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Attorney wages war for victims

Seattle's Bill Marler has made food poisoning his specialty

Patricia Guthrie

The Atlanta Journal-Constitution

Friday, June 11, 1999

Seattle--Bill Marler frantically searched for his young daughter in the grocery store. One minute they were looking at watermelons together, and the next moment she had disappeared. Then he heard Morgan's loud little-girl voice, near a juice display. Hands on hips, she stood yelling at a startled shopper. "Don't buy this stuff! It almost killed my friend." Such is the life of Bill Marler of Seattle, who has emerged as the nation's esquire of E. coli plaintiff litigation.

The lawyer - -- described as a compassionate advocate by clients and as egotistical and arrogant by corporations he has sued --- is representing four of the seven children most seriously sickened in the E. coli outbreak at White Water Park in Cobb County last summer. In the past five years, Marler's caseload of clients sickened or killed by E. coli 0157:H7 has pitted him against the Jack in the Box hamburger chain, McDonald's, and Odwalla juice company.

All the companies settled out of court, for sums ranging from $500,000 to $15.6 million. Marler's next foe is White Water, where 26 children were infected with the bacteria. The seven who required hospitalization developed hemolytic uremic syndrome, a kidney and blood disorder caused by E. coli O157:H7. One child, 2 1/2-year-old McCall Akin of Kennesaw, died. So far, Marler has filed lawsuits against White Water on behalf of the families of Jordan Shook, 5, of Cartersville; Summer Kirkland, 4, of Duluth; Matthew Addison, 4, of Louisville, Ky.; and Erin Gray, 7, of Cartersville.

Atlanta Braves shortstop Walt Weiss, whose 4- year-old son, Brody, was sickened in the outbreak, is talking with Marler. The White Water cases may be protracted. Marler says that White Water's attitude seemed to shift when it took its longtime attorney, Thomas Carlock, off the case and hired lawyer Billy Gunn earlier this year. "Ever since then the entire approach has become much more cantankerous and adversarial," Marler said.

Gunn says it's Marler who is being unreasonable and unwilling to start mediation. "His settlement demands have been shocking,"

Gunn said. "Attorneys representing other families have made very different demands. We have been engaged in conversation with other people who have filed suit and others who have not, because they are optimistic we can resolve these cases." So far, three cases --- including the Akin family's --- have been settled but may not be discussed under a confidentiality agreement with White Water.

White Water, opened in 1984 by the privately held family firm Silver Dollar, recently was sold to Premier Parks, owner of Six Flags Over Georgia. But the sale will not affect the E. coli claims against the water park because settlements are paid by the park's insurer, AIG, one of the world's largest corporate insurers. Gunn, who is with the Atlanta law firm Long Weinberg Ansley & Wheeler, argues that White Water is not negligent because it did not introduce the dangerous bacteria into the park.

Health investigators have speculated that a child infected with E. coli may have defecated in a wading pool at White Water and that other children fell ill after ingesting pool water contaminated with the fecal bacteria. "There is a legal distinction between selling food that is contaminated and operating a water park where someone else introduces and transmits E. coli,"

Gunn said. "I don't know if it was a baby in diapers or a 4-year-old. You can have fecal matter that's invisible to the eye, so how it spread is an unknown."

Gunn said transmission in the water is an assumption and not a proven fact. Inspection records have indicated that chlorine levels in the pool were well below the Cobb County health standard on the days when the contamination is thought to have occurred. But Gunn maintained that, even at the levels recorded on the days in question, chlorine levels were high enough to kill the bacteria. ''At the lowest levels ever documented, the chlorine still kills E. coli," he said. Marler disagreed. "The fact is White Water did not have adequate chlorine in a pool it designed specifically for toddlers,"

Marler said. "It did not properly monitor diaper-changing areas near the pool and in the bathrooms. All these things led to this disaster."

A personal injury lawyer, Marler's career took a turn toward food poisoning in February 1993, after he met with Suzanne Kiner at Seattle Children's Regional Medical Center. Kiner's 9-year-old daughter, Brianne, had almost died in an E. coli outbreak that was tied to tainted Jack in the Box hamburgers. She lapsed into a coma and stayed in the hospital for six months. "I was looking for a young, hungry lion," Suzanne Kiner recalls of her criterion for selecting someone to charge into the then-unchartered legal terrain of E. coli poisoning.

But Marler hardly roared. He whimpered. "Brianne had been out of her coma maybe one and half weeks and she was just this little, tiny, very sick little girl," Marler recalls. From her liver failure her skin had this unnatural brownish tone, and there were tubes in her everywhere.. . . Then she made this strange sound, moaning and talking to her mom. It just shook me, and I backed out of the room and I started crying. "Then I thought, 'Great, that's a real good way to impress your client, have her see what a tough trial lawyer you are.' But my own daughter was 1 at that time, and I just couldn't help thinking it could have just as easily been my kid."

Now, it seems, whenever and wherever there is an outbreak of food- borne illness, there is Bill Marler. He doesn't solicit victims -- - that's unethical. He does, however, manage to get his name out there to the families involved. Sometimes he calls the local media to offer his knowledge and opinion; sometimes, families of victims of past outbreaks call parents caught in the newest one and mention his name.

Last June, Marler happened to be in Atlanta, attending the annual convention of the International Food Technologists, when he heard about the local E. coli cases on his hotel television news. He quickly called the news station to offer his take on the situation. Weeks later he was back in Atlanta, conferring in hospital hallways with families reeling from the bacterial assault on their children.

He was at Scottish Rite Children's Medical Center when McCall Akin died there. Last year, Marler severed ties with his old law firm and set out with three new partners to specialize in food poisoning. He also started a consulting business, OutBreak Inc., to further educate food companies and chain restaurants about how to prevent food poisoning. He says those clients pay only travel expenses.

Marler's high visibility and aggressiveness lead some to question his tactics. Kenton Brine, an insurance industry lobbyist in Olympia, Wash., has called Marler's approach to finding clients "ambulance chasing." Those who've come up against him in E. coli cases say he's now making money on both sides of the aisle, from distraught familes and fearful food distributors.

In a Wall Street Journal article last year, Odwalla juice company spokesman Chris Gallagher said, "My guess is that Mr. Marler's new enterprise will be extremely profitable for him --- both politically and financially." Gallagher has since left the company, and officials there declined comment for this article.

During his lectures to companies, Marler includes a videotape showing Brianne Kiner's grisly battle with E. coli, which resulted in the removal of her intestines, kidney failure, a coma and seizures. Marler won $15.6 million for her family. "This could happen to your company," he likes to warn his audience, "and I could be coming to your office, subpoenaing you, taking your documents and making your life miserable."

Bruce Clark used to roll his eyes at Marler's in-your-face style when he sat across from him as the lead defense attorney for Jack in the Box. Now Clark and Denis Stearns, who also defended Jack in the Box, are legal partners with Marler. He wooed them over after admiring their knowledge of food-borne pathogens. "He truly does believe in what he's doing," says Stearns. "When I was up against him at Jack in the Box, he was a zealous advocate for the families. . . . E. coli is a horrible, horrible bacteria. It decimates families and causes lifelong disabilities. That has radicalized him and made him into a fighter."

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