Quality Assurance and Food Safety Magazine | By Lisa Lupo
April 3, 2020
Photos by Jake Gravbrot
On one hand: “You have to recognize what an amazing job food production is doing in the world, especially in the U.S. Given the amount of people that we feed, the relative safety of the food supply is pretty amazing given how it has become more and more complex. … I’ve seen some in industry step up and do an amazing job.”
On the other hand: “The things I see on a day-to-day basis are the people negatively impacted by food poisoning, and it’s hard not to look at that in the context of the bigger picture. I’ve known kids so injured, they can’t walk. I’ve been in the room when a child was removed from life support. I’ve spoken at funerals. … I’ve seen the devastation of food poisoning.”
Bill Marler is the food industry’s most (in)famous foodborne illness attorney. As managing partner of Marler Clark, he is the leading defender of victims who suffer life-altering injury or death from food poisoning — sitting on the other side of the courtroom from the food companies whose contaminated products are implicated in those outbreaks. In the 27 years since his first foodborne illness case representing victims of the Jack in the Box E. coli outbreak, he has represented thousands of individuals in claims against food companies. And he has attained multi-million-dollar landmark settlements for them.
But he is not just about litigation. Rather, Marler is an active pro bono advocate for a safer food supply working with nonprofit food safety and foodborne illness victims’ organizations; helping spur the passage of FSMA; and speaking to the industry on “how to prevent foodborne illness … and prevent me from showing up.”
In February, QA Editor Lisa Lupo sat down with Marler to discuss just that along with his thoughts and advice on prevention; litigation, liability, and fault; outbreak warning signs; consumer communication; and food safety culture.
QA. Let’s start with the basics of litigation in a foodborne illness case. Say the implicated food manufacturer has a very robust food safety program, GFSI implementation, regular audits, and food safety culture. Will that protect the company in a lawsuit?
Marler. Only if you don’t poison anyone. Due diligence is not a defense.
QA. Well, that certainly starts things off on a definitive note. Does it mean there’s nothing the food industry can do to keep from getting sued?
Marler. This shouldn’t make you feel resigned to not being able to do anything. Doing all these food safety things helps. For example, a test-and-hold program can keep contaminated food from getting to market, so people don’t get sick, and you don’t get sued. Interventions knock down the bacterial load, so it doesn’t get in the market; you don’t get sued, because no one gets sick. Use auditing, use all the tools in your toolbox to prevent illnesses, which should be the real goal.
In food safety there are always warning signs before an outbreak. The real question is: What are you going to do to allow your operation to stay ahead? The margins (in the food industry) aren’t great. I get it, but you have to ask yourself, what are the alternatives? Do you ignore the problem? Or do you grapple with it?
If you do everything you can to prevent illness, you’re likely to prevent illness. And if that’s not something you think is doable, then maybe you’re not in the right business, or you’re just a person who says, “Shit happens.” I feel like that’s where we’ve wound up in the romaine problem.
QA. Can you further discuss that?
Marler. If you think about how many billions of servings of romaine lettuce are eaten, you may think, “Well, only 500 people got sick. Only five died.” Statistically that’s true, but what that says is that statistically you’re ok with illnesses and deaths. If that’s the case, what are you going to do about it? If you’re going to treat it as something that is just inevitable, it strikes me that, as an industry, you should do more than simply say, “Oh, if it’s inevitable, we’ll leave it up to Marler to sue our asses.”
The reality is that not everyone hires a lawyer, not everyone hires me, not everyone makes a claim; so the industry, for the most part, gets a pass on poisoning people. I certainly hold them accountable for the people who hire me, but in the scheme of things, does me filing hundreds of millions of dollars of lawsuits change industry a lot?
I’ve been around the leafy green industry long enough now to see the changes they’ve tried to make post-spinach 2006. The outbreaks we know about are clearly linked to environmental contamination. There’s clearly something going on that putting up a fence, washing, and testing are not solving.
Should we really be growing a ready-to-eat product within a stone’s throw of a 100,000-cow concentrated animal feeding operation (CAFO); should we be using untreated water to irrigate or aerial spray? Aren’t we just asking for a problem? Both of those things are tough public policy calls to the point where industry and government will have to say we’re going to deal with that, or say it’s ok to have hundreds of people sick and a bunch die, because it seems consumers quickly forget and come back to eating a product — it’s kind of like cigarettes.
But when you go to an ICU with a family who unplugs their child from life support because they ate a food product that killed them, it’s hard to step back and say, we feed hundreds of millions of people successfully every day.
QA. So, having a robust food safety program with substantial documentation and verification systems doesn’t absolve a company, but can it reduce the punitive damages in a food poisoning or outbreak litigation?
