Three Washington children died and 600 others were sickened due to poisoning from E. coli O157:H7 served in undercooked Jack In The Box hamburgers.
Documents recently filed in U.S. District Court in Seattle by attorneys for those injured in the epidemic show that the company knew about but chose not to follow safe-cooking standards that would have killed the E. coli bacteria in their hamburger patties.
The company's reason, according to documents filed in court: "If patties are cooked longer ... they tend to become tough." That comment appeared in a company response to an employee in a Jack In The Box restaurant who was concerned that cooking to the company's standards left burgers underdone. That memo, obtained from company headquarters by plaintiffs' attorneys, was written in August, four months before the epidemic.
Had the company in 1992 followed state regulations, which mandate that hamburgers be cooked to an internal temperature of 155 degrees, the epidemic would have been prevented, health experts say. State officials say a state law superseded a federal guideline at the time of 140 degrees.
"Either they didn't believe in science, or they didn't read the literature," said Bert Bartleson, technical expert for the state Department of Health's food program, in an interview. "If they followed the standards ... no one would have gotten sick."
These days, Bartleson said, Jack In The Box is a "model citizen" when it comes to meeting these food safety standards. He said their burgers are reaching temperatures of 180 degrees.
Bartleson led the health department's investigation of Jack In The Box during the epidemic, and in the process, personally reviewed many of the documents that also appear in the court files.
After he and other state health officials linked the epidemic to Jack In The Box burgers, top company executives told the public, media, lawmakers and their own shareholders that they were never properly told about the state's cooking requirements.
But according to numerous documents from their own files in their San Diego headquarters - and included in court documents - Jack In The Box had been warned of tainted beef, undercooked burgers and improper cooking procedures as long as 10 months before the outbreak.
Company officials at the time, and today, say they did nothing wrong.
"We were following federal food codes, putting us in compliance," said Karen Bachmann, spokeswoman for Foodmaker, the parent company of Jack In The Box.
Bachmann said the company believed the quality of the meat was high and that the restaurants were cooking hamburgers to what the Food and Drug Administration said was a safe temperature.
Attorneys representing those who were injured in the E. coli epidemic disagree.
"Foodmaker made a conscious decision to disregard Washington law," one of the attorneys - William Marler of Seattle - wrote in a declaration to the court filed in his and related cases. He also asserted the company showed "total disregard for the health of its customers."
Diana Nole of Gig Harbor, whose 2-year-old, Michael, died in the epidemic, agreed. The Nole family settled with Foodmaker for $ 1.3 million last year.
"These guys had a responsibility to the public to provide safe, healthy food," Nole said. "It just disgusts me that they can play with peoples' lives like that."
Meat didn't meet standards
Foodmaker officials said this week they would not respond to specific accusations from attorneys, although they did offer some comment.
"We don't want to try the case in the newspaper," Bachmann said.
She said those suing her company filed the documents in court to put pressure on her company to increase settlements.
"We were willing to negotiate in the millions of dollars," she said. "But they were talking in the hundreds of millions."
Jack In The Box already has settled lawsuits with a number of plaintiffs, including the Noles and the families of two other Washington children who died in the epidemic - Celina Shribbs of Mountlake Terrace and Riley Detwiler of Bellingham.
Those cases were settled before many of the documents obtained by attorneys in the discovery process were filed in U.S. District Court. Judge Thomas Zilly is presiding over many of the 25 pending lawsuits, some of which are class actions. The documents, which include internal company records, test records and sworn statements by Foodmaker employees, show:
* Months before the epidemic, Foodmaker was notified by some county health departments of a new cooking standard mandated by the state, which required burgers to be cooked to 155 degrees. Many company managers and scientists also received and discussed a May 1, 1992, statement from the Bremerton-Kitsap County Health District detailing the new regulations.
* Foodmaker was aware of consumer and employee complaints about undercooked meat as long as six months before the outbreak. The corporation decided against making changes, documents show.
* Vons Companies Inc., which supplied hamburger to Foodmaker, repeatedly provided ground beef with E. coli levels that exceeded Foodmaker's standards. Vons' microbiological tests, which indicated only general levels of the bacteria - not specifically the deadly O157:H7 strain - show half of Vons' deliveries in the five months before the epidemic violated quality standards set in its contract with Foodmaker.
* Documents indicate Vons identified a higher-than-usual level of general E. coli contamination in the batch of hamburger that caused the epidemic. The batch was produced Nov. 19, 1992, more than a month before Jack In The Box began selling the burgers. According to depositions of Vons employees, Vons never notified Foodmaker of the E. coli level, as the company's contract required.
