Law 360 | By Emily Field | May 29, 2020
Prominent food safety plaintiffs attorney Bill Marler of Marler Clark LLP, who has been representing victims of foodborne illnesses since the early 1990s, recently spoke with Law360 about practicing remotely from his home on Bainbridge Island in Puget Sound and about food safety concerns during the COVID-19 pandemic.
Marler began his career in 1993, representing 9-year-old Brianne Kiner who was sickened in the Jack in the Box E. coli outbreak that killed four children and sickened hundreds of others. After securing a $15.6 million settlement, Marler went on to represent other victims of foodborne illnesses against companies such as Chipotle, Dole and ConAgra.
This interview has been edited for length and clarity.
How have you and your firm adapted to working remotely?
We have some people who have always worked remotely. I have an associate who lives in Kentucky, so we have some experience. My nurse works remotely and my epidemiologist works remotely.
But we always had people in the office. I've been practicing law for almost 30 years and I'm like the old school. When I first started practicing, everyone wore a suit and tie and suspenders and bow ties, and you were in the office six days a week. On Saturdays, you dressed in business casual, and that's obviously changed a lot over time and everyone is way more casual.
It's been probably a bit more of an adjustment for me just because I'm an old guy. But I think everyone else seems to relish it, especially the millennials with dogs. All millennials seem to have dogs.
Ha, that describes me, actually.
I have three daughters in the same group so I say that with the same loving way that I do with them.
I think people are adjusting. I think you have to get over the immediate gratification you get when you walk and talk with someone and ask a question. Now, you're either Zooming them or calling them or emailing them, and you're not getting quite that response because they may be out walking their dog. It's not like they're not doing their job; they're doing it at a slightly different time frame.
But we're still taking depositions, filing lawsuits. I filed a lawsuit today. We do a lot of Zoom meetings. We've done two or three Zoom cocktail hours.
You can tell it's wearing on some people more so than others. People who are maybe a bit more social, you can tell they're having a little harder time. So I've been doing some more outreach and I think that's been helpful.
But I don't think we have skipped a beat on how we practice law.
We're getting a lot of calls from people who are not being called back from health departments, people who have been sick with salmonella or E. coli and get the diagnosis.
Normally, you would hear that the health department would call them because once you're diagnosed with salmonella or E. coli or listeria, by law the health department is supposed to contact you. But health departments are focused on other stuff right now, understandably.
It will be interesting to see how if in the next couple of months, if not only recalls are down and inspections are down but you start to see a downturn in the number of E. coli cases or salmonella cases. Is it because people are not going out to restaurants and getting poisoned? Or is it just we're not tracking the cases? I kind of have a tendency to think that it's probably because cases are not being tracked.
The long and the short of it: The firm is doing fine. We have lots of cases from years past and things to work on. Not going to cut back on staff at all. I probably wouldn't do it even if business was down because my people have been with me for a long time.
But in a couple months from now, I think there are going to be less confirmed cases by the CDC [Centers for Disease Control and Prevention] and health authorities, so that's going to be interesting.
Are you concerned that because the Food and Drug Administration is so focused on COVID-19 and finding a vaccine, are there going to be fewer resources for food safety?
I got a lot of questions early on about the safety of food itself. There are two sides to that equation. Red meat, chicken, lamb, that's all inspected by inspection services on the USDA [U.S. Department of Agriculture] side. They're supposed to have an inspector in every plant, and you cannot produce meat and sell it unless there's an inspector in the plant. That's just the law.
And so there are inspectors who have gone out sick because of COVID or fear of COVID, and some inspectors unfortunately died. Then you have these slaughter facilities, which are hot spots, and you have lots of them shut down, and of course you have the president ordering everybody to go back to work. That's super problematic for the inspectors because they're going into environments that are hot spots. Slaughterhouses are the next old-folks homes. That's just kind of how it is.
There hasn't been a meat recall in two months and I can't think that it's because everything is running smoothly. I think it's because there's been a lack of tests.
On the FDA side, which does imports and all the other foods, cereals, vegetables, they have a limited number of inspectors as it is. Most major food producing facilities might get inspected once every year or two or three. So when they're limiting inspections because of COVID, it's kind of hard to argue that it makes a huge difference because they weren't doing that much inspection to begin with.
But again, the recalls from the FDA have dropped dramatically, and other than that, I think the only CDC report of a multistate outbreak was one involving blackberries that came out in January and February.
So I think there is clearly an impact by their focus on COVID. I'm not saying they shouldn't focus on COVID.
It strikes me that with 30 million people unemployed, we might be able to find some people who could assist with COVID and assist with food safety, but that's just me.
Assuming we ever get our [act] together to do testing and tracing, we're going to have to hire, in a sense, a small public health army to do that. I haven't seen a big push for that yet.
Do you have any other food safety concerns with regard to the pandemic?
I got a lot of questions early on about the safety of food itself. There still appears to be no evidence that COVID can be transmitted via food, especially food that's cooked.
There is certainly risk, but there haven't been any cases by COVID being spread by ready-to-eat food. We haven't seen anything like that because it's a primarily inhaled virus.
But COVID cases are going to be really, really hard causation-wise to prove because the incubation period is long and there's so many ways you can get exposed to it.
