Emmy Award winning Poisoned set for likely updated Publication

It is hard to believe that Poisoned the book came out 14 years ago and that a documentary was inspired by it. The book has quietly become a cult classic in the food safety and legal communities. It was originally published in hardcover and twice in paperback. It is likely an update is on the way post-Emmy.

Author’s Note 2011

Twenty years ago, today—on January 17, 1993—the State of Washington’s department of health announced that an E. coli outbreak was under way in the state and was likely linked to tainted, undercooked hamburgers served at several Jack in the Box restaurants. At the time, most Americans had never heard the term E. coli O157:H7. The Centers for Disease Control and Prevention (CDC) didn’t list it as a reportable disease. Only four state health departments even tracked the pathogen. Other than a few microbiologists and food scientists virtually no one knew the organism existed in food. But all of that changed as the outbreak rapidly spread throughout the West, tracked by the nightly news at all three major television networks, as well as virtually every big newspaper in the country. The idea that a hamburger could be lethal was a frightening wake-up call. Before the dust settled, over 750 children were poisoned and four had died. Secretary of Agriculture Michael Espy was blindsided. So were the U.S. Department of Agriculture (USDA), the Food and Drug Administration (FDA), and the CDC. Poisoned is a behind-the-scenes account of the outbreak that introduced America to E. coli and opened our eyes to the fact that food safety can be a matter of life and death. It is a jarringly candid version told through the principals at the center of the fast-moving disaster—the families whose children were poisoned, the Jack in the Box executives who were at the helm during the outbreak, the physicians and scientists who identified E. coli as the culprit, the lawyers who brought a massive class action suit against Jack in the Box, and the lawyers who defended the fast-food chain. Al of these parties cooperated with me for this book. I conducted more than two hundred on-the-record interviews. I also received more than a hundred written answers to factual queries sent to sources via email. Most of these electronic communications involved detailed follow-up questions to prior interviews. I had access to deposition transcripts, thousands of pages of discovery documents (internal corporate records from Jack in the Box, medical records from numerous hospitals and doctors’ offices, and insurance records), and billing records and internal memos from numerous law firms involved in the Jack in the Box litigation. I was also given access to a trove of private papers, letters, photographs, and videos associated with the outbreak. My primary objective is to tell this epic story in a manner that is true to the compelling characters who shaped this historic case. I am indebted to the victims and the survivors who were willing to endure some emotionally grueling interviews that were often interrupted by tears, both theirs and mine. I’m thankful to the doctors and lawyers who took so much time to educate me on the complex medical and legal issues at play in this case. And without the trust and cooperation of the Jack in the Box officials, this story would have been incomplete. The Jack in the Box outbreak is considered the meat industry’s 9/11. As soon as hamburgers killed kids, everything changed. Congressional hearings were held. The national media put a spotlight on the industry. State and federal health codes were upgraded. E. coli became a reportable disease among all state health departments. Mandatory internal cooking temperatures for beef were raised to 165 degrees throughout the country. Even the warning labels that you see on al the meat and poultry sold in the supermarket today are a direct result of the Jack in the Box outbreak. But the Jack in the Box case has had implications that reach far beyond the meat industry. The case gave rise to the nation’s first and only law firm dedicated solely to representing victims of food poisoning. Based in Seattle, Marler Clark LLP is the creation of Bill Marler, who as a fledgling personal-injury lawyer took on Jack in the Box and in the process became convinced that the problem of food safety extended far beyond one restaurant chain and one pathogen. His firm, which works with physicians, former public-health officials, and scientists around the world, has helped transform the way outbreaks are handled by health officials, insurance companies, and the news media. Marler has also led the charge on food-safety reform in Washington. Without question, few individuals have had more influence on the shape and direction of food-safety policy in the U.S. over the past twenty years. Another far-reaching legacy of the Jack in the Box case is the area of public awareness. In the outbreak’s aftermath, books like Fast Food Nation and The Omnivore’s Dilemma became runaway best sellers. Farmer’s markets sprang up everywhere. The organic movement exploded. Grocery chains like Trader Joe’s and Whole Foods have become billion-dollar companies by marketing natural and wholesome foods. Today even Wal-Mart offers a large selection of organic products. In short, since 1993, food safety has emerged as a serious public- health issue in America. The CDC estimates that foodborne disease causes about 48 million illnesses per year. Roughly one in six Americans get sick from bad food. Many of these cases are mild gastroenteritis, commonly referred to as the stomach bug. But too many food poisoning cases are more serious, resulting in approximately 125,000 hospitalizations and 3,000 deaths annually. The fatalities are often children and the elderly. Besides the obvious human toll, there’s an economic side to this. Foodborne illness in the United States costs about $152 billion a year. That’s the sum of medical expenses, insurance costs, and lost wages. It’s a staggering number. But it’s not surprising given the number of major outbreaks in recent years. In 2010, more than half a billion eggs were recalled after nearly two thousand people became ill with Salmonella poisoning. A year before that, nine people died in a Salmonella outbreak linked to a peanut-manufacturing plant. Hundreds of food products from breakfast cereal to energy bars had to be recalled, costing food manufacturers over a billion dollars. E. coli O157:H7 is often more deadly than Salmonella. Although beef remains the most common vector of E. coli poisoning, the list of other foods responsible for major E. coli outbreaks is bewildering spinach, unpasteurized apple juice, peppers, bagged lettuce, sprouts, raw milk, cilantro, and cheese, to name just a few. E. coli even found its way into raw cookie dough in 2009. There has been some good news. On January 4, 2011, President Barack Obama signed the FDA Food Safety Modernization Act (FSMA), the most sweeping reform of our food-safety laws in more than seventy years. It shifted the focus from responding to contamination to preventing it. The bad news is that Congress and the Obama administration have failed to fund the law. Meantime, in September 2011, the U.S. was hit with its deadliest food poison outbreak in one hundred years when thirty-three people died after eating Listeria-contaminated cantaloupes. There are now more than two hundred known diseases transmitted through food. The Jack in the Box outbreak is a cautionary tale that points out the significance of food safety. It’s also an inspiring tale of courage and resourcefulness. Despite the terrible human loss associated with this case, a remarkable number of things were done right in the aftermath. It’s a story that will forever change the way you look at what you eat. Jeff Benedict January 21, 2013 Buena Vista, Virginia