Hamburger patties from the tainted shipment were sent to Jack In The Box restaurants throughout the West. By mid-January, the epidemic became apparent to doctors and health officials in Washington. Within a week, the source was determined to be Jack In The Box, and more than 200,000 burgers were voluntarily recalled from the restaurants.
At a press conference on Jan. 21, 1993, Foodmaker president Robert Nugent publicly blamed Vons for the E. coli epidemic because the huge grocery store chain supplied Jack In The Box with their hamburger.
Foodmaker has sued Vons in Los Angeles Superior Court, claiming Vons was responsible for the outbreak. The case is pending.
Vons officials said they did not want to comment on the lawsuits or on the documents included in court files.
Told of new rules many times
Experts say hamburgers, however contaminated, would be safe to eat if cooked to 155 degrees. Washington regulations, which went into effect May 1, 1992, required all restaurants to meet this guideline.
Among the warnings about the new regulation was one sent to Foodmaker by the Bremerton-Kitsap County Health District on the day the regulation went into effect - a memo that was the subject of discussion a few weeks later at company headquarters.
According to depositions from Foodmaker employees, top managers discussed the new regulation at a May 21, 1992, staff meeting concerned with research and food quality - seven months before the outbreak.
Mary Beth Schaubel, a food technologist for Foodmaker, said in a sworn deposition included in the court file that the Kitsap statement was handed out at the meeting and discussed. In attendance were Ken Dunkley, Foodmaker's vice president of technical services, and Mike McQuitty, head of quality assurance for hamburgers.
"I do remember asking about this 155 (cooking) standard," Schaubel said.
Terri Prud'homme, another food technologist, said in a deposition that the discussion was led by Dunkley, who was in charge of tracking and implementing new regulations.
Bartleson, who led the investigation of the epidemic in 1993 for the state Department of Health, said Foodmaker was warned by more than just one memo.
"In addition to that, the Tacoma-Pierce County Health Department sent out two newsletters and a copy of the new regulations to every restaurant in Pierce County, including all of the Jack In The Boxes," Bartleson said. "There are about 15 of them, so at least 15 copies of the regulations and 15 newsletters were sent. And we sent it to headquarters.
"To say they were informed multiple times is accurate."
After Jack In The Box burgers were linked to the epidemic, Nugent asked his employees to look for any evidence that the company had been notified of changes in state law, according to multiple court-filed depositions.
They found the Kitsap-Bremerton memo and sent it to Dunkley. When Nugent testified before a U.S. Senate Agriculture subcommittee in February 1993, he was asked by Sen. Tom Daschle (D-S.D.): "You were not aware of the Washington state regulation of 155?"
Nugent replied: "We were not aware of the Washington state regulation."
Nugent continued to contend that Foodmaker was not properly informed of the state regulation before the outbreak. According to a transcript of a Feb. 12, 1993, press conference following a shareholder's meeting, Nugent stated "the appropriate management was not alerted and the necessary action therefore was not taken to effect the change necessary to get to the 155 degrees."
Foodmaker officials still say they were not properly informed.
"We did not know about the new regulations," Bachmann said. "We followed the (140 degree) FDA code."
Jack In The Box restaurants in Pierce and Whatcom counties also were informed of the 155-degree ground beef requirement several times in the months preceding the epidemic by local health departments. Inspectors gave the notifications when they found burgers were being undercooked, according to documents from Foodmaker files that were included in the court file. These restaurants served tainted burgers during the epidemic.
The state standard should have taken precedent, according to Bartleson and other state health officials. But Foodmaker food-safety managers opted to go with the more lenient federal standard of 140 degrees, which was still acceptable in 12 other states where Jack In The Box operated.
In a deposition, Mohammad Iqbal, corporate vice-president of marketing for Foodmaker during the epidemic, recalled McQuitty's reaction to Washington's law at the meeting.
"Mike (McQuitty) may have said that it's only one state...," Iqbal said.
Foodmaker still contends they did not violate state cooking standards.
"We were essentially in compliance," Bachmann said.
Bartleson of the health department said there was no such thing as "essentially compliant."
He said he was among those who tested the company's burger grilling as the state attempted to determine the source of the E. coli poisoning during the outbreak. He said their cooking methods were substandard. Many burgers weren't even reaching the less-stringent 140-degree cooking standard, he said.
"Who are they kidding?" Bartleson asked. "Their argument is 'We didn't know about the 155-degree requirement.' But the thing is, they weren't even close to 140."