Marler. Let’s say there’s two companies that simultaneously have a Salmonella outbreak. One company has the most robust food safety system in the world, they go to every conference and read every magazine, they do all the things one should do to prevent foodborne illness. Another company — say Peanut Corporation of America (PCA) — does nothing to prevent illness; they knowingly ship Salmonella-tainted product. What happens to those two companies? PCA executives go to jail for 28 years.
So, is there a difference between that and a company that tries to do everything? The answer is “Yes.” It’s likely you’re not going to poison somebody, and if there is something that slips through the cracks, you won’t be held liable criminally; you won’t be held liable for punitive damages. So, there is a reason to work hard.
There also are a lot of cases the food industry has to deal with that are not science based. For example, I got a call from a person who wanted to sue a restaurant where he had eaten the day before, for having caused him to get Hepatitis A. I told him no, it has to have been from something else, the Hepatitis A incubation period is two weeks. You can protect yourself from those cases with science.
QA. What are the most common mistakes you’ve seen in the food industry?
Marler. The most common mistake is not paying attention to problems before they blow up into something worse. There’s not one outbreak I’ve ever been involved in that didn’t have warning signs — though I do get the benefit of hindsight. Take PCA as an example. I think it’s a pretty big warning sign when you’re getting positive Salmonella tests, and then you start forging documents to say that it’s a negative. They didn’t have a system to fix that.
Or consider Jack in the Box, which actually started in December 1992. E. coli O157:H7 was not a reportable disease in California in 1992, so there was a cluster of diseases in California that no one knew about; the meat got shipped to Washington; and the thing blew up. Almost more importantly, the state of Washington had changed its food code to 155° internal temp (for hamburger), told Jack in the Box — told all the restaurants. Jack in the Box knew about it, but because all the other states were 140°, they made the decision that because they were in all these other states they weren’t going to twist their process to help one state; instead of asking itself why Washington was doing that: what’s the food safety implication of that? And saying, maybe what we should do is raise everybody’s requirement.
Six months before the 1996 Odwalla unpasteurized juice E. coli outbreak, Odwalla tried to sell its juice to the U.S. Army. The Army told them no, saying the juice was not fit for human consumption. If you were told that by the Army, do you think you may have thought about changing your procedures?
So, do you have the people and processes to recognize a problem and communicate the problem to the people who can make a decision, so you don’t cause an outbreak?
QA. What is the manufacturer’s liability if a contamination originates in the upstream supply chain?
Marler. Food is a product. It’s no different than a car. If you’re a manufacturer of product, you are strictly liable if it’s defective. Say a car had a leaky gas tank — you may not have made it, but you added it to the car, so you are the manufacturer. In the same way, if you’re a taco manufacturer and you add cilantro to your product that turns out to be contaminated, you’ve added it, so you’re liable. So is the cilantro producer. The question is: Did you make someone sick? If it can be proven that a product caused an injury, the manufacturer is at fault.
QA. Care in handling and cooking of foods by consumers is considered a significant aspect of food safety. Is the fact that a food was not properly handled post-production a defense in litigation for the producer? What responsibilities do consumers bear?
Marler. The law tends to look at things very black and white: us vs. them. When you go into a courtroom, there is 100% fault; how that fault gets allocated will be determined by the jury. Say there’s company A and plaintiff B. If company A produced a Salmonella-tainted chicken and plaintiff B got sick, the fight will be: How do you allocate fault between them, presuming the consumer cooked the product or cross-contaminated the product?
But let’s say plaintiff B is a 10-year-old kid. How will the jury allocate fault between a giant corporation and a 10-year-old kid? What if plaintiff B is a busy soccer mom with four children; one of the kids unloads the groceries, gets chicken juice on the counter and wipes it with a towel. How will they allocate fault? What if plaintiff B were Bill Marler? They’d probably allocate most of the fault to me.
So just saying consumers have responsibility is a nice thing to say, but in real practical terms, how does that work? All consumers are different; not every consumer reads food safety magazines, and not every consumer is a microbiologist. Most consumers don’t even know how to say Salmonella. And we know, for a fact, that most consumers don’t use a thermometer.
It’d be one thing if we had clarity on the message, but consumers get all kinds of mixed messages. Most of the time consumers are, apparently, doing a pretty good job, because we don’t have everyone getting sick all the time.
