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Spinach suits have familiar taste to Dole

Fighting lawsuits filed by sickened spinach-eaters may seem like familiar territory for Dole Food Co. Inc.

The Westlake Village, Calif.-based food giant has been named as a defendant, along with Natural Selection Foods, in five cases filed by people who contracted an E. coli infection allegedly after eating the companies' bagged spinach.

Dole settled more than four cases earlier this year brought by people who also became ill with E. coli infections in an outbreak last year tied to the company's bagged lettuce.

Dole settled four lettuce cases, three in Minnesota and one in Oregon, in May and June, without disclosing the terms of the resolutions and binding the parties to confidentiality agreements.

For the moment, the companies are working behind the scenes with their insurers and attorneys to decide how the new spinach cases will be handled. Dole has not yet filed replies to the five lawsuits.

The latest outbreak, which began last month, has killed one person and sickened 183 in 26 states as of Sept. 26, according to the U.S. Food and Drug Administration. Of the 95 people hospitalized, 29 have a kidney failure condition.

Sarah Brew, an attorney at Greene Espel in Minneapolis who is representing Dole, declined to say whether the company will approach the spinach lawsuits in the same way as it did the lettuce cases.

While Dole actually produced and bagged the lettuce in the earlier cases, the spinach was produced by Natural Selection in the recent outbreak, but sold under the Dole label and other labels, such as Trader Joe's.

"We don't comment on pending lawsuits," said Dole spokeswoman Marianne Duong, referring calls to Natural Selection and saying "their approach is very different from us."

Martin Schenker, an attorney with Palo Alto, Calif.-based Cooley Godward Kronish, who is advising Natural Selection as corporate counsel, said it's not clear yet which firms may represent the company in the spinach lawsuits.

"We haven't gotten very far down the road in terms of a legal strategy yet because we're really trying to solve the problem," said Samantha Cabaluna, a spokeswoman for Natural Selection.

The results of the government investigations will largely shape how discussions in the lawsuits unfold, said David Ernst, an attorney at Portland, Ore.'s Bullivant Houser Bailey who would only say that he has been contacted by potential clients. "You do have to let the government authorities do their work," Ernst said. "They're the experts and they definitely do lead the way."

The government's conclusions could show the spinach came from somewhere other than California, and that may leave open which companies were involved, Ernst said. Still, the sooner the parties can discuss the issues in the matter, the better for everyone, he said.

There were additional settlements beyond the four lawsuits in the aftermath of the earlier lettuce E. coli outbreak, said Bill Marler, who represented plaintiffs in the lettuce cases and who has filed all five of the lawsuits so far resulting from the spinach outbreak.

Grintjes v. Dole and Natural Selection, No. 06-0997 (E.D. Wis.); Leafty v. Natural Selection, No. 06-00787 (D. Utah); Zientek v. Dole and Natural Selection, No. 06-977 (E.D. Wis.); Wellborn v. Dole and Natural Selection, No. 06-1313 (D. Ore.); McCoy v. Dole and Natural Selection.

He declined to say how much his clients received in the prior lettuce settlements.

Marler of Seattle-based Marler Clark is representing 85 people so far who allege they were victims of the spinach E. coli outbreak. He said he expects the cases to be strictly about products liability and proving that his clients became ill because of a pathogen in the spinach.

As in the past lettuce cases, Marler will assert negligence, though he doesn't need to prove that to prevail on the liability issue.

"We'll have a full-court press on the defendants, keep the pressure on until they do the right thing for these people," Marler said.

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