A study of the outbreak published in the Journal of the American Medical Association by investigating scientists states Jack In The Box "did not achieve Washington state required internal temperature for hamburgers."
"Raw in the middle"
Attorney Terry Lumsden of Tacoma, who is representing the family of 4-year-old Shanika Baldwin, said his clients are appalled by the news. Shanika Baldwin was sickened in the epidemic.
"They're absolutely livid, outraged," he said of the Baldwins.
Complaints of problems with Jack In The Box burgers were made well before the epidemic. One involved a customer complaint of an undercooked hamburger at a Lakewood restaurant in 1992. "It was raw in the middle," the customer complained.
The customer "returned the burger and was served another raw patty," according to a Tacoma-Pierce County record of the complaint, made three months before the outbreak.
In June 1992, an employee at an Arlington Jack In The Box, informed Foodmaker headquarters that burgers needed to cook longer, according to a record titled "In The Suggestion Box."
"I think regular patties should cook longer," she wrote. "They don't get done and we have customer complaints. If we change this, we will be making our burgers done and edible."
Her suggestion was taken seriously by Foodmaker, yet ultimately rejected, documents show.
Cooking test results compiled two weeks later show that Foodmaker tested hamburger grilling at various temperatures and cooking times. The tests showed none of the burgers reached the federal 140 degree standard, let alone the 155 degree Washington requirement.
Foodmaker spokeswoman Bachmann said the test was performed by a company intern, and other company researchers could not confirm the results. She said the company had performed numerous tests on safe hamburger cooking.
Nonetheless, the intern's testing was the basis of a corporate response to the Arlington employee's suggestion. "The patties are tougher when cooked longer," said a memo from headquarters, dated Aug. 28, 1992. "Therefore, we do not recommend increasing the cook time at this time."
Copies of the statement were sent to Dunkley and McQuitty.
The Arlington employee said she never received letters the company sent to her about the testing and the company's recommendation. She had quit to care for her infant son. But she's glad she made the suggestion.
In an interview, the woman - who asked not to be identified to protect her privacy - said she usually grilled burgers longer than the Jack In The Box timer called for.
"I didn't know anything about that disease" at the time, she said. "As a human being I wouldn't send out a raw burger. You don't do that."
Industry awakened to danger
When the E. coli epidemic occurred, Foodmaker issued a public statement denying any prior knowledge of receiving tainted meat.
"Up to this point we have been reluctant to say that the source of the problem was contaminated meat, simply because we did not want to speculate until test results were in," Nugent said at a press conference at the peak of the outbreak.
According to their contract, on file in court, Foodmaker and Vons agreed in 1982 that Vons would frequently test hamburger meat for a variety of contaminants, including all forms of E. coli. These Foodmaker standards were still in place in 1992.
The tests performed by Vons didn't specifically single out the deadly strain of E. coli O157:H7. And Vons employees said in depositions that they never notified Foodmaker of any unusual levels of E. coli.
But Vons' test results indicate that in the five months just prior to the delivery of the meat that caused the epidemic, half of the shipments sampled had E. coli levels that exceeded Foodmaker's standards, according to reports in the court file.
Foodmaker required that Vons deliver meat with no more than 3 colonies per hundred grams. Most experts agree this level was not attainable, but Vons often didn't even come close.
The shipment of Nov. 19, 1992, the source of the outbreak, tested at 430 colonies per hundred grams. One week earlier, Vons made a shipment of more than double that level.
State health department investigators reviewed these test records, and the agreement between Vons and Foodmaker.
The contract between Vons and Foodmaker states that it was the responsibility of Vons to notify Foodmaker if test results showed levels of E. coli exceeded their contract stipulations.
"They were quality-control standards, not state or federal standards," said Bartleson. "I thought it was strange they weren't adhering to them."
Foodmaker officials contend, however, that this breach of contract was directly responsible for the outbreak.
"We do feel there was a contractual agreement that was violated," Bachmann said. "What Vons was asked to do was provide a wholesome product."
Ultimately though, it was up to Foodmaker to decide if meat should be shipped to their restaurants, according to their agreement.
The epidemic awakened the industry nationwide to the dangers of O157:H7, Bartleson said.
"No one wants to be the 'next' Jack In The Box," he said. "Especially not Jack In The Box."
GRAPHIC: COLOR PHOTO ; The News Tribune, 1993: Diana Nole, right, lost her 2-year-old son, Michael, in the E. coli epidemic. 'These guys had a responsibility to the public to provide safe, healthy food,' the Gig Harbor woman said recently. After Michael's death, Nole personally distributed information to warn consumers about E. coli. (A16)