How a Tiny Law Firm Made Hay Out of Tainted Spinach
by Heather Won Tesoriero and Peter Lattman, The Wall Street Journal
September 27 2006
Before health officials warned the public about bad spinach, before grocers yanked fresh spinach off their shelves, before consumers cleaned out their refrigerators, the Seattle law firm Marler Clark had filed its first bad-spinach lawsuit.
Then, as word of the bacteria outbreak began to spread this month, lawyers at the firm posted messages on the firm’s E. coli blog, http://www.ecoliblog.com
. They reached out to reporters and waited for the calls and emails to stream in. Now Marler Clark is representing 76 clients. Bill Marler, a 49-year-old partner in the firm, tracks them with Post-it Notes on a U.S. map hanging in his office.
This latest outbreak of E. coli isn’t the biggest food catastrophe in recent years, in terms of the number of cases, but it is significant for its geographic reach. Extending far beyond just one restaurant or company, it has reared its head in 26 states and Canada and prompted a massive recall of fresh spinach. As of last night, it had affected 183 people and resulted in 95 hospitalizations, one death—and five lawsuits filed by Marler Clark
The Food and Drug Administration has traced the outbreak to spinach grown in three counties in California; it is advising people against eating any fresh spinach grown there, which may have been packaged elsewhere, or any spinach whose origin can’t be verified. The agency says frozen and canned spinach can be safely eaten.
A tiny firm with six attorneys, a staff epidemiologist and a nurse, Marler Clark has in the past eight years established itself as the go-to place for victims of food-borne illnesses. The firm’s niche practice requires it to connect quickly with new, often widely dispersed clients as an outbreak unfolds, making effective marketing paramount. The firm has pursued an aggressive brand-building campaign, including speaking engagements, media
interviews and an extensive Internet presence.
A crucial part of the strategy—and one that appears to have worked with the spinach outbreak—is being among the first to the courthouse. People familiar with such cases say filing first is crucial to getting visibility and attracting more clients. The more people a lawyer represents, says Mr. Marler, the more leverage the lawyer has at the negotiating table with the defense.
“Bill is a good guy and a good lawyer. He’s done a fantastic job of promoting himself and his firm and has done a good job for his clients,” says Fred Pritzker, at rival plaintiff shop Pritzker Ruohonen & Associates, in Minneapolis. “Bill is great at putting press releases out, writing editorials and filing lawsuits early on.”
Less-severe E. coli cases, with symptoms such as diarrhea, vomiting and dehydration, are usually worth between $25,000 and $500,000 when they are settled, Mr. Marler says. Those involving hemolytic uremic syndrome, or HUS, a potentially life-threatening disease that affects the kidneys and occurs in about 5% to 15% of E. coli patients, can run from $1 million to his highest HUS settlement of $15.6 million.
Marler Clark typically takes a 25% contingency fee in cases involving children, and 35% in cases involving adults. In cases he gets from other attorneys’ referrals, he shares the fee.
With the spinach outbreak, all five of the firm’s suits name as a defendant Natural Selection Foods LLC; four also name Dole Food Co. The vast majority of Marler Clark’s clients identified a Dole product, and a couple of clients identified Earthbound Farm, the private label for Natural Selection.
In a Sept. 15 statement, Dole encouraged consumers to dispose of certain packaged fresh spinach products as a precaution; it also said it is working with public-health agencies and expressed sympathies to those affected. Dole declined to comment further.
Natural Selection, a processor and packager of Dole spinach, initiated a recall as a precaution and said it would work with the government. It didn’t return a call seeking comment.
Marler Clark’s first spinach cases came to it via the Internet. Gwyn Wellborn, a 27-year-old escrow officer, was hospitalized in late August with a potentially life-threatening complication from the E. coli bacteria. Her husband, David Wellborn, went online looking for more information on the condition. Clicking around the Internet, he came across a Marler Clark Web site. “It was a really good Web site,” he says. He canceled an appointment
he had made with a local lawyer and phoned the firm.
Drew Falkenstein, a firm associate, took the call. Mr. Wellborn mentioned that his wife had eaten Dole spinach. Six days later, Mr. Falkenstein says, a Wisconsin attorney referred a local case involving a family whose two children had E. coli; the mother suspected it was from Dole spinach.
Two mentions of Dole spinach struck Mr. Falkenstein and Patti Waller, the firm’s epidemiologist. They walked into Mr. Marler’s office, and he immediately suspected an outbreak. On Sept. 13 and 14, the families called the firm with results of DNA tests, which confirmed that their E. coli bacteria were from the same strain. On Sept. 14, just before government officials announced the news of the sullied spinach, Marler Clark had filed
its first case on the Wellborns’ behalf.
Mr. Marler made his name in food-poisoning litigation in the early 1990s representing hundreds of plaintiffs against the Jack in the Box hamburger chain. His largest settlement was $15.6 million for a nine-year-old girl who developed acute HUS.
The firm has tried exactly one case—against a school district in eastern Washington state, where 11 children got E. coli from cafeteria food. Marler won a $4.6 million verdict. Marler says that in 13 years, he has settled cases worth more than $250 million.
Mr. Marler says he and his partner, Bruce Clark, age 50, “know more about [food-borne illness cases] than any two lawyers on the planet.” He points to a bound document running some 600 pages; it is a case workup laying out the science of the disease, a child’s injuries and the estimated damages, which he will soon be sending to a manufacturer and retailer of contaminated products in a recent E. coli case. He also included a DVD of a day in the life of the child, meant to give the potential defense a picture of the injuries.
To those who call him an ambulance chaser, Mr. Marler points to industry reforms he says came about after he locked horns with companies. Jack in the Box Inc. raised its minimum burger-cooking temperatures to 155° from 140°; the company says the change was unrelated to the legal action. The Centers for Disease Control and Prevention requires hospitals to report HUS cases. Odwalla, another defendant in a Marler Clark suit, began pasteurizing its juices following a 1996 E. coli outbreak.
Some lawyers question how great Marler Clark’s impact has been. “Food safety was a priority long before Marler began bringing lawsuits,” says David Ernst, a defense attorney at Bullivant Houser Bailey, in Portland, Ore., who has litigated against Mr. Marler in food-poisoning cases for more than 10 years. “These are not lawyer-driven reforms.”
Still, Mr. Ernst and other defense lawyers say they respect Mr. Marler’s expertise. Mr. Ernst says Mr. Marler takes a reasonable approach to valuing cases and tries to avoid protracted litigation. They also call him a master marketer.
Oddly enough, the first headline on Mr. Marler’s blog two years ago was “E. coli food poisoning cases drop.” Now, the firm has 33 blogs and Web sites covering 14 food-borne illnesses. Mr. Marler says his firm’s Web sites started out as sources of information for potential clients; now other firms involved in the spinach matter are following his firm’s approach, he says.
“This might be the first time when other lawyers say, ‘We’ve got to get Marler off the front page of Google.’”
In 1998, the law firm started a nonprofit called OutBreak, which consults directly with companies on ways to keep food safe. While Mr. Marler says the consulting is part of the firm’s mission, critics say it is simply a way to win future plaintiffs. “You generate business by raising your profile,” says
Ted Frank, a tort-reform advocate with the American Enterprise Institute. “If you have a niche in the law, you’re going to want to push your expertise out there.”
Some marketing still gets done the old-fashioned way. Mr. Marler’s wife, Julie, says she was recently approached in a parking lot by a man asking whether her husband was an attorney. How did he guess? Her lime-green Volkswagen Bug bears the license plate ECOLI.