If you went to a restaurant and there was an ill worker or an asymptomatic worker and you wound up getting it. But maybe you got it in the subway going to the restaurant or maybe you picked it up on the bus or walking down the street.
So it's going to be really difficult to try to prove the most likely way an ill patron [contracted COVID]. I'm not saying that there won't be some lawsuits. I'm sure there will be, but I think causation is going to make it pretty difficult for most of these cases to have legs.
We haven't gotten any calls, somebody saying, "I got COVID. I think I got it at a restaurant." We had calls from people who said that they got food poisoning and didn't go to the hospital because they were afraid that they would get COVID. So there are certainly some impacts.
What litigation do you see arising out of the pandemic?
If I had to guess, the ones where causation would be clearest. I think the ones that you are going to see the most are nursing home cases, failure to properly prevent the spread of a disease. Certainly that's a negligence standard, and the way that it would play out in the law would be that in some of these early cases, the early transmission cases, the courts probably wouldn't find liability.
But I think there's a CDC study of a couple of the nursing homes here in the state of Washington and they had an asymptomatic worker working in two facilities, so that's obvious how that spread.
The question really is: Could they have put a system in place, PPE [personal protective equipment], hand-washing, to have prevented the spread and whether or not they had knowledge of the risk of spread before and didn't do anything about it?
I definitely see those kinds of cases because of this ill worker or this failure of having adequate PPE.
I think you'll see a lot of litigation between various owners of businesses and their tenants who say, "I can't afford to pay my rent anymore."
Given probably a 25% unemployment rate in the next 30 days, I think, unfortunately, you're going to see a lot of people going bankrupt. I don't know how that's all going to shake out.
In my space, I have a hard time seeing foodborne illness litigation over COVID. But I can definitely see in some areas, like the medical malpractice area, or I can see workers potentially trying to get around worker compensation situations where they can show some level of negligence or conscious disregard on the part of an employer, which is probably why [Senate Majority Leader Mitch] McConnell and the Republicans want to give immunity.
What were you working on when the pandemic hit?
I've been working on the latest romaine lettuce cases from last fall and the Jimmy John's E. coli cases linked to their continuing to sell sprouts and the hepatitis cases linked to blackberries in the Midwest. Those are all cases that got generated in the last six months by outbreaks, so that's what we are working on right now.
That's why I said it will be interesting to see when there's lack of inspections, lack of recalls, lack of investigations, that whether there's less litigation in my space because of the lack of investigations, inspections, reports.
We've seen that happen in the downturn in the economy in 2008. We saw definitely less inspections, less outbreaks, so that definitely impacted the number of lawsuits that we filed because there were less of them to file.
I'm kind of anticipating something like that again. But the great thing about practicing the same thing since 1993 — so 27 years since the Jack in the Box cases — I've seen downturns and upturns and I think, unfortunately, we've still not gotten as good as we could be about protecting Americans from foodborne illness.
So it might be a downturn for a few years, but, unfortunately, I think it will be back again. It was just in 2018 that we had one of the largest E. coli outbreaks ever linked to romaine lettuce. They're still growing romaine lettuce in Yuma and probably haven't solved the problem and there are probably cases going on right now but nobody's investigating them.
Aside from work, what have you been doing to keep busy?
I have been walking eight miles a day. The great thing about living on an island is that the traffic has been nothing. We have a lot of trails. It's a pretty rural island. Sometimes in the morning I'll just get up and go for a four- or five-mile walk and do it again in the evening, and sometimes I'll go for a forced eight-mile march.
Sometimes I'll be walking along and somebody will drive by, like, "What are you doing? Is your car somewhere?" and I'm like, "No, I'm just out walking."
I have to admit I've been doing a little online shopping. I bought things that are a little bit odd. I won't necessarily tell you all of them, but I bought my wife some new outdoor furniture to sit on.
I've been trying to stay sane a little bit because my normal practice had me on the road two to three days a week somewhere in the world.
I've got a case pending in South Africa. I've got all of these food safety speeches all over the world and all of those conferences got canceled over the last three months, and some that are scheduled for later this year have gotten canceled too. I was supposed to be in Beijing a month ago and that got canceled.
And then I commute an hour from my house to my office, so I'm saving two hours a day of commuting. I have a lot more time on my hands than I did before, but I seem to be spending my time walking, working in our yard and buying things I don't need online.
My wife hasn't left me yet. I don't know if she's gotten used to me being here so much, but she clearly had gotten used to me being on the road a couple of days a week. She's probably been the one to suffer more than anyone.
What are you looking forward to the most when the shutdown ends?
I really enjoy going to these food safety conferences and speaking about food safety. I like the litigation aspect of my job too, but I still enjoy trying to make things better. I miss that a little bit, so hopefully I'll get back to doing that.
I teach a class at the University of Arkansas on food safety. I teach a seminar every year, usually two to three days, but I had to do it all by Zoom this year, which is kind of weird.
I'm looking forward to doing that more for sure.
And I miss going to my local restaurants on the island where everybody knows your name and they know what drink you order.
We've been helping out local businesses here on the island. I've donated money to them. They make meals for people who don't have work or who are hurting. We've been trying to help keep the restaurants alive for the reason I'd like them to be there when this is over.