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E. coli lawsuits restored

Meat producers target of ruling

By David Migoya

Denver Post Staff Writer

Wednesday, May 14, 2003

The meat industry can be held accountable for selling any kind of meat - not just ground beef - that contains potentially lethal pathogens, a Wisconsin appeals court ruled Tuesday.

The decision by a three-judge panel reinstates a handful of Milwaukee lawsuits that blame Excel Corp. and its Fort Morgan slaughterhouse for an E. coli outbreak that sickened more than 60 people and killed a 3-year-old girl in 2000.

The judge who dismissed the lawsuits early last year relied largely on a 1999 U.S. Department of Agriculture rule that says whole meat, such as steaks and roasts, that has E. coli on its surface - even if it's the deadly 0157:H7 variant of the bacteria - can be sold. Cooking, the USDA says, kills E. coli on the surface of meat.

Federal law says that raw meat that is adulterated, or unfit for consumption, cannot be sold. The appellate court said Congress decided in 1996 that the word "adulterated" extended to all cuts of meat, not just to hamburger, and the USDA lacked the authority to narrow the definition.

Excel will appeal to the Wisconsin Supreme Court, spokesman Mark Klein said.

"It would appear the court is disagreeing with the federal government as to what is adulterated product," Klein said.

The key to the ruling, said Denis Stearns, the lawyer who successfully argued the appeal, is corporate accountability.

"The court held that Excel should be accountable to those who are injured by their products rather than shielded from liability by the Federal Meat Inspection Act, a statute intended to protect the public, not meat companies," he said.

The lawsuits allege the company produced contaminated tri-tip, a cut of sirloin, then sold it to Sizzler restaurants. Despite warning labels to handle the meat carefully, workers at two restaurants used unsanitized countertops to prepare the tainted meat and cross-contaminated fruit destined for salad bars.

All the victims ate from one of the Sizzler salad bars, including Brianna Kriefall, who died after eating melon.

"The court also rejected the industry's argument that it's the consumer's fault if they get sick," Stearns said.

The ruling could mean companies that produce any tainted meat, not just tainted hamburger, can be sued much like any manufacturer that produces a defective product.

Meat industry experts said it's unclear what impact the ruling could have.

"It has the potential to set things in motion that would be inconsistent with how the Meat Inspection Act is administered," said Mark Dopp, senior vice president and general counsel for the American Meat Institute, a trade group that supported dismissing of the cases.

"It could open the door to cases being filed on not only E. coli 0157:H7, but all the other pathogens on raw products that we can't make sterile as a practical matter," Dopp said.

Consumer groups praised the ruling.

"This is a striking victory," said Karen Taylor Mitchell, executive director of Safe Tables Our Priority, a group that represents families and victims of food-borne illnesses.

The Sizzler chain last year settled with the victims who sued.

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