Bill Marler: Taking on E. coli, Big Ag, Raw Milk Conspiracy Theorists and the USDA


Simple Good and Tasty | By Shari Danielson | December 17, 2009

    Two years ago, Stephanie Smith, a 22-year-old from Cold Spring, Minnesota, was a fit, healthy dance instructor who ate a mostly vegetarian diet. But one Sunday afternoon, her mother took some hamburger patties out of the freezer and grilled them for dinner. Stephanie ate one.

    Neither of them knew that Stephanie’s burger was contaminated with E. coli O157:H7 – the most potent strain of Escherichia coli bacteria -- the same one that killed four California children in 1994 after eating tainted burgers from Jack in the Box. Every year, E.coli O157:H7 sickens tens of thousands of people, most of whom get it from ground beef; as many as 10 percent of its victims develop hemololytic uremic syndrome (HUS), a painful and dangerous complication that may cause seizures, kidney damage, paralysis, even death.

    Stephanie Smith didn’t die, but she came close. Her kidneys shut down and her convulsing was so relentlessly that her doctors had no choice but to put her into a medically-induced coma. When she woke up, nine weeks later, she was a brain-damaged paraplegic.

    Two years after eating that tainted burger, she now struggles to walk, to talk, to regain any semblance of the life she had before that fateful Sunday barbecue. Just last week, she filed a $100 million lawsuit against the burger’s producer, Minnetonka-based Cargill, the industrial food and commodities giant that supplies 25 percent of all meat sold in the U.S.

    Stephanie is being represented by Bill Marler, the outspoken, controversial, publicity-seeking attorney who makes a very good living collecting 25 to 35 percent of the monetary damages awarded his clients, most of whom are food-poisoning victims. He is also considered one of the most influential food safety advocates in the country; many progressive food-policy organizations, like Food Democracy Now, are trying to convince President Obama to put him in charge of the USDA’s Food Safety and Inspection Service (FSIS).

    Bill Marler
    Attorney Bill Marler: Suing Cargill for $100 million for sickening Cold Spring, MN, woman with E.coli-contaminated burger.

    Type the word “food-borne illness” into the Google search box and you’ll get 1.16 million search results; Marler’s law firm is number-three on the list. (He owns the URL -- foodborneillness.com.) He writes a daily blog about his work, and his entries are refreshingly un-lawyer-like. He is an entertainingly straightforward writer with a witty and wicked sense of humor. For instance, last June, he wrote that cookie-dough packaging should include this message:

    “THE FDA INSPECTION MEANS NOTHING. THIS PRODUCT MAY CONTAIN A PATHOGENIC BACKTERIA THAT CAN SEVERELY SICKEN OR KILL YOU AND/OR YOUR CHILD. HANDLE THIS PRODUCT WITH EXTREME CARE…

    “The day the Cookie Industry puts [this] on the label is the day I will go to work for them.”

    He can also be acerbic, confrontational, and sarcastic. In a post last May, he criticized President Obama for not taking advantage of a “teachable moment,” by ordering burgers for himself, Joe Biden, and the press “in a restaurant with a spotty food safety record that does not use, or may not even have, a thermometer.” He continued:

    “What consumers believe, including the President apparently, is what they hear every day from Government officials and the Beef Industry – “Our Food Supply Is The Safest In the World.” Compared to China? Great! Clearly, any food safety message is missed, because of lack of honesty (hamburger really may contain animal feces that can sicken or kill you!) and lack of education (why don’t we teach kids how to cook safely in addition to teaching them to wear seatbelts and shun smoking?)"

    But his most moving and unflinchingly intimate posts are the ones about his clients – the victims of contaminated food. Here’s his post on December 3, about Stephanie Smith:

    “Stephanie wanted to meet with Cargill’s representatives. She wanted to tell them what their hamburger did to her life. However, when the time came to meet, Stephanie was not feeling well – many of the medications she needs to take on a daily basis make her nauseous. Even being pale and lightheaded, she was determined to meet.

    “As she and I waited for the meeting, Stephanie suddenly vomited – multiple times. I begged off the meeting and helped clean-up Stephanie and the law office. Stephanie, however, was even more determined to meet. What both she and I did not know was that while she was vomiting she had also voided her bowels and bladder. I am not sure why I did not notice it, but Stephanie’s excuse [was that] she feels nothing – very little – from the waist down.

    “Stephanie still had her meeting. I wonder if Cargill noticed.”

