Food Poisoning Lawyer & Attorney : Marler Clark : Marler Blog

First it was Tomatoes, now it is Peppers? Jonathan Rockoff of the Baltimore Sun has continued on the trail of the likely ingredients of salsa that has sickened nearly 1,000 across the country over the last three months. However, like tomatoes:

So far, none of the jalapenos taken from restaurants and from the homes of those who became ill have tested positive for Salmonella Saintpaul. Echoing federal officials, who said this week that tomatoes remain the prime suspect, the health officials said that tomatoes cannot be ruled out as the cause of the outbreak. Investigators have been collecting samples of another possible suspect, cilantro, though the herb is less likely to be the source, said the officials, who spoke on condition of anonymity because the investigation is continuing.

One health official involved in the investigation said "loose ends" are keeping tomatoes under suspicion, but the official said they could be accounted for easily. The official said evidence is "piling up" that indicates that jalapenos are to blame. 

"There's certainly no shred of doubt in my mind," the official said. Another health official was more cautious, saying that the evidence is pointing to peppers but that there is not yet enough information to rule out tomatoes.

Hmm, now it is clear?

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As of 5pm EST, July 2, 2008, 41 confirmed cases have been linked both epidemiologically and by molecular fingerprinting to this outbreak, 21 in Michigan and 20 in Ohio. Onset of illness in these patients occurred from 5/30/08 to 6/20/08. Twenty-two ill persons have been hospitalized. One patient has developed a type of kidney failure called hemolytic-uremic syndrome (HUS). No deaths linked to the outbreak have been reported. Twenty-four (59%) patients are female. Patients range in age from 4 to 78 years with a median age of 20 years.

State health and agriculture departments have tested ground beef recovered from patient residences and purchased at Kroger® retail stores in Michigan and Ohio. Molecular fingerprinting testing conducted by the Ohio and Michigan Departments of Health and Agriculture Laboratories, in collaboration with PulseNet, the national molecular subtyping network for foodborne disease surveillance, on E. coli O157:H7 isolates isolated from these ground beef samples have confirmed the isolates to be the outbreak strain of E. coli O157:H7.

On June 25, 2008, a recall was announced for ground beef sold at Kroger® Co. Stores in Michigan and Ohio. On June 30, 2008, a second recall of 531,707 pounds of ground beef components from Nebraska Beef Ltd. was announced. On July 3, 2008, Nebraska Beef Ltd. expanded the June 30 recall to include all beef manufacturing trimmings and other products intended for use in raw ground beef produced between May 16 and June 26, 2008, totaling approximately 5.3 million pounds.

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922 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 40 states and the District of Columbia.  Two new states, Iowa and Louisiana, report ill persons. The number of ill persons identified in each state is as follows: Alabama (2 persons), Arkansas (10), Arizona (45), California (8), Colorado (12), Connecticut (4), Florida (1), Georgia (22), Idaho (4), Illinois (91), Indiana (14), Iowa (2), Kansas (17), Kentucky (1), Louisiana (1), Maine (1), Maryland (29), Massachusetts (22), Michigan (7), Minnesota (2), Missouri (12), New Hampshire (4), Nevada (11), New Jersey (6), New Mexico (95), New York (26), North Carolina (10), Ohio (7), Oklahoma (23), Oregon (10), Pennsylvania (8), Rhode Island (3), South Carolina (1), Tennessee (7), Texas (356), Utah (2), Virginia (29), Vermont (2), Washington (4), Wisconsin (10), and the District of Columbia (1)

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I admit it. I know too much. I have been to too many slaughterhouses and Hospital ICUs – my family does not eat hamburger.  I would not eat it, I do not cook it and I certainly do not serve it.  That is my tip.  Just say No!  Or as I told Misti the Columbus Dispatch reporter:

Most cooks don't consider that their food might be poisonous, said William Marler, a Seattle lawyer who represents people sickened by contaminated food.

But Marler doesn't have to worry much about etiquette at the barbecue.

He's never invited.

However, for those not able to remain just tempted, the Columbus Dispatch has a list:

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Well it is great to see that our exports are picking up given the tough business climate we are in.  However, I am not sure exporting ill people across the Canadian Border is really the way to pick up new business.

Canada finds first case linked to U.S. salmonella outbreak in returning traveller

Canadian authorities have found a case of Salmonella Saintpaul, the strain behind the massive salmonella outbreak in the United States.  The Public Health Agency of Canada says a person from Ontario was sickened by a strain of the bacteria with the same genetic fingerprint as the one responsible for the U.S. outbreak. The person, who became sick in early June, had just returned from travelling in the United States when the illness struck.  Agency epidemiologist Andrea Ellis says it seems clear the person became infected south of the border.  She says there's no indication that the contaminated food responsible for the U.S. outbreak has made its way to Canada.  The U.S. Centers for Disease Control says 922 cases have been confirmed in 40 states and the District of Columbia.  While earlier in the outbreak it was thought certain types of tomatoes were responsible, the investigation has been broadened to look at whether ingredients that go into fresh salsa could be the cause

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Well, my guess last night was correct, FSIS just issued this release:

Nebraska Firm Expands Recall of Beef Products Due To Possible E. coli O157:H7 Contamination
Recall Release CLASS I RECALL
FSIS-RC-022-2008 HEALTH RISK: HIGH

Nebraska Beef, Ltd., an Omaha, Neb., establishment is expanding its June 30 recall to include all beef manufacturing trimmings and other products intended for use in raw ground beef produced between May 16 and June 26, totaling approximately 5.3 million pounds [2,650 Tons], that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today.  This recall is being expanded based on the ongoing epidemiological and traceback investigations of a foodborne illness outbreak.

