The nation’s foremost law firm with a practice dedicated to representing victims of food poisoning.

Call us at 1 866-770-2032

The Bug That Ate The Burger

by Emily Green, Los Angeles Times Staff Writer

June 6 2001

E. coli’s Twisted Tale of Science in the Courtroom and Politics in the Lab

As George Bush left the White House in January 1993, a mass food poisoning was unfolding in the states of Washington, California, Nevada and Utah. More than 700 people were sickened, dozens required dialysis and four died. The cause was E. coli O157:H7, a pathogen so little known outside specialist circles that few of the doctors treating victims had heard of it. The source: “Monster Burgers” sold from overwhelmed grills in a Jack in the Box promotion.

As Bush’s son returns to the White House, E. coli O157:H7 contamination is now so pervasive that health authorities are warning against drinking well water, swallowing pool water, swimming in freshwater lakes, drinking fresh apple juice, eating fresh sprouts and taking children to petting zoos, farm visits and even camp-outs.

Not only is America’s former national dish—a juicy rare hamburger—now off-limits, the National Advisory Committee on Microbiological Criteria for Foods is asking whether we dare serve steaks rare.

As the notion that beef should be a succulent luxury rather than a fast-food filler slips into obscurity, the political struggle over how to respond to E. coli O157:H7 resembles nothing so much as mud wrestling. “You can’t tell the good guys from the bad guys without a score card, and they shift all the time,” says David Murray of the Washington, D.C., accuracy watchdog agency, the Statistical Assessment Service.

What was in fact a scientific challenge became a political football. Roughly summed up, for Democrats, the emergence of E. coli O157:H7 represents Republican collusion with the meat industry. To Republicans, it is one of many bacteria—part and parcel of the natural world.

Whichever party is right, now hanging in the balance is not just the right to eat rare meat, but the environment itself, and America’s keenest pleasures of summer.

Bad News by Any Name

“To me, the ‘E’ in E. coli stands for ‘evil’,” says Nancy Donley. In 1993 in Chicago, her 6-year-old son, Alex, was so ravaged by O157:H7 poisoning from contaminated hamburger meat that when he died, only his corneas were fit for organ donation.

To biologists, the E. stands for Escherichia. E. coli is a species of intestinal bacilli named after German physician Theodor Escherich. The “coli” signals that it’s “of the colon.” It’s not clear what most E. coli bacteria do, just that warm-blooded animals have them. They might serve in vitamin synthesis.

It is E. coli’s ability to gene-swap that might have given rise to a rogue subclass including O157:H7. Members of this group are able to emit a toxin typical not of E. coli but of shigella, the agent that causes dysentery.

In their quick evolution, E. coli bacteria appear to be getting tougher. At Cornell University, U.S. Department of Agriculture microbiologist James Russell has shown that many E. coli , including O157:H7, are gaining the ability to survive the acid of the gastric juices in our stomachs. This resilience appears to be caused by the way we have fattened cattle since World War II.

“Grain feeding has created a variety of problems for the animal and for the environment,” says Russell, who finds that a shift back to a traditional hay diet causes the amount of acid-resistant E. coli in cattle manure to drop dramatically.

Once E. coli O157:H7 is out in the environment, children and the elderly are the most vulnerable. Donley thinks that she may have had, but shaken off, the same bug that killed her son. The first symptom is bloody diarrhea. The second, potentially fatal complication is when the toxin begins to attack the kidneys and induces a condition called hemolytic uremic syndrome. Victims, usually children or the elderly, require dialysis and can suffer strokes, brain damage and death.

The first recorded outbreak of O157:H7 poisoning among 26 customers of an Oregon branch of McDonald’s in 1982 was caught precisely because of the violent symptoms. “The doctor who recognized it saw that these people all had this common syndrome of frank blood in their stools,” says Mike Doyle, director of the Center for Food Safety at the University of Georgia.

Doyle studied the outbreak. “No one died,” he says. “There were no cases of hemolytic uremic syndrome. It was almost viewed as a freak event.” However, within months, a second McDonald’s outbreak in the Midwest had the Centers for Disease Control and Prevention, or CDC, in Atlanta convinced it was meat-borne.

By 1984, it was cropping up around the country and had thrown three children into kidney failure in a North Carolina daycare center and killed four in a Nebraska nursing home. By 1987, it had killed two in Walla Walla, Wash., and physicians there were required by law to report suspected poisoning cases. By the time of the Jack in the Box outbreak in January 1993, there had been 22 documented outbreaks across the country and in Canada. At least 35 people had died.

The evidence was also in as to where it was coming from: cattle manure. At slaughterhouses, the problems were gritty hides, then dealing with intestinal splatter during evisceration. Infected humans could then infect each other with hands that may have been washed after they changed a diaper, but still carried bacteria. Windfall apples carrying uncomposted manure could contaminate raw cider. And so on.

Patricia Griffin, a CDC epidemiologist, stalked the bug from the early days. Requests for grants to set up systems to watch out for the disease were repeatedly denied, she says: “There were very few resources for food safety.”