    I was not surprised to read that Marler is generally reviled by industrial food giants. According to his bio, Marler has sued ConAgra, Dole, KFC, Taco Bell, McDonald’s, Wendy’s, Subway, Supervalu, Wal-Mart, BJ’s Wholesale Club, Enfamil, Campbell’s, JBS Swift and meat suppliers from all over the country. In a recent Seattle Times article, one food safety expert said, “There’s plenty of people in the meat industry who, if they looked in the rearview mirror and saw they accidentally ran over Bill Marler, they’d put the car in reverse and make sure.” Marler has a reputation for putting his most pathetic, debilitated clients – often children – on display, to garner sympathy in his battle against the Goliaths of the food industry.

    Raw milk: One of Marler's most frequent targets.At the same time, Marler is also hated by many sustainable, organic, local foodies for his lawsuits against family farms, most of which sold contaminated raw milk, and his support for federal food-safety legislation. To them, he is Goliath, towering menacingly over mom–and-pop farmers struggling to survive.

    They have reason to feel that way. As Marler blogged last March:

    “The foodie/organic/raw/local/small farmer blogs are alive with conspiracy theories (real or imagined) about the reasons behind the moves in Congress to finally try to make our food supply safer. Some see the evil hand of Monsanto, Cargill, etc., and their minions in Congress, as trying to crush the organic, small farmer by enacting “one size fits all” rules… regardless of your size, if you poison someone with your products it is wrong.”

    As a writer for one of those “foodie/organic/raw/local/small farmer blogs,” I wanted to ask Marler some questions, such as:

    (1) Do you mean to imply that local, organic, sustainable food is no safer than food from BigAg?

    (2) Are you able to differentiate between, say, a Cargill and a Joel Salatin?

    (3) What do you and your family eat?

    So I went to his website, clicked “Contact,” typed my questions and e-mail address on the form provided, and clicked “Send.”

    Less than two hours later, I got a reply -- not an automated response, but a personal e-mail -- directly from him. It said, simply, “Call me anytime,” and included his phone number.

    Call him I did, and over the next several days, Attorney Marler and I engaged in two extensively detailed phone conversations plus an e-mail exchange. The extent of his accessibility and openness surprised me; no one screened my calls; no one asked for my credentials. He was very direct, even blunt, as well as extremely articulate, wry, patient, and very, very likable. His favorite phrase seems to be “the reality is,” and after talking to him, I understand why he uses it so often. He struck me as being acutely motivated to find out what is real, or as close to real as the cold, hard, scientific data will allow. He’s a stickler for information and research. And when there are gaps in the data, he fills them with images of sickly children, mothers on kidney dialysis, and paraplegic ex-dance instructors.

    He spoke openly about the Stephanie Smith case and about Cargill. He refuted Michael Pollan’s thesis that E.coli O1057:H7 is more prevalent in CAFOs than in grassy meadows. He told me which food he never eats, and challenged my belief in the benefits of raw milk. He also talked about why the use of ammonia and irradiation to kill food pathogens may be "the better of two evils." He praised the food safety bill introduced by Minnesota's senior senator Amy Klobuchar. And he admitted that, despite his desire to get the job as head of the FSIS, he doubts that he has what it takes to be a "team player" on the President's cabinet.

    Bill Marler: Taking on E. coli, Big Ag, Raw Milk Conspiracy Theorists and the USDA.

    Part II of an interview with Shari Danielson | December 18, 2009


    Bill in office

    Safe-food advocate and attorney,
    Bill Marler, in his Seattle law office.

    In yesterday’s post, I wrote about Bill Marler, the influential, outspoken, high-profile attorney who is representing Stephanie Smith in her $100 million lawsuit against Cargill. Smith, an ex-dance instructor from Cold Spring, Minnesota, almost died after eating a Cargill-produced hamburger, which was laced with E.coli O157:H7.


    I talked to Marler last week, over the course of two, long phone calls and an e-mail exchange. He spoke to me from his office in Seattle, a short ferry ride away from his home on Bainbridge Island, where he lives with his wife and three daughters. His oldest, a high school senior, drives a VW bug with a vanity license plate that reads ECOLI; he drives a Prius. He grows his own organic garden, considers himself a locavore, and is friends with Michael Pollan, whom he’s persuaded to visit his daughter’s school next month as a guest lecturer.

    Seems pretty simpatico with the Simple, Good, and Tasty crowd, right? For the most part, he is. So why is he hated by so many "foodie/organic/raw/local/small farmer" bloggers? Keep reading. You'll see.

