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Needed: Tort Lawyers

Campylobacter, escherichia, salmonella, listeria--it's very dangerous to put things in your mouth. Foodborne illness sickens 76 million Americans a year, kills 5,000 and runs up $3 billion in hospital costs. What's the answer to this epidemic?

One possible solution is more government and more laws. Those familiar with the proclivities of this magazine will not be surprised that I take a dim view of this solution (and, in particular, of the proposed Food Safety Modernization Act, which would bury food preparers in paperwork). No, I would prefer to have the same government and the same laws, but--here's the surprise--more tort lawyers.

The tort bar has not, on the whole, covered itself with glory. A large fraction of asbestos cases, for instance, are based on quack readings of X-rays. But it's a different story in the narrow specialty of food-poisoning litigation. There the science is sound. The typical plaintiff is the family of a child whose kidneys and other organs were damaged (in some cases fatally) by an E. coli infection. The link from the culprit food to the injured child is made unmistakable by genetic subtyping. The lawyer's main task is to argue over how much the kid's life is worth.

Meet William Marler, a 52-year-old Seattle attorney whose career was launched with a $15.6 million settlement against Jack in the Box ( JBX - news - people ). (This victim survived but lost her large intestine.) Sixteen years later he can brag that his firm, Marler Clark, has extracted just shy of half a billion dollars in settlements from food vendors. This suggests cumulative revenues of maybe $150 million for a small firm (seven lawyers, one full-time epidemiologist). But letting lawyers get rich has a nice side effect. The settlements get the attention of food producers. Bill Marler is not shy about using the Web, press releases and Capitol Hill testimony to publicize what he's doing.

Government inspectors are on duty only some of the time, as we know from the Peanut Corp. of America fiasco. But the marketplace is a constant enforcer. Lawsuits do their part, along with the cost of recalls and the damage to brand names, to keep food companies alert. If it's expensive to make mistakes, more money will go into the detection and prevention of microbes. Entrepreneurs will find opportunity here.

Helen Coster writes (see "Do You Know Where That Berry Came From?") about one who has a system for tracing produce. Better detection would be good. It costs $20 and 12 hours to detect an E. coli O157:H7 contamination. Maybe Becton, Dickinson could come up with a $2, 12-minute sensor. Maybe, someday, Twitter will be detecting outbreaks of diarrhea before the city health inspectors do (see Add technology to tort law and you get a powerful force for safety.


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