2011 gma food claims and litigation conference with bill marler
TRANSCRIPT
2009: Peanut Butter - Update
700 persons
from 46 states and one person from Canada had been reported infected
with the outbreak strain.
Peanut Butter Woes Spreading
CDC, Company Representatives
Warn the Salmonella
Investigation Could Take TimeBy LAUREN COX, ABC News Medical Unit
Jan. 21, 2009
The effects of Salmonella
contamination of peanut butter may
not be quite as pervasive as those
of a contaminated water supply, but
it's close.
Peanut butter reaches so far into the
American diet that a single
processing plant in Georgia has
spread contaminated peanut butter
into
cafeterias, cakes, cookies, crackers,
candies, cereal and ice cream in at
least 43 states.
Over 700 persons infected with the outbreak strains of Salmonella Typhimurium have been reported from 46 states
Over 150 people hospitalized
Nine Deaths
Over 4,000 products recalled
Bankruptcy
Criminal Prosecution?
Declaratory Judgment
Peanut Butter and Salmonella - Again
1) Be a person that is a “confirmed case” per the CDC’s definition, inclusive of a culture confirmed infection of Salmonella Typhimuriumwith PFGE results matching one or more of the outbreak strains of Salmonella Typhimurium whose infection occurred within the CDC’s epidemiological curve and verifies consumption of recalled product(s);
2) Be a person not meeting the criteria in subsection a, but who has a culture confirmed infection of Salmonella Typhimurium that occurred within the CDC’s epidemiological curve with verified consumption of recalled product(s) whose onset of symptoms occurred within 12 and 72 hours of consuming the recalled product(s);
3) Be a person who does not meet either of the above criteria, but who verifies consumption of a recalled product(s) and reports developing symptoms consistent with salmonellosis within 12 and 72 hours of consuming the recalled product(s) and whose claim is supported by the sworn statement of a professional epidemiologist possessing an MD, DVM, or PhD degree stating that the salmonellosis was caused by consuming a peanut product manufactured by PCA, Plainview, or Tidewater.
Status Of The PB2 – What Is A Case?
So, Where Do Things Stand Right Now?
Hartford, PCA’s insurer tendered it $12M policy for 2008-2009, plus $750,000 in litigation expensesfor a full release.
Out of over 700 potential claimants, only 123 filed claims with the bankruptcy court.
An agreement was reached on a mediation/arbitration process between trustee and King Nut and Kellogg –two primary re-manufacturers.
$12M has been applied to claims – shortfall to be paid by whom?
Black Peppered Salami
Salmonella, the
latest confirmed
case count was
272 persons in 44
states and D.C.
Traceback to
Asian Spices
Wright County Egg and the “Egg Rule”
From May 1 to November 30, 2010, approximately 1,939 illnesses. As human Salmonella Enteritidisinfections have now returned to baseline levels, it is likely that this outbreak has ended.
Subway Shigella
A Shigella outbreak at a Subway restaurant in Lombard, Illinois has caused approximately 125 confirmed cases of Shigella Sonnei.
A franchise and an ill employee or employees.
Jimmy John’s Sprouts
125 infected with the outbreak strain of Salmonella serotype I 4,[5],12:i:-(Salmonella ―Marler‖ have been reported from 22 states and the District of Columbia. Tiny Greens Alfalfa Sprouts or Spicy Sprouts at Jimmy John’s restaurant outlets.
Bravo Farms Gouda Cheese
Thirty-eight persons infected with E. coli O157:H7. The number of ill persons identified in each state with this strain is as follows: AZ (19), CA (3), CO (11), NM (3) and NV (2). There have been 15 reported hospitalizations, 1 case of hemolytic uremic syndrome (HUS).
Taco Bell Salmonella
The SalmonellaHartford outbreak caused 75 illnesses in 15 states since April 1, 2010
The SalmonellaBialdon outbreak caused 80 illnesses since May 1, 2010.
Marie Callender Microwave
Forty-four persons infected with the Salmonella outbreak strain were reported from 18 states.
July 25, 1996: FSIS issues Pathogen Reduction/HACCP Final Rule mandating process controls in all meat plants
January 19, 1999: FSIS expands E. coli testing to include “non-intact meat and trimmings,” deeming (by implication) that E. coli O157:H7 on all “intact” meat is not an “adulterant”
October 7, 2002: FSIS explains : “intact cuts of beef that are to be further processed into non-intact product prior to distribution for consumption must be treated in the same manner as non-intact cuts of beef because pathogens may be introduced below the surface. Manufacturing trimmings are an example…”
E. coli O157:H7 and Intact vs. Non-Intact Meat
“The public health risk presented by beef products contaminated with E. coli O157:H7 is not limited, however, to raw ground beef products. Given the low infectious dose of E. coli O157:H7 associated with foodborne disease outbreaks and the very severe consequences of an E. coli O157:H7 infection, the Agency believes that the status under the FMIA of beef products contaminated with E. coli O157:H7 must depend on whether there is adequate assurance that subsequent handling of the product will result in food that is not contaminated when consumed.”