    Our discussion has been edited, but only for clarity and length.

    SGT: You’re the attorney representing Stephanie Smith, a Minnesota resident, against Cargill, a Minnesota company, for $100 million because she contracted E.coli O157:H7 from a hamburger that was produced by...

    Marler: Well, the reality is, the meat was a mixture from four different suppliers, and the USDA can’t figure out which one had the E.coli O157:H7. It could have been one, two, three or all four. But Cargill was the producer and distributor.

    SGT: You’ve been critical of the halo effect around local and/or organic food, which you say is no safer than food that's a product of industrial, big-business agriculture. Is that true?

    Marler: First, let me say that local, organic food – which my family eats – has many benefits that we all know: fewer pesticides, hormones, and additives, which have a longer-term deleterious effect on our health. I’m a big supporter of organic, locally or regionally sourced and sustainable products. My family has a garden.

    But sometimes the people who market these products don’t speak honestly about the real safety risks -- the potential pathogens -- that are inherent in all food. Whether that food comes from a certified-organic, small, family-run farm or a BigAg CAFO.

    Remember the E.coli outbreak that came from the organic spinach? If you were one of the people who ate it and got sick, it wouldn’t matter to you if it the spinach was organic or conventional.

    SGT: But what about Michael Pollan’s argument that the especially virulent strain of E.coli -- O1057:H7 -- is more prevalent in cows raised on CAFOs than cows raised on grass?

    Marler: Look, I am a big supporter of Michael Pollan. You know that I offered to pay for his trip to Washington State University last spring?

    [Note: Marler is referring to WSU's decision, last May, to remove Pollan’s book, “Omnivore’s Dilemma,” from its freshman reading program and refuse to pay for Pollan to speak on campus, citing budget limits. Marler, a graduate of WSU, suspected the university’s reasons “might be political more than financial,” and so offered to pay for Pollan’s travel and expenses. His offer was accepted. So Pollan’s book is back in the hands of WSU freshman, and he is scheduled to visit the campus next month. Click here to read WSU's account of what happened.]

    When he comes to Washington in January, he’s going to spend an afternoon at my daughter’s high school to guest lecture on food, the environment, and social issues.

    But, the reality is, if you study the genome of this bacteria, you learn that it’s been around for a while. There’s no evidence that it spontaneously erupted in modern industrial feedlots -- the CAFOs. There is literature that Michael cites that says because of cows eating grain and all the other crap that gets fed to them, like antibiotics, their stomachs become more acidic, which creates a better environment for E.coli O157:H7 to grow in. But, I have to tell you, the research goes both ways.

    On my blog, I did a literature search and analyzed grain-fed vs. grass-fed beef.

    Cows

    And the conclusion is that E.coli 0157:H7 is in both. It’s everywhere. It’s in horses, deer, sheep, goats, even trouts in lakes. It’s endemic in our environment.

    But I’m not saying Michael is wrong, I’m saying the reality is that more research is needed, because maybe there is a way to naturally prevent it from growing in the guts of cows. For instance, there’s now research being done to develop a possible E.coli vaccine for cows.

    Plus, there have been a number of E.coli and salmonella outbreaks on organically grown, local produce. So, whether or not the bug is amplified in CAFOs is an open question that needs more research.

    Emotionally and intellectually it’s very easy for those of us who want to support local, organic food and do away with CAFOs to jump to the conclusion that they’re the root of all evil – mainly because they are terrible, nasty places for a lot of other reasons. But I’m not convinced that eliminating them will eradicate the danger of E.coli in hamburger. The research is still inconclusive.

    SGT: I read that you and your family won’t eat hamburgers. Is that true?

    Marler: Yes. Remember Ralph Nader’s book about the American car industry in the 1960s? Unsafe at Any Speed? Well, hamburgers are unsafe at any temperature. I won’t eat them and my family won’t eat them.

    SGT: What else won’t you eat?

    Marler: Raw oysters – or cooked, either. Yuck! Raw juice. Raw milk…

    SGT: I have to tell you. My family drinks raw milk, mostly because of Nina Planck and the Weston A. Price Foundation [WAPF]. Are you saying that despite the benefits, raw milk isn’t worth the risk?

    Raw Milk

    Marler: Ask the woman in California who drank it and is a quadriplegic. Or the kids in Connecticut, the kids in Missouri, the kids in California who are in the same boat – all because their parents gave them raw milk to drink.

