Legal News

In Salmonella Outbreak, Plaintiffs? Lawyer Says: ?No One to Sue?

By Dan Slater

Credit: Bill Marler.

With the number of salmonella-sickened people topping 1,000 last week, we thought we’d check in with LB veteran Bill Marler, the food-borne illness lawyer from Seattle’s Marler Clark. Marler handled a spate of 2006 cases relating to E.coli outbreaks. (Click here for a 2006 WSJ profile of Marler Clark.) Not surprisingly, even though his license plate still reads “E.coli,” he’s now hot on the trail of the latest salmonella outbreak.

Marler, who says the salmonella investigation has proved challenging, chatted with us earlier today.

Hi Bill. We see you’re calling from your cell phone. Where are you?

I’m in upstate Minnesota, defending the depositions of two people who have lawsuits pending against Nebraska Beef from a 2006 outbreak of E.coli from beef served at a church potluck. It sickened 20 people and killed one.

Well, before we get to salmonella, tell us why you traded in your green Bug (pictured, right) for a tomato-red version (above). Subliminal advertising for the salmonella cases?

No, it’s not. The green Bug had run out of steam, so it was time to get a new one. But I’m still vying for the best plaintiffs’ lawyer license plate.

The jury’s still out. But on to salmonella. Last week, the number of people sickened by the salmonella outbreak – which was at first blamed entirely on tomatoes but now the FDA says jalapenos may also be a culprit — reached 1,000. Does Marler Clark have any of these cases?

First of all, that number probably isn’t correct. The Center for Disease Control will tell you that for every one person that they count as a case – meaning that the person’s stool-culture came back positive for salmonella St. Paul – there are 30 to 40 people out there who are sick that they don’t count. So it’s likely not 1,000 but 30,000 or 40,000.

We have just under 50 clients who are culture positive. In most major outbreaks involving food in the U.S. over the last 15 yrs, we wind up representing most, if not all, of the people that get sick, either through clients contacting us directly, or by lawyer referrals.

How do you lock down so much of the market?

I know what’s going on because at about the same time people are being interviewed by health departments, they’re calling me, not necessarily knowing what food item sickened them. So then we’re investigating and seeing what restaurants they ate at. We run our law office like a health department. I have an epidemiologist and nurses on staff. Our questionnaires are more thorough than some health departments.

But this particular salmonella investigation seems to be problematic. Why has it been so difficult to nail down the culprit?

Everyone’s asking: How is it possible that they picked tomatoes and now it appears to be wrong? Well, the common denominator appears to be salsa. Tomato is a common ingredient. So when the FDA and the CDC made the announcement that it was tomatoes, that made sense, and we started interviewing our people to see where they would’ve eaten tomatoes. But it’s confusing because we have clients who ate tomatoes three times in one day, and from three different places.

Also, after the FDA did the recall, we would’ve expected the illnesses to stop. But they continued, and that’s what threw the wrench in the whole investigation. So now they’re expanding the investigation into other salsa items, such as jalapeños. Until this clarifies a bit, there really is, in my view, no one to sue.

A plaintiffs’ attorney’s nightmare. So what’s next?

It’s all about causation. You look for choke points: points in the chain of distribution where the last company had control over that product before it got further distributed. At some point people go, well [in salsa, one company] used a lot of canned tomatoes. (Fresh tomatoes were allegedly linked to the outbreak.) So maybe then it was jalapeños. So then you ask, for restaurants and grocery stores, where’s the choke point for those jalapeños?

Most of the time, you can track products back to a particular supplier, but for produce it’s very difficult to track it back beyond a middle-man supplier because they’re potentially getting product from 25 to 50 farmers. Tomatoes are notoriously difficult to track, and, after 15 years of doing this, I’m aware of no salmonella-related outbreaks that have been tied to jalapeños. I’m becoming concerned that the best we’re ever going to be able to do is tie it to salsa. Sometimes you can’t figure it out. That’s the frustrating part of what I do.

Sounds bleak. Well, best of luck and thanks for taking the time.

Sure.

Full post as published by Law Blog - WSJ.com on July 15, 2008 (boomark / email).