The state Court of Appeals ruling reinstated the Kriefall lawsuit against the Cargill Inc. subsidiary, along with suits filed by at least a dozen other victims of the July 2000 E. coli O157:H7 outbreak.
Kriefall, then 3, died on July 28, 2000, days after she ate contaminated watermelon from the salad bar of a Sizzler restaurant at 789 W. Layton Ave.
Health officials said it appeared that the juices from contaminated meat, supplied by Excel, tainted the watermelon, which was prepared within a foot of a meat grinding station. More than 60 people became ill after eating at the Sizzler restaurant on Layton Ave. and one Sizzler in Wauwatosa.
The Kriefall family's attorney, William Canon, said the parents were ecstatic about the opportunity to hold Excel accountable.
Noting that Brianna would have turned 6 today, Canon said, "They feel they are fighting this fight for their daughter and to find responsibility for her death."
Milwaukee County Circuit Judge Michael Sullivan had dismissed the Kriefalls' claims against Excel, citing the company's contention that the Federal Meat Inspection Act exempted meatpackers from personal injury lawsuits in state courts. Excel also argued that it complied with federal food safety rules, followed inspection procedures and should not be subjected to further requirements imposed by state courts.
Excel also argued that its product did not meet the federal law's definition of "adulterated" meat and that the E. coli bacteria in the meat could be killed with proper cooking.
Writing for the court, Judge Ralph Adam Fine said the lawsuits against Excel were consistent with the policy goal of the Federal Meat Inspection Act: to keep tainted meat from threatening the health of consumers.
Citing a previous court ruling, he said the lawsuits give manufacturers another reason to comply with existing laws.
"The court said public safety was the overriding issue, and I think this was definitely a win for the consumer," said Denis Stearns, an attorney with the Marler Clark firm in Seattle.
Stearns and Marler Clark represent 14 plaintiffs who have settled their claims against Sizzler and the owner of the Layton Ave. franchise. Those E. coli victims will now pursue actions against Excel, he said.
They may have to wait.
Ralph Weber, a Milwaukee attorney representing Excel, said the company would appeal Tuesday's ruling to the state Supreme Court.
The company maintains that the E. coli outbreak was not caused by meat it supplied to the restaurant, he said. The Excel meat that was tested by health officials and shown to have the same genetic fingerprint as the E. coli bacteria found in the victims arrived at the restaurant after the outbreak started, Weber said.
"The link between Excel's meat and the salad bar contamination is doubtful, if not impossible," he said.
Canon disagreed, saying the genetic fingerprinting on the E. coli bacteria served as the equivalent of DNA evidence in a criminal trial.
The dispute over responsibility would likely be part of a civil trial - if the case proceeds that far.
Canon said he would present inspection records and witnesses to show the unsanitary conditions in the Excel slaughterhouse.
Weber said the company was prepared to prove its commitment to producing safe foods.