Here is the kicker and the likely killer of Nebraska Beef:

FSIS has concluded that the production practices employed by Nebraska Beef, Ltd. are insufficient to effectively control E. coli O157:H7 in their beef products that are intended for grinding. The products subject to recall may have been produced under insanitary conditions.

The products subject to recall were further processed into ground beef at other firms, and will likely not bear the establishment number "EST 19336" on products made available for direct consumer purchase.

The epidemiological investigations and a case control study conducted by the Michigan and Ohio Departments of Agriculture and Health and the Centers for Disease Control and Prevention determined that there is an association between the ground beef products and 40 illnesses reported in Michigan (21) and Ohio (19). The illnesses were linked through the epidemiological investigation and by their PFGE pattern, or DNA fingerprint, found in PulseNet, a database maintained by the Centers for Disease Control and Prevention. Also as a result of the investigation, on June 25 FSIS announced a recall of ground beef products sold at Kroger retail establishments in Michigan and in Central and Northwestern Ohio.

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Today, Kroger expanded its recall of some ground beef products to its stores in more than 20 states, saying the meat may be contaminated with E. coli.  Kroger's recall stems from meat obtained from Nebraska Beef Ltd. that has been linked to some 50 illnesses reported in Michigan and Ohio between May 31 and June 8.  Nebraska Beef has recalled from wholesalers and other processing companies nearly 532,000 pounds of meat produced on five dates between May 16 and June 24.  Interestingly, Nebraska Beef’s recall is for trim and intact cuts of meat, but not hamburger.  Does Nebraska Beef grind Hamburger?  If so, where and why no recall of it?  Perhaps that will be the recall of the day?

Kroger initiated a recall June 25 for Kroger stores in Michigan and in central and northern Ohio.  The expanded recall includes ground beef sold at Fred Meyer, QFC, Ralphs, Smith's, Baker's, King Soopers, City Markets, Hilander, Owen's, Pay Less and Scott's with overlapping sell-by dates from mid-May through mid-July.

I did speak to Laura Gunderson of the Portland Oregonian in story about the “Beef Recall Hits Oregon and Washington.” In our discussion about Nebraska Beef’s past litigation and its Press Statement of a few days ago she wrote:

In a statement issued with the recall, Nebraska Beef officials wrote, "Since inception in 1995, the company has processed over 10 billion pounds of product without a confirmed customer illness."

But a Seattle lawyer isn't swayed.

Bill Marler, whose firm specializes in food-poisoning cases, sued Kroger and Nebraska Beef this week on behalf of a consumer who he said tested positive for E. coli O157:H7 after eating ground beef sold at a Kroger store in Dublin, Ohio.

Marler also is suing Nebraska Beef over a 2006 E. coli outbreak after a church potluck in Minnesota that killed a 73-year-old woman and sickened 16 other people. In that case, Marler said, he found Nebraska Beef had detected trimmings, such as fat and bone, contaminated with E. coli. The trimmings were tossed, Marler said, but not the actual meat that had been distributed. The meat, Marler said, was later genetically matched to some of the sick churchgoers' stools.

The company, in turn, sued its distributors and the church, Salem Lutheran of Longville, Minn. The company's legal team had the church's pastor give a deposition last week, Marler said.

In the past, Nebraska Beef's representatives have pointed out that the church women's auxiliary may have introduced contamination as they molded meatballs for a monthly fundraiser.

Marler said it would be uncommon for a slaughterhouse to perform an unnecessary recall.
"If they didn't sicken people," he said, referring to Nebraska Beef's statement earlier this week, "why would they voluntarily withdraw the meat?"

Nebraska Beef successfully sued the USDA in January 2003 to block the federal agency from shutting down one of its plants after the agency said it found E. coli-contaminated meat at a company subsidiary. The agency argued that serious food-safety violations warranted closure of the plant, which it said had a documented history of unsanitary conditions and violations.

Nebraska Beef argued that a closure could cost it $2.7 million a day and 1,100 jobs and drive the company out of business.

A federal judge granted Nebraska Beef a restraining order and a few weeks later the company agreed to a settlement with the agency that included additional food-safety monitoring. Soon after, the USDA dinged the company with nearly 60 noncompliance reports.

In May 2007, Nebraska Beef sued the agency -- and nine of its employees -- to argue that the inspectors had unfairly targeted its plant. The case was later dismissed.

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The CDC says now that we have 887 people infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 38 states and the District of Columbia.  Two new states, Alabama and South Carolina, report ill persons.  The number of ill persons identified in each state is as follows: Alabama (2 persons), Arkansas (10), Arizona (44), California (8), Colorado (11), Connecticut (4), Florida (1), Georgia (22), Idaho (4), Illinois (91), Indiana (11), Kansas (17), Kentucky (1), Maine (1), Maryland (29), Massachusetts (21), Michigan (6), Minnesota (2), Missouri (12), New Hampshire (3), Nevada (11), New Jersey (6), New Mexico (90), New York (26), North Carolina (5), Ohio (7), Oklahoma (23), Oregon (10), Pennsylvania (8), Rhode Island (3), South Carolina (1), Tennessee (6), Texas (354), Utah (2), Virginia (22), Vermont (2), Washington (4), Wisconsin (6), and the District of Columbia (1).

The produce industry is calling for "investigations" (hmmm, where have they been in the last several years as they have poisoned thousands?) to see why the CDC and FDA may have picked tomatoes instead of Salsa as the vector for all these illnesses.  The USA Today quotes me as saying:

Bill Marler, one of the nation's leading food-safety attorneys, says the FDA can't be faulted for acting in the absence of a "smoking tomato" laced with the salmonella bacteria.

"Should they have waited until they knew exactly what it was? Well, whose side do they want to come down on: the side of public health and kids or the produce industry?" Marler asks.

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