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Supreme Court Ruling Upholds Court of Appeals decision allowing Wisconsin citizens to sue when injured

MILWAUKEE, WI — The Wisconsin Supreme Court today issued a ruling that upholds an earlier Court of Appeals decision holding that meat supplier Excel can be found liable under state law for supplying adulterated meat to Milwaukee Sizzler restaurants. Lawsuits filed against Excel had alleged that the meat Excel sold caused a widespread outbreak E. coli O157:H7 infections and the death of three-year-old Brianna Kriefall in 2000. Marler Clark, the Seattle law firm nationally known for its successful representation of victims of foodborne illness, and Fox, O’Neill & Shannon, a respected Milwaukee law firm, represented named plaintiff Ervin Lesak among others, including three children who suffered from hemolytic uremic syndrome “HUS” in lawsuits against both Excel and Sizzler.

Excel had won an earlier motion for summary judgment in which the trial court agreed with Excel’s argument that it could not be held liable for injuries sustained by plaintiffs because it was shielded from liability by the Federal Meat Inspection Act (FMIA). But the court of appeals ruled that Excel could be held accountable under state law to those who were injured by its meat products. And rather than being safeguarded by the FMIA, the court of appeals said that the statute was intended to protect the public, not meat companies. Summarizing its ruling, the Court stated “that federal preemption does not close the doors of Wisconsin's courts to claims against Excel.”

“By declining to review the Court of Appeals decision, the Wisconsin Supreme Court let stand a crucial ruling protecting public safety,” said Denis Stearns, the Marler Clark attorney who authored the winning brief opposing Supreme Court review. “In arguing that federal law should override state law, Excel argued that uniformity mattered most. In rejecting that argument, the Court of Appeals ruled that public safety mattered most. The Supreme Court has accepted the correctness of that ruling in denying Excel’s petition for review meaning the lawsuits can proceed against Excel.”

“This does not necessarily put an end to the appeal,” Stearns continued. “Because the appeal deals with an issue of federal law, Excel could seek review by the United States Supreme Court. So for that part we’ll have to wait and see. But in the meantime our clients continue to wait for their day in court, a day that will no doubt eventually arrive. And when it does, we expect to prevail.”

This is second court of appeals decision involving issues relating to E. coli O157:H7 upheld this month. On September 3rd the Washington Supreme Court declined to review a decision upholding a $4.6 million award to 11 children injured in a 1998 E. coli O157:H7 outbreak that was linked to undercooked taco meat served as part of a school lunch at an elementary school. Marler Clark represented the school children in this case, both at trial, and on appeal. Concluded Stearns: “It feels great to know that we made some good law this month, law that might just make a difference, and save lives.”



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