    I have absolutely no respect for [WAPF president] Sally Fallon or the Weston A. Price foundation. They claim that raw milk will cure everything from allergies to autism; but any benefit raw milk has is anecdotal, at best. I think it denigrates the local, organic food movement to falsify information like that. What’s worse is that they won’t admit that milk-related bacterial outbreaks are on the rise – mostly due to the increased consumption of raw milk, thanks to the raw milk proponents telling everyone that it's good for you. Why can’t they just tell the truth and admit that there are risks associated with drinking it!

    So often the victims in these outbreaks are children. That’s who I see being most affected by the misinformation. I’m not sure that the mothers of these children, my clients, would look back now and say “I’m sure glad I fed my kid raw milk.”

    Sometimes I worry about the locavore/organic movement trying to spin so much of their product into this overlay of health and goodness that it completely discounts the risks. The law makes no distinction between Cargill and Farmer Bob. That wouldn’t be fair to the person who got sick. The Stephanie Smith case could just as easily have happened with raw milk.

    SGT: So no raw milk, no hamburger, no raw juice, no oysters, raw or cooked… anything else?

    Marler: No deli meat, especially hot dogs.

    SGT: Not even the grass-fed, all-beef, hormone-free, antiobiotic-free brands?

    Marler: No. Because of the risk of listeria. Just as E.coli has become ubiquitous in our food system, so has listeria – which, by the way is the number-one cause of miscarriages in the U.S. It is also particularly dangerous to the elderly and the immune-compromised.

    Listeria is another bacteria that thrives in our modern world, mostly because it loves the temperature of our refrigerators. So here’s the problem: People tend to buy hot dogs and deli meat and keep it in their refrigerators for a long time – much longer than fresh meat. But the longer it sits in your refrigerator, the more time a few Listeria bugs have to grow and multiply into many. Now, the human body has all sorts of systems to fight these nasty bugs. But the more bugs that are after you -- the more you ingest -- the more likely they’ll overpower your body’s defense system.

    So if you insist on eating deli meat, buy it very fresh and eat it very quickly.

    SGT: How do you feel about ammonia being used to kill E.coli in hamburger meat? Or irradiation to kill food-borne bacteria in produce? Are these viable options for keeping the food supply safe?

    Marler: You and I would probably agree that most of the problems with our food supply are caused by mass production. If I had a magic wand to wave, I would first correct the things that are done on a routine basis in American slaughter houses and CAFOs.

    There is so much room for improvement, starting with the overuse of antibiotics and the close confinement that makes them a necessity. It would be much better to prevent problems from happening in the first place rather than try to fix them as they are escaping into the food supply.

    As a human being, I’m conflicted. I have seen so much pain in these clients and in their families. Sitting across the kitchen table from a parent who’s lost a child to E.coli – it changes you bio-chemically. Unless you’re a complete automaton, you can’t go through that and not try to cover every possible way to make food safe.

    I’ve researched the effects of irradiation on meat and leafy greens. The technologies appear to be quite safe – though my friend, Marion Nestle, says you’re just “zapping the crap.” On the other hand, you want to prevent as many illnesses and deaths as you can. It would be nice if we could, some day, get our hands around the big food companies and change the way they do business. But, in the meantime, if we can’t do that, let’s use every alternative we have to protect kids and keep them from getting sick.

    Other than the foods I don’t eat, there are very few lines in the sand that I draw. My goal is to prevent illnesses. If intervention technologies, like irradiation and ammonia, can save lives, then I just wonder if they are the lesser of two evils.

    SGT: Minnesota’s senior senator, Amy Klobuchar, is sponsoring the Food Safety Response Act of 2009 to improve the way the federal government can respond to a nation-wide outbreak of food-borne illness. Are you familiar with this?

    Marler: I have spoken to her and her staff and I’m encouraged by what she’s doing. But, I have to say, it’s funny – I was in Washington D.C. 10, 12, 14 years ago arguing for the very same things that are still being discussed today. During that time, I have brought dozens of my clients to testify in front of Congress. And here we are -- still! I’ve been extremely frustrated with the pace of food safety legislation. That’s why we did the t-shirts. Have you seen those? They say “Put a Trial Lawyer out of Business. Pass meaningful food safety legislation before Thanksgiving.” And then there’s a picture of me.

    Put a trial lawyer out of business


    SGT: Maybe by next Thanksgiving. By the way, why is there still a vacancy for the head of the FSIS [Food Safety Inspection Service]?

    Marler: Because they haven’t hired me!

    SGT: Why not?