INTRODUCTION March 5, 2018

The weekend getaway to Royal Palm Resort & Spa in Phoenix was the perfect respite from Seattle’s cold rain. But Monday morning came fast for sixty-one-year-old food-safety lawyer Bill Marler. His wife still sleeping soundly, he quietly eased out of bed, slipped into a bathrobe and reached for his laptop. He had a case to check on. In 2015, nineteen people in seven western states had fallen ill after eating rotisserie-chicken salad made and sold at Costco stores. Lab tests revealed the presence of E. coli O157:H7 in a diced-celery-and-onion blend contained in the chicken salad. Confident the contamination was in the celery, Costco’s Salinas Valley supplier, Taylor Farms, voluntarily recalled the blend, but it was too late for the nineteen victims. Marler represented several of them, including a young woman in Salt Lake City who spent a month in intensive care. Nineteen-year-old Chloe Rodgerson had just accepted a position as a Disney princess at Disney World in Orlando. A dancer and singer who had previously performed at Lincoln Center and in movies, Rodgerson viewed the Disney opportunity as another step toward realizing her childhood dream of performing in a hit Broadway show. But she never made it to Orlando. Forty-eight hours after eating a chicken salad sandwich with her family in Utah, Rodgerson doubled over with severe abdominal pain. Then she vomited up blood and passed a bloody stool. Within a week, her kidneys failed, and she was hospitalized. After the Centers for Disease Control and Prevention (CDC) linked her illness to Costco, Rodgerson’s parents retained a Salt Lake City law firm. The firm, which had no experience with foodborne illness cases, called Marler and asked for his help. By the time he met Rodgerson, she had undergone three surgeries and was on dialysis while waiting for a kidney transplant. Her large intestine had been removed. Her pancreas was so damaged that she’d become a diabetic. And she had sustained a brain injury brought on by the severity of the toxin. Marler couldn’t help internalizing her situation. He had three daughters, young women like Rodgerson. They were in college or pursuing careers; Rodgerson was tethered to a machine. After just one serving of chicken salad contaminated with E. coli O157:H7, she’d gone from an attractive nineteen-year-old with bright prospects to an extreme invalid completely dependent on her parents. Her medical bills exceeded $2.5 million. In a mediation held almost three years after the outbreak, Costco and Taylor Farms offered Rodgerson millions. Her Utah-based lawyer would have settled. But Marler walked away from the table and sued Costco one month later. In his mind, the lawyers and insurance companies on the defense side hadn’t come to grips with the gravity of Rodgerson’s situation: The E. coli O157:H7 poisoning had reduced her life expectancy by more than thirty years. She had lost various key organs. She would never be able to have children. Her dream of performing was dead. Seizures, extreme headaches, and susceptibility to infections would be the norm for the remainder of her life. Medical expenses, even millions of dollars’ worth, were the least of her problems. Once Marler’s lawsuit entered the discovery phase, Costco and Taylor Farms wanted to take another run at mediation. This time Marler helped everyone in the room look at the situation from Chloe’s perspective. “When you don’t have a large intestine, you don’t absorb water,” he explained. “You are a chemistry experiment. Most of us don’t think about how much water we drink or what we eat or how much sleep we get or how much work we can do. For Chloe, living is a full-time job.” Costco more than tripled its settlement offer. And Marler agreed to drop the lawsuit. In the pre-dawn darkness of his Phoenix hotel room, Marler waited for news of developments. A federal judge in Utah was expected to ratify the settlement and dismiss the case any day. As Marler scanned the headlines on his newsfeed, he noticed an email had come in overnight from a lawyer friend in South Africa. The subject line read, “LISTERIA.” For months, Marler had been monitoring a Listeria outbreak that had stymied South African health officials. Over a one-year period, nearly two hundred people had died, and more than a thousand others had fallen ill, making it the largest Listeria outbreak in world history. Early on, Marler had figured the source was most likely a refrigerated, mass-produced food eaten by young and old, white and black, rich and poor. “It has to be South Africa’s equivalent