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Legally Speaking: The food poisoning lawyer

by John G. Browning, The Southeast Texas Record

November 20 2007

If you’re still snacking on Thanksgiving leftovers, this column just may jumpstart your diet plans.

And while for many people the very thought of going to a lawyer can cause stomachs to churn, if your stomach is churning for other reasons, then the lawyer you need to see is Bill Marler.

Who is Bill Marler? He’s simply the preeminent lawyer in the country in a rather specialized practice area - representing victims of food poisoning. Judging by the headlines the past few months, Mr. Marler will be very busy for quite some time to come. Consider, for example, the following incidents making national news:

  • The Topps Meat Co. recalls some 21.7 million pounds of ground beef and frozen hamburger patties distributed to grocery stores and food service institutions across the U.S. due to fears of contamination with E.coli bacteria. Over two dozen people in at least 8 states are believed to have been sickened by Topps’ products, and the second-largest beef recall culminates in the closing of the 67 year-old New Jersey business. The outbreak leads to at least three lawsuits, including one from the family of a Florida girl who went into kidney failure. According to internal e-mail from an agency inspection official, the U.S. Department of Agriculture waited an astonishing 18 days after learning of the E.coli contamination before concluding that a recall was necessary;
  • Agribusiness giant Cargill recalls more than 1 million pounds of ground beef after learning of possible E.coli contamination and after at least 8 people in Minnesota and Wisconsin fell ill with the bacteria;
  • General Mills recalls nearly 5 million frozen pizzas with pepperoni toppings linked to E.coli bacteria, following an investigation of 21 incidents of E.coli-related illnesses in 10 states;
  • ConAgra Foods recalls all of its Banquet pot pies and store-brand varieties after the pot pies are linked to at least 17 cases of salmonella in 32 states. While no deaths are attributed to the poisoning, at least 33 people are hospitalized. However, the voluntary recall doesn’t come until days after ConAgra first issued a “health alert” to stores, leading many observers to criticize the handling of the recall and the weakness of the nation’s food safety system;
  • Castleberry’s Food Co. recalls more than 90 potentially contaminated products including canned chili, hash, and stew over fears of botulism poisoning. The recalls encompass two years’ worth of production (tens of millions of cans) from the company’s Augusta, Ga., plant. At least four cases of botulism are confirmed, including two West Texas siblings hospitalized in critical condition;
  • Veggie Booty snack foods gets caught up in the tainted food war after salmonella-contaminated seasoning on the snacks sicken approximately 60 people, most of them infants and toddlers.

Given the prevalence of such contamination, it comes as no surprise that Bill Marler and everyone else at his Seattle-based boutique law firm, Marler Clark, have been very busy of late. Tainted lettuce, spinach, peanut butter? Marler’s on it. Of the 60 Veggie Booty cases nationwide, he’s handling 35.

But Marler is no Johnny-come-lately to the world of foodborne illness litigation. After starting out in a defense firm, Marler went to a small plaintiff’s firm, where he landed one of the first cases in the 1993 Jack in the Box E.coli outbreak. Marler recovered a $15.6 million settlement on behalf of Brianne Kilner, the most seriously injured of the Jack in the Box victims; after that success, he says, “I went from one client to 300 clients within a few weeks.”

Since 1993, Marler has been involved in virtually every major food poisoning lawsuit in the U.S. He secured a reported $12 million settlement on behalf of five children severely injured after drinking E.coli contaminated Odwalla apple juice in 1996. In 1998, he won a $4.6 million jury verdict on behalf of 11 children who fell ill with E.coli-induced food poisoning from school lunches in Washington state. In 2003, Marler obtained a $6.25 million settlement for a man forced to undergo a liver transplant after contracting hepatitis A due to food poisoning traced to tainted green onions at a Chi-Chi’s restaurant in Pittsburgh.

Between 1993 and 2006, Marler estimates that 9 percent of his law firm’s revenue was derived from E. coli/tainted hamburger meat cases. Marler estimates that insurance giant AIG “has paid me $100 million over the past 10 years.”

Marler attributes his success to a number of factors, not the least of which is the level of preparation he brings to every case.

“Just because you have a high dollar damages case doesn’t mean ConAgra’s going to cut you a check, because of the problem of proving causation,” Marler cautions.

Since starting Marler Clark in 1998, the attorney has made a point of spending a lot of time up front on proving causation. “Having the right expert is crucial,” according to Marler, who keeps an epidemiologist and nurse on staff and who regularly consults with microbiologists and specialists in emerging areas like pediatric nephrology (the study of kidneys and kidney failure in children).

He points out that “you won’t find a more prepared case at the time we file suit.” Marler also attracts topnotch legal talent as well: his firm includes partners Bruce Clark and Denis Stearns, the lead defense attorneys for Jack in the Box who went from opposing Marler in the courtroom to joining his food poisoning crusade.

Crusade is an apt term for the approach Marler has adopted, whose dedication to the issue of food safety goes beyond representing his clients and earning a handsome living. Marler, whose commitment to public service manifested itself early when he was elected to the Pullman, Wash., City Council at the age of 19, has started a nonprofit food safety consulting firm called Outbreak, Inc. The group provides recommendations to food industry companies on how to prevent foodborne illness outbreaks among their customers.

At least once a week, Marler estimates, someone from his firm is speaking at a food safety conference or a health department seminar.

“It’s become a way to give back; I think especially as lawyers, we have an obligation to give back,” he says.

Marler’s firm also maintains or contributes to over 30 blogs and Web-sites covering various foodborne illnesses, from E.coli to Cryptosporidium. With the help of Dr. Richard Siegler, a leading pediatric nephrologist, Marler developed the website for hemolytic uremia syndrome, the leading cause of kidney failure in children (and which is caused by a toxin from E.coli bacteria).

Marler has also taken his campaign for better food safety to the legislature. He’s testified before state and federal legislators, and written such op-ed pieces as the provocatively titled “Put Me Out of Business-Please.”

Marler points out that “U.S. corporations have done a marvelous job of poisoning their own customers - we don’t need help from the Chinese.” While he views litigation as “a blunt instrument for business and social change,” Marler feels the power for truly meaningful reform rests with the government. Pointing out that our bifurcated system of food safety has led to turf wars and split responsibilities (the USDA regulates meat, while the FDA oversees the safety of most other foods including seafood, fruits, and vegetables), Marler recommends merging the two agencies.

He also calls for implementing mandatory recall authority, since voluntary recalls have led to delays that can mean the difference between life and death in illnesses with a 12-36 hour incubation period. Marler’s efforts have also led to changes in food labeling, including a rule requiring E.coli 0157:H7 to be classified as an adulterant in food.

Marler’s critics have fixated on his marketing tactics (the attorney regularly pops up on news coverage of outbreaks, and his wife Julie drives a lime green Volkswagen Bug with vanity plates that spell out “ECOLI”), and the financial success he has enjoyed.

But in my lengthy interview with him, I saw a different Bill Marler, and gained a different insight into what makes him tick.

With hundreds of clients nationwide with claims of tainted spinach or peanut butter, and fresh from meeting with two U.S. Senators about mandatory recall authority, there was only one client Marler wanted to talk about: Brianne Kilner, the little girl whose 1993 case against Jack in the Box put Marler on the national map.

Recounting Brianne’s grim battle with E.coli, a struggle that saw the removal of her intestines, kidney failure, seizures, and a coma, Marler tries not to choke up. “Brianne got married 3 months ago,” he says.

For Bill Marler, it’s about more than money or even reform - it’s about the client.

The Marler Clark Network