Building a Case Against E. coli


"As a parent, you need someone to put an arm around your shoulder, to say 'we'll take care of it,' and that's what they do."

Seattle attorney Bill Marler sounds a little like Batman when he talks about the young E. coli victims he's represented.

"I make a lot of money off the suffering of these victims," he says. "You could look at it that way. But I also make sure I squeeze the corporate bad guys for every dollar my clients are entitled to get and then some. It tells a lot about the passion I have in representing my clients. I sleep really well at night."

Marler, '87, has carved out a niche within a niche. He recently teamed up with former legal foe Bruce Clark, '84, to start a law firm that specializes in litigation arising from outbreaks of food-borne illness. Two other partners, Denis Stearns and Andrew Weisbecker, also attended Seattle University - a coincidence says Marler, who invited his colleagues on board because of their experience with food-safety litigation and food manufacturers.

"Between Bruce and Denis and Bill, you're looking at probably the most knowledgeable attorneys in the U.S. on causes and effects of E. coli outbreaks," says insurance claims adjuster Steve Rowinski. He's sat on the opposite sides of the table from Marler in two major lawsuits, one against Jack in the Box, the other against the Odwalla juice company. "Part of settling a case is getting a read on the opposition," Rowinski says. "In a general sense, Bill is a very competent and tenacious attorney. I respect him as an opponent, certainly."

As a business move, the formation of Marler Clark couldn't be more timely. The emergence of E. coli O157:H7 in such kid-favored foods as hamburgers and apple juice has sparked greater public awareness about the bacterium. Outbreaks are being identified more quickly and more accurately, and more claims are being submitted by injured parties. Marler and his partners spend about half their time on food-related cases, which bring in about 90 percent of the firm's revenue.

Bottom line aside, Rowinski says, Marler and his partners are providing an important service. "The fact of the matter is, there are people being injured in these outbreaks."

To arrive at the offices of Marler Clark, on the 43rd floor of Seattle's Columbia Tower, requires switching elevators three times. Once inside, the first thing you notice, besides the sweeping views of Puget Sound, are the framed newspaper reports of cases Marler has handled. He's landed a fair number of high-profile cases and attracted a good deal of media attentions since 1993, when he represented 9-year-old E. coli victim Brianne Kiner in her lawsuit against Jack in the Box. Brianne, who was in a coma for several weeks, had her large intestine removed and suffered slight brain damage. Six years later, she also suffers from asthma and diabetes. The $15.6 million settlement awarded to Brianne's family was the largest in Washington history.

Marler's penchant for getting his name in the papers came under attack this winter in The Wall Street Journal. In the article, Marler is criticized by his adversaries for aggressive marketing tactics, including using the media to lure clients whenever an outbreak occurs, and exploiting the E. coli scare to power his political ambitions.

Marler contends that most food-related cases have been referred to him because of his hard work in the Jack-in-the-Box case. However, he admits e-mailing a local reporter after news broke in November of an E. coli outbreak at a Kennewick, Washington, elementary school. The reporter quoted him extensively, and Marler now represents 10 of the victims.

"You can look at that many different ways," Marler says. "I'm trying to ingratiate myself with the press or I'm trying to educate the press . . . From my perspective, it's a combination of those things. Ultimately, I know if there's an E. coli outbreak in the western U.S., I will be contacted, either by the victims or by lawyers who want some help. Either way is fine."

About his political aspirations, the 42-year-old trial lawyer is equally candid: he says he's considering a run for the U.S. Senate in 2000. It's an idea that's been taking shape at least since 1995, when he hired a political consultant to explore a possible bid. The poll indicated a "better than 50-50 chance" for a victory in 1996, but the Odwalla cases were stacking up and the timing was wrong for a campaign, says Marler. His political career began early, when as a 20-year-old Marler was elected to the Pullman City Council. Since that time, his political activities have been behind the scenes. He served as finance chairman of Washington State Gov. Gary Locke's 1996 campaign and has raised money for other Democratic candidates. As a member of Locke's "kitchen cabinet," Marler continues to assist the governor as an unofficial advisor.

Another source of controversy for Marler has been the creation of OutBreak Inc., the consulting arm of the firm that helps companies avoid contamination and costly litigation. Some see this latest endeavor by Marler and Clark as a means of profiting off both sides of the E. coli scare. Marler concedes the potential for profit is there, but says he prefers to concentrate on the business of lawyering and not make money off of OutBreak Inc. So far, Marler says, most of the dozen or so companies that have employed their services have paid only travel costs. The list of companies includes Kraft, Golden Grain Pasta, Nile Spice and Bear Creek Corp., publisher of the Harry & David catalog.