to Spam,” Marler had told his South African colleague months earlier. The email contained a link to a live feed of the health minister of South Africa announcing that inspectors had finally identified the culprit—an inexpensive brand of a highly processed sandwich meat known as polony. It was unsliced bologna sold in a tube. Tiger Brands, South Africa’s largest food company was the manufacturer. Since doctors in South Africa were not required to report cases of Listeria to the Ministry of Health, the outbreak had gone undetected for almost a year. Nearly half of the victims were newborns that had been infected during gestation. The backlash from the public was immediate. How could this happen? Why wasn’t the government watching this? How can we have an outbreak this size? The country had never experienced a large-scale foodborne illness outbreak, and health officials were scrambling to respond. Marler called his travel agent at home in Seattle and woke him up. “I need you to get me to South Africa by Wednesday,” he said. For Marler, going to South Africa was like going back in time. Twenty-five years earlier he’d been a young associate at a law firm in Seattle when the United States experienced its first large-scale foodborne illness outbreak. President Bill Clinton was conducting his first cabinet meeting when he received word that children in multiple western cities were sick with E. coli O157:H7 poisoning. The outbreak was ultimately traced to undercooked meat from the fast-food chain Jack in the Box. Like most Americans at that time, Marler was unfamiliar with E. coli O157:H7. But he ended up bringing a class action suit against Jack in the Box. The case changed his life and, in turn, transformed public policy toward food safety in America, leading to passage of the Food Safety Modernization Act in 2010. In front of health officials and lawmakers in Johannesburg, Marler recounted his experience with Jack in the Box. Under South African law, he pointed out, manufacturers of food can be held liable under principles like those common in U.S. tort law. “There is a way through this crisis,” he said. “But food companies and government regulators must pay attention to the things that matter.” His remarks were covered by all the papers in Johannesburg. The media also quoted a South African lawyer named Richard Spoor, who. was calling for a class-action suit against Tiger Brands. Marler quickly did some background research on Spoor and dis- covered he was a highly respected human-rights lawyer who had taken on the gold industry on behalf of workers who had developed lung disease. Through Twitter, Marler sent Spoor a message: “We should get together.” They met the next day and agreed to join forces. By the time Marler left South Africa, Spoor announced his intention to file a $2 billion class-action suit against Tiger Brands. On the day that Marler returned from South Africa, health officials in the U.S. documented a report of an E. coli O157:H7 illness traced to romaine lettuce. Before long, 210 people from thirty-six states would be infected. Five people died. Contaminated water, Marler figured. Either that or wind dust from cattle operations. In the early part of his career, most of Marler’s E. coli O157:H7 cases had stemmed from contaminated meat, mainly ground beef. Subsequent food safety legislation reduced the incidence of E. coli O157:H7 in hamburgers. But the regulations didn’t eliminate the bacteria in cattle, and E. coli O157:H7 has become an environmental pathogen, carried by runoff from feedlots. As a result, leafy greens are now a more common culprit in E. coli O157:H7 outbreaks than hamburgers. In one of his leafy-green cases, Marler obtained aerial photographs of the farm that had grown the contaminated greens. The photographs showed a dairy farm across the street from the lettuce farm. “Putting a leafy-green operation close to a dairy farm is a recipe for disaster,” Marler explained. “The cow shit has to go somewhere, and these animals carry pathogenic bacteria. It ends up in rural water supplies, which then ends up irrigating leafy greens.” By late spring 2018, the leafy-green outbreak in the U.S. ranked as one of the largest in history. The Food and Drug Administration and the CDC traced it to water samples taken from a canal in the Yuma Valley. Marler represents 105 of the victims. He can’t help wondering what prevents us from seeing disasters in advance. But he doesn’t have to wonder about how he became the world’s go-to lawyer when it comes to food safety. It all started with Jack in the Box.

