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Appeals court reinstates lawsuits against Excel

Posted May 14, 2003

Manitowoc Herald Times Reporter

MILWAUKEE — A state appeals court on Tuesday reinstated 14 lawsuits against a meat company that supplied restaurants with contaminated beef that sickened dozens of people and led to a girl’s death.

The 1st District Court of Appeals reversed Milwaukee County Circuit Judge Michael Sullivan’s May 2002 ruling that Excel Corp. cannot be sued for supplying the E. coli-contaminated beef it supplied to Sizzler restaurants in Milwaukee and Wauwatosa.

More than 60 people got sick and a 3-year-old South Milwaukee girl died after eating at the restaurants in July 2000. Health officials believe the patrons got sick after eating other foods that somehow became contaminated by the bacteria.

Investigators blamed Sizzler’s meat handling procedures for the contamination.

Excel’s lawyers had argued the company was not liable because it did not mishandle the meat and because it complied with U.S. Department of Agriculture inspections before shipping.

But the appeals court said that although federal authorities inspected the meat before shipping, the onus fell on the processor to make sure it was safe.

“The court pretty forcefully rejected the notion that just because federal inspectors are at the plant, that doesn’t mean it’s the government’s primary responsibility to make sure meat is safe. It’s the company’s responsibility,” said Denis Stearns, a Seattle attorney representing more than a dozen people who say they were sickened at the restaurant.

The judges noted that “only two federal inspectors oversee a meat fabrication area in Excel’s plant where several hundred workers daily cut the approximately seven-foot-long, 350-pound split carcasses into some 8,000 intact cuts of beef,” each weighing between 2 and 4 pounds. “Federal inspectors do not inspect each one of these smaller cuts of beef.”

Labels on the meat told employees to thoroughly cook the meat, keep raw meat away from other foods and wash working surfaces, tools and hands after contact, but that wasn’t enough, the judges ruled.

Mark Klein, director of communications for Wichita, Kansas-based Excel Corp., said the company would appeal.

“We’re deeply committed to food safety. We respectfully disagree with the appeal court’s decision and will file an appeal with the Wisconsin Supreme Court,” Klein said.

The federal Meat Inspection Act, which regulates meat sold for human consumption, requires processors to consider what the consumer will do with the meat, such as grinding or cutting it, the judges noted. The law includes a “zero tolerance” contamination policy.

The appeals court said Excel and the rest of the industry are “well aware of both the danger to health posed by E. coli contamination” and the need to take precautions against contamination.

Stearns said the judges also rejected Excel’s argument that consumers are ultimately responsible for their choices, similar to a “buyer beware” argument.

The appeals court said the company could be held liable under state laws as well as federal regulations overseeing meat processing because both sets of laws aim to protect the food supply.

Stearns said the victory applied not only to the people who say they were sickened at the Sizzler restaurants, but to anyone who ingests unsafe food in the future.

Several parties filed briefs with the court as interested parties, indicating that the decision could affect them. They include the American Meat Institute, National Chicken Council, National Meat Association, National Turkey Federation, North American Meat Processors Association and the Southwest Meat Association.

Sizzler USA and E&B Management, the company that operated the two local Sizzler franchises, had previously reached a settlement with 20 people for more than $260,000 in medical bills.

Both companies, along with several insurance companies, are also suing Excel.

A suit naming the estate of 3-year-old Brianna Kriefall of South Milwaukee, who died in the outbreak, was consolidated with the other cases.

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