"We can speak from both sides of the issue," says Clark, who was the lead attorney for Foodmaker, Inc. the parent company of Jack-in-the-Box restaurants. He says, "Foodmaker made fundamental mistakes. We can tell companies 'Look, here's what we learned.'"

Although Bear Creek Corp., in Medford, Oregon, has not had a problem with product contamination, the company hired OutBreak Inc. to conduct a half-day seminar for employees throughout the company. Harry & David ships more than five million packages of gourmet food and fruit per year in the United States and abroad. "This is not an issue we want to play catch-up on," says Bill Ihle, vice president of corporate relations. "The corporate landscape is littered with companies that don't take advice from firms like Marler Clark."

The forum, which included screening a videotape of Brianne Kiner lying in her hospital bed, put a face on the issue of food safety, Ihle says. It convinced everyone in the company, he says, that it is their responsibility to stay constantly vigilant. "Do you not, after being on the scene of an accident, drive away more carefully? You think: there by the grace of God goes my company."

Steve Rowinski, the insurance claims adjuster, applauds the creation of Outbreak Inc., saying that if Marler and Clark can save even one child from a food-borne illness, they're providing a valuable service. "I've seen from the defense side what can happen to some of these kids," he says. "I would hate to have my child suffer that way."

Charles Hiatt, whose young daughter was made gravely ill by E. coli after drinking un-pasteurized Odwalla apple juice (Odwalla has since established a pasteurization process and safety procedures for producing its fresh juices), says some companies are negligent and deserve to get the "full brunt of Bill." On the other hand, he adds, they should have some means of knowing how to prevent food-safety problems. "It could save somebody's life or keep them from getting really sick."

Hiatt says his family was directed to Marler by an attorney in California. Marler is dynamic, focused, diligent-"a damn good attorney," he says.

John Hinson, who is even more effusive in his remarks about the legal team of Marler Clark, apologies for being "corny." But he really feels, he says, that they have been his family's "knights in shining armor."

When the Hinsons suspected their 2-year-old had caught a rare strain of salmonella from a breakfast cereal, they tried contacting the cereal manufacturer for information, but the promised call backs never came. Doctors, Hinson says, weren't much more help. The couple received conflicting opinions on which medicine to administer, and it "took two months to get a referral to a specialist." Meanwhile, the salmonella bacteria had cause their daughter to suffer bloody diarrhea, a high fever, lethargy, and lack of appetite. The bouts of severe sickness lasted almost five months, says Hinson, who had to shelve a major project at work because of the crisis. His wife had to quit her job to care for their daughter.

Flipping through the phone book in search of a lawyer was an act of desperation, a last resort, says Hinson. It took one half-hour meeting with Denis Stearns, he says, to learn everything he'd wanted to know about salmonella, and then some. "As a parent, you need someone to put an arm around your shoulder, to say, 'we'll take care of it,' and that's what they do," Hinson says. "There never any talk of 'Hey, let's screw this insurance company and see how much money we can get.' It's whatever you say. They want to know how are you? How's your child? What do you need?" Stearns has filed a lawsuit against Malt-O-Meal on behalf of the Hinsons and several other families.

Marler's clients say his concern for their well being is sincere. A card, a gift-those are the ways he keeps in touch with the severely injured children he's represented. There's no way, he says, that you can keep their tragedies from affecting your life-or how you live your life. He and his wife are cautious about what their two young daughters eat, and one thing they do not eat is hamburger.

Once, Marler had to consult with the parents of a 2-year-old girl who had been in a coma for a long time. They sat in the hospital room trying to decide whether to remove the child from life support. "As a parent, the right thing to do was to pull the plug," Marler says. "As a trial lawyer, the best thing to do to maximize the dollar value of the case is to keep the child alive." The parents decided to remove their daughter from life support.

When Marler arrived at his Bainbridge Island home after that visit, he found a note saying his wife and children had gone to a local pool. He joined them and saw two children wearing diapers in the pool. "I went nuts and told my wife and kids to get out," he recalls. He had the manager check the chlorine level and found it wasn't where it should be. Now, Marler is on the pool's advisory board.

Marler also sits on the board of directors of Children's Hospital and on the Washington State University Board of Regents. He takes on pro bono cases and donates money to worthy causes. So, Marler says, he is not about to apologize for owning a house on the water or wanting to provide a comfortable existence for his family.

"Yes, I've made a lot of money doing this work, but it's not like it came easy," he says. "I'm a firm believer in karma. If you do good things, good things will happen to you."