    Marler: As you can tell, more than most people, I have a pretty broad understanding what the issues are. But the Obama administration is not ready for someone as clearly outspoken as I am.

    Did you read the New York Times article about Stephanie Smith? The FSIS official that was interviewed said that his job was to balance food safety for consumers with the needs of food processing companies.

    [Note: Here’s the exact text he is referring to: “Dr. Kenneth Petersen, an assistant administrator with the department’s Food Safety and Inspection Service, said that the department could mandate testing, but that it needed to consider the impact on companies as well as consumers. “I have to look at the entire industry, not just what is best for public health,” Dr. Petersen said.”]

    Can you believe that? That is the problem! The purpose of the FSIS is to protect the consumer, not a company or an industry!

    [Note: The mission of the FSIS is, according to its website, “ensuring that the nation's commercial supply of meat, poultry, and egg products is safe, wholesome, and correctly labeled and packaged.”]

    But, in many respects, that’s the question being asked, whether you’re in the business of producing millions of pounds of hamburger or a hundred gallons of raw milk: how much money do you want to spend to potentially save one life? The reality is that we cannot continue to put economics, efficiency and profits ahead of the people’s safety. I can’t imagine, regardless of how much I support President Obama and what he’s trying to accomplish, I just can’t imagine that he’d let me sit in a cabinet meeting and say that out loud.

    It would be difficult for me to be in a situation where I would have to be a team player. I don’t mean that from an egotistical point of view, but, if [USDA] Secretary [Tom] Vilsack and the President told me to make the meat supply safer, then that would be my job.

    SGT: Last year, you published a list of the top 10 food safety challenges for 2009. Are there any changes to the list for 2010?

    Marler: Well, we didn’t see as many global recalls last year as I thought, and that’s good news. But other than that, the list will have to be carried forward into 2010. Not much has changed.

    There is one update: this is regarding toxic E.colis other than O157:H7. We've petitioned the USDA to list all E.colis as adulterants, meaning meat producers will have to test for all of them.

    [Note: Currently, only E.coli O157:H7 is listed as an adulterant, meaning it is the only E.coli strain that meat producers test for.]

    The USDA has until mid-January to respond. If they don’t, I will sue them.

    Also, there is growing concern over outbreaks related to petting zoos and county fairs. A lot of the bacteria that can kill you didn’t even exist when we were growing up. Just in the past several decades, these bugs have gotten bigger, faster and nastier. So we need to teach people to keep infants out of petting zoos. Our website, Fair-Safety.com, lists all the outbreaks that have occurred and all the precautions recommended by the CDC.

    SGT: What about number two on your list: “Outbreaks linked to local foods and/or farmers’ markets?”

    Marler: As I said before, my biggest concern with respect to local food is mostly related to raw milk. Just because something is natural or organic or so-called wholesome doesn’t necessarily make it safer. In people’s rush to justify a marketing pitch they tend to gloss over the very real risks. I was talking to a reporter earlier today about some of the food safety legislation and where it might be headed. Apparently, the local, small farmers are worried that the FDA come in and make them dependent on Monsanto. The reality is that all of these food safety bills carve out exceptions for local agriculture. But if you put your local product into a bigger bundle of products that gets distributed to a mass market, then you’ve got to play by the same rules as the big corporations.

    Supporters of local, organic, small farms have to realize that if food safety takes a back seat, then the whole system is at risk of collapsing.

    And just let me point out that you can count on one hand how many mom-and-pop farmers I've sued in 15 years. And the total number of farmers’ markets I’ve sued during the same period is exactly zero.

    SGT: Moving on now to a more personal question: What did you grow in your garden this year?

    Marler: Tomatoes – too many tomatoes; we were giving them away to everyone we knew. We had a pea patch. Lettuce. Ten corn stalks, pumpkins, zucchinis. Everything was organic. Everyone in our family participated.

    I grew up on a farm near the Hood Canal. My parents, who are now in their 80s, still live there. They have 10 acres of beautiful, rich soil. Their goal, when they moved there, was to be as self-sufficient as possible. They planted at least a full acre of vegetables, they had a root cellar, and every fall, they canned and froze. They also had dairy cows, beef cattle, pigs, sheep, horses, rabbits -- and every year we took a turkey to the fair.

    Being raised on a farm in the 60s and 70s, we never heard of outbreaks of E.coli O157:h7 and antibiotic-resistant salmonella. It was a more innocent time – a time before industrial agriculture changed our lives forever.