FSIS Policy Statement, 64 Fed. Reg. No. 11, 2803 (Jan. 19, 1999)
Supreme Beef sued to stop FSIS from withdrawing inspectors, “alleging that in creating Salmonella tests, FSIS had overstepped the authority given to it by the FMIA.” (113 F. Supp. 2d 1048, at 1051)
Court ruled in favor of Supreme Beef, finding that, under FMIA, a plant cannot be found “insanitary” based on failed Salmonella performance standards
“what the court takes issue with today is not the use of scientific methods in USDA inspections but the agency’s science-based testing of a processor’s product to evaluate the conditions of its plant.”(emphasis in original)
“science-based tests of a plant’s end product may be appropriate when the USDA is determining if a plant’s meat is adulterated under the several other [FMIA] definitions”
Salmonella as an Adulterant in Meat
“The difficulty in this case arises, in part, because Salmonella, present in a substantial proportion of meat and poultry products, is not an adulterant
per se, meaning its presence does not require the USDA to refuse to stamp such meat "inspected and passed.―
This is because normal cooking practices for meat and poultry
destroy the Salmonella organism, and therefore the presence of Salmonella in meat products does not render them "injurious to health" for purposes of § 601(m)(1). Salmonella-infected beef is thus routinely labeled "inspected and passed" by USDA inspectors and is
legal to sell to the consumer.”Supreme Beef v. USDA, 275 F.3d 432, 438-39 (5th Cir. 2001).
More Meat Subject to Recall
Toward a True Zero-Tolerance Policy for E. coli O157:H7
January 19, 1999: FSIS expands E. coli O157:H7 testing to include “non-intact meat and trimmings” (excluding intact meat)
October 7, 2002: FSIS explains : “intact cuts of beef that are to be further processed into non-intact product prior to distribution for consumption must be treated in the same manner as non-intact cuts of beef because pathogens may be introduced below the surface. Manufacturing trimmings are an example…”
August 14, 2008: FSIS issued recall of primal cuts, subprimal cuts and boxed beef manufactured and sold by Nebraska Beef, Ltd.
June 24, 2009: JBS Swift Beef Company, a Greeley, Colo., establishment is recalling approximately 41,280 pounds of beef products that may be contaminated with E. coliO157:H7
July 31, 2009: FSIS issued Notice 51-09 announcing intent to start routine testing of bench trim—e.g., trim generated from boxed beef
December 24, 2010: National Steak and Poultry Recall. 248,000 of “mechanically-tenderized” steaks.
More Pathogens Subject to Recall
NON-O157 SHIGA TOXIN-PRODUCING E. COLI
October 17, 2007: FSIS, FDA & CDC host public meeting on “Public Health Significance of non-O157 STEC at George Mason University
Pending: Victims of non-O157 STEC infections join with Marler Clark to file Petition seeking FSIS declaration that non-O157 STEC will be deemed an adulterant under FMIA
ANTIBIOTIC-RESISTANT STRAINS OF SALMONELLA
July 22, 2009: FSIS announced “King Soopers, Inc.,
a Denver, Colo., establishment, is recalling approx. 466,236 pounds of ground beef products that may be linked to an outbreak of salmonellosis,”
August 6, 2009: FSIS announced “Beef Packers, Inc., a Fresno, Calif., establishment, is recalling approx. 825,769 pounds of ground beef products that may be linked to an outbreak of salmonellosis .”
5070 Tests Have Shown 301 Presumptive Positive And 96 Confirmed For Non-o157 STEC And 30 For The Six Non-o157 E. Coli Of Concern By The CDC. - O26 (N=10), O45 (N=0), 0103 (N=11), O111 (N=1), O121 (N=6), And O145 (N=2).
Incidence of Non 0157 EHEC in Retail Ground Beef Survey (n=5,070)6.22
2.00
0.62
0
1
2
3
4
5
6
7
Total IR (n=301) Total Confirmed (n=96)026, 045, 0111, 0121, 0145, 0103 (n=30)
In
cid
en
ce %
Incidence of Salmonella inRetail Ground Beef Survey (n=5,070)
2.85
1.70
0
0.5
1
1.5
2
2.5
3
Total IR (n=138) Total Confirmed (n=86)
In
cid
en
ce %
5070 Samples Salmonella. 138 Were Presumptive Positive And 86 Were Confirmed
Emerging Pathogens
E. coli O111 linked to over 300 illnesses and one death in Oklahoma
Appears linked to buffet-style restaurant and at least one catered event
Emerging Pathogens
E. coli O145 in lettuce from Arizona. CDC – thirty-three confirmed and probable cases from four States.
E. coli O26 in ground beef sickening three.
MRSA and C. diff –Next?
Food Safety Modernization Act
Allow the FDA to order
a recall of tainted foods;
Require larger food
processors and
manufacturers to register
with the Food and Drug Administration
and create detailed food safety plans;
Require the FDA to create new produce
safety regulations for producers of the
highest-risk fruits and vegetables;
Food Safety Modernization Act
Require CDC and State Health Departments to coordinate FoodborneIllness surveillance;
Establish stricter standards for the safety of imported food;
Increase inspections of domestic and foreign food facilities, directing the most resources to those operations with the highest risk profiles.
Questions?
William D. Marler
Marler Clark LLP, PS
6600 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
(206) 346-1888
Alan M. Maxwell
Weinberg, Wheeler, Hudgins, Gunn & Dial
950 East Paces Ferry Road
Suite 3000
Atlanta, GA 30326
(404) 832-9515