in the field, in part to prevent his opponents from hiring them. That, of course, can be a costly strategy.

A recent outbreak case in a southeastern Washington school district in which he served as co-counsel is a case in point. Marler says his firm spent close to $300,000 fighting the two-year-long case. Earlier this year he and local attorney Jay Flynn won a $5 million verdict against the district.

One expert who has worked as a fact-finder both for and against Marler says that he has a combination of traits that make him effective at what he does.

"He is very familiar with the science and he understands the human relationships," says Monsour Samadpour, a microbiologist and assistant professor of environmental health at the University of Washington. "And he is very thorough in his work. I can say that about few attorneys in this field."

Though Marler says there are no strict rules about which cases he takes, he tends to accept those involving the most severely injured people. But he will turn away individual cases if he doesn't believe it will be possible to trace the contamination back to its source.

"If I can't prove to myself that company 'X' made them sick, how can I prove it to a jury?" says Marler, who settles about 90 percent of his cases before they go to trial and says he has never lost a case.

Three years ago, Marler decided to start his own firm, one focused almost entirely on food-borne illnesses. His partner in the five-attorney firm is Bruce Clark, one of the attorneys who opposed him in the original Jack in the Box case.

Marler and Clark have little need to advertise these days. Marler says that the bulk of their cases now come from other attorneys who either refer cases to him or bring the firm in as co-counsel. The direct cases that he gets come largely from Marler Clark's website.

While he is an attorney first, Marler has also become something of an advocate for the cause that he so often represents. In 1998 he started Outbreak Inc., a non-profit business aimed at educating companies about the dangers of food-borne pathogens and ways that they can avoid dueling with him in a courtroom. He has also launched several education websites, including about-ecoli.com and about-salmonella.com

"I've done very well financially," he says. "And I just think I have an obligation to try to prevent this. I've sat in an ICU with a family when their child was unplugged from the respirator. And I've got three girls who are 8, 6, and 2 years old. This could just as easily happen to my kid as it could to anyone else's."