UPDATE October 11, 2022

Just over 20 years after Bill penned an Op-ed for the Denver Post in which he challenged the USDA/FSIS and the Beef Industry to “Put me out of Business,” E. coli cases linked to ground beef have nearly, but not completely, disappeared. As Bill tells it, “I could count on a significant E. coli outbreak and recall occurring like clockwork nearly every Spring or Summer. When 2003 came, there were no outbreaks, and other than the tragic uptick in 2007 that impacted Stephanie Smith, E. coli cases linked to ground beef are no longer a part of the work we do anymore.  The industry to its credit did its job and met my challenge.” Since the 2018 E. coli outbreak linked to Romaine lettuce from Yuma, E. coli, Salmonella, Listeria, and hepatitis A outbreaks linked fresh fruits and vegetables now take up the bulk of Bill’s attention.  Romaine lettuce E. coli outbreaks have now replaced ground beef as the staple of the Marler Clark practice. The COVID-19 Pandemic may have slowed Bill’s world-wide travel schedule, but it barely impacted reported foodborne outbreaks and the litigation that surrounds them.  Salmonella-tainted onions in 2020 and 2021 sickened thousands in the United States and Canada.  Salmonella-laced ground turkey sickened dozens, organic yogurt nearly caused the death of three children with E. coli-mediated HUS in 2021.  Hepatitis A outbreaks linked to ill workers in multiple restaurants (Bill has for decades urged the restaurant industry to offer hepatitis A vaccines to employees) in New Jersey and Virginia sickened nearly 100, causing five deaths and three liver transplants.  In 2022, a Salmonella outbreak hit peanut butter, again, and Listeria in ice cream raising its deadly head. 2022 has also put social media and “influencers” from Instagram and TikTok and the same footing as CDC epidemiologists.  Public health officials seemed completely oblivious to hundreds of people suffering with acute liver failure after consuming an organic, vegan home-delivered food produced by a company backed by the power of Serena Williams and Gwyneth Paltrow.  Bill now represents 361 of the customers in a Federal Court lawsuit that stretches from New York City to the mountains of Peru. The pandemic years has turned Bill into nearly a “virtual” lawyer.  Instead of crisscrossing the world to appear in Court our to give a speech on “why it is a bad idea to poison your customers,” Bill will login to his custom-built studio from his Bainbridge Island satellite office.  The pandemic has also ushered in changes at Marler Clark, with three of the four founding partners retiring.  Bruce Clark, Denis Stearns and Andy Weisbecker have opted for a bit slower pace. Bill when asked when he might retire as well, quickly responds, “I still have much too do. I still love helping people and trying to do my part to make sure there are fewer Bri’s in the future than in the past or the present.”  In 2019 Bill launched a petition to ban Salmonella from chicken like E. colis were banned from ground beef.  Thus far the USDA/FSIS has resisted, but it has banned Salmonella from certain chicken products.  As Bill says, “a win is a win, even if a small one.” 

Republished with permission from Bill Marler and Marler Clark. Copyright (c) Marler Clark LLP, PS. All rights reserved.