So I think that broadly, abstractly, do consumers bear responsibility? Certainly they do. But you have to look at it in the context of: who is the person consuming? I think what it comes down to is consumers are very different, very few know anything about food safety; and then they’re given incredible mixed messages. It’d be one thing if the label on chicken said, “This product is likely to contain Salmonella and Campylobacter. Handle this like it could kill you.” If the industry wanted to put a label like that on a product, then I think they’d have a better fighting chance in the courtroom against a consumer.
QA. You’ve discussed the lack of transparency by both the food industry and FDA. What do you see as the issues, and why are they a problem?
Marler. When we learn about how many outbreaks we don’t know about, that FDA and CDC don’t tells us about, it skews consumers’ thoughts about whether or not the product is safe. Look at the last summer’s outbreak that FDA finally announced in November — because I knew it existed and I told (FDA) that I was going public with it unless they made the announcement. The industry knew, the FDA knew, most labs knew that there was an outbreak that went on in the summer of 2019, but the consumers didn’t know about it. FDA said there was no actionable thing consumers could do. But that’s pretty much true of every leafy green outbreak. By the time they’re figuring out the outbreak happened, it’s off the shelves; consumers ate the evidence. So if the analysis is that we’re only going to announce something if the consumer can do something, why have any outbreak announcements?
The food industry is so broad, and it’s further complicated by imports and issues of oversight. I think in the short and long run, industry will never be able to count on government to help them, so they will have to help themselves. I think in a perfect world, we would have more government control of food safety, because it evens the playing field for everyone. The wealthier companies and poorer companies get treated the same, or should be, and everyone is forced to play at the same pace for the same safety issues.
One of the pushbacks I get is, “Oh you want it to be public so you get the cases.” I get the cases! That’s how I found out there was an outbreak.
The point is that consumers have a right to know. We, as consumers, pay the FDA’s and CDC’s salaries. They should be responsible to us, not to the industry. And the industry should be responsible to consumers by giving them knowledge about whether their product is safe or not.
If you want the capitalist consumer-oriented marketplace to work effectively, consumers need to know as much information as they can get. It’s never going to be perfect because a lot of people have no idea what caused them to get sick.
I think bringing transparency to bear against an industry is the right thing. Sun is the best sanitation.
QA. How much of an impact do you believe your, and others’, litigation has had on improving food safety for those who have been sued — and those who have not?
Marler. I think lawyers like to think that lawsuits and money judgments change behavior; I think I’m not so egotistical to think that’s completely true. So 25 years ago I stated doing other things like speaking at conferences, being involved in legislation, making sure that people’s stories got told. Do I think all of that in combination has had a positive impact on the food system? Yes. Have there been other people and other things who have had a bigger impact, positively? Certainly. But I think the combination of all the things I do has had some positive impact.
QA. Most food safety professionals agree that food safety culture is critical, but there is no uniform consensus on implementation, measurement, etc. What are your thoughts on this?
Marler. What if there had been one person at PCA who said, we can’t be manufacturing Salmonella tests, who went to management and said we can’t do that, and then got fired and went to the media or the police? Obviously that’s the far extreme. With Jack in the Box, shouldn’t somebody have gone to someone at food safety, and someone at food safety have gone to the CEO and said, “There’s been studies, there’s an E. coli problem. McDonald’s had it in 1982, so we should probably be worried about this.”
Do you have a system in place — and I think it dovetails into culture — that allows people to pay attention to things that can turn around and bite them?
To me, the idea of HACCP, is in some respects simple. It’s so simple. I’m big into making lists of things to do. So when I look at a case, I look at the good parts and bad parts and think about what I need to do to fix the bad parts and make the good parts even better. In the same way, I look at the manufacturing of food products. One of the goals is obviously to increase sales, and we don’t want to poison people. Those two things are not mutually exclusive.
If you’re going to be a serious player, you have to pay attention to details and you have to pay attention to the things that are coming at you and make sure you’re aware of issues.
Lawyers spend three years (in law school), and almost all that you’re doing is spotting issues. That’s what lawyers are trained to do. When you’re taking the law exam, you get credit for being able to see the problem. You get credit for applying the law to the problem, but you get as much credit for seeing the problem. What we’re trained to do is to find the problem, which is why people hate lawyers. The training is to look for problems that allow us to actually see them. I think that’s part of the problem in the food industry, we don’t figure out ways to train people to look for problems or be aware of them.
So if there’s one bit of advice, it’s to create a system that allows people to be aware and that reacts to that awareness. That’s how you prevent foodborne illness and that’s how you prevent me from showing up.
The author is Editor of QA magazine. She can be reached at llupo@gie.net.
Marler Perspectives
Follow Bill Marler throughout the year at:
Marler Blog (https://www.marlerblog.com)
Food Poison Journal (https://www.foodpoisonjournal.com)