By 1988, the USDA had assembled some experts from government, universities and industry and named them the National Advisory Committee for Microbiological Criteria for Foods. In 1992, it announced a “war on pathogens.” But relations between the USDA and public health officials at the CDC were poor.

Griffin describes the differences as cultural. “Microbiologically safe food was never something that I’d seen the USDA make a priority,” she says.

This was about to change. In 1992, Griffin got a phone call from an Alabama housewife named Mary Heersink. Heersink wanted to know if her son’s near-fatal bout with hemolytic uremic syndrome had been associated with E. coli O157:H7. He had eaten some raw ground beef at a Boy Scout camp out, she said. Griffin guessed that it had been and encouraged Heersink to help raise public awareness about O157:H7.

So Good It’s Scary

Heersink says that her son survived because his father is a doctor and had access to blood specialists as the deadly phase of hemolytic uremic syndrome set in. Only six months after her discussion with Griffin, as the Jack in the Box disaster unfolded in the Pacific Northwest, she realized that she might have information that could help physicians there. She contacted families of the sickest victims and sent research papers by air courier to besieged hospitals.

“Sadly, most of their children died,” she says.

The slogan for Jack in the Box’s Monster Burger promotion was “So good it’s scary.” At the time it ran in January 1993, Americans ate on the order of 200 fast-food hamburgers every second. But as the public absorbed the meaning of the new E-word, it was appalled. The Jack in the Box outbreak, says the University of Georgia’s Doyle, was “the powder keg blowing up.”

By April 1993, the toll from the outbreak was in from the CDC: 708 sickened, 171 hospitalized, 30 with hemolytic uremic syndrome, four dead. President Clinton proposed hiring 160 meat inspectors. Agriculture Secretary Mike Espy declared zero tolerance for fecal contamination of carcasses.

Everyone got lawyers. Bill Marler is a Seattle lawyer who was five years out of law school when Jack in the Box exploded. His firm now specializes in E. coli O157:H7 poisoning, and he reckons he got $45 million for his clients from that one outbreak. The most seriously injured survivor, a 9-year-old who suffered permanent brain damage, received in excess of $15 million.

In turn, Jack in the Box sued its suppliers. The suppliers sued their suppliers. One of the few companies not to sue anyone was a cow boning plant, one of the chain’s smallest suppliers.

Though his company was later exonerated, even eight years after the event, its owner asks not to be named. “The media was horrendous,” he says. His plant was circled by TV news helicopters. He would pick up his phone and find himself on live radio.

“You sounded like you were crying,” a friend phoned up to comment who heard the broadcast three states away.

“I was crying,” he replied.

“I didn’t even know what E. coli was,” he says today. When he found out that it was fecal contamination, he imagined that it was filth visible to the naked eye. He set up floodlights at the receiving door and men were posted to watch for any marks that could be contaminants. The trimming became so anxious, he says, they were practically skinning the carcasses.

” E. coli situations have become common since. But at the time it was just shocking. We didn’t have public relation companies. It was just us on the telephone telling what we knew—the truth.”

Not long after the outbreak, Heersink and her son flew to Seattle for a town meeting of the victims. “We came on and said, ‘Let’s start asking the bigger questions: What is wrong with our meat inspection system?”’ says Heersink.

The Politics of Safety

To the mind of Rosemary Mucklow, director of the National Meat Assn. in Oakland and a 40-year-veteran of the industry, in the wake of Jack in the Box, her industry was innocent but made too good a political target to pass up.

“[Agriculture secretary] Espy did not trust the meat industry,” she says. “He didn’t turn to the meat industry and say, ‘Let’s sit down and work this out.’ Rather, he figured out how to throw bricks at us and sought the sympathy and understanding of the consumer organizations who really don’t understand how meat is processed.”

Back in Washington, Espy called for spot checks of beef plants. Of 90 works checked in a year, 30 were cited or even brought to a standstill. By August, he demanded safe handling labels on raw meat. A collection of grocers and meat processors went to cattle country to file suit in U.S. District Court in Austin, Texas. They won. The consultation time was deemed inadequate. But a follow-up suit trying to avoid the labels failed before the same judge.

The grappling had only just begun. When Jack in the Box erupted in January 1993, the head of the USDA’s Food Safety Inspection Service, or FSIS, had been a food scientist and Bush appointee named Russell Cross.

Called before a Senate subcommittee holding hearings into the Jack in the Box disaster, Cross said, “I cannot adequately express how distressed we in FSIS are that these tragic deaths and illnesses have occurred, but the fact is: bacteria, including pathogens, can be found on raw meat.”

Had the burgers been properly cooked, he contended, tragedy could have been averted.

Marler, the Seattle trial lawyer who made millions suing Jack in the Box, now says cooks should not be held responsible. “You cannot rely on a 16-year-old fry cook at a McDonald’s or a Jack in the Box to ensure that the product is cooked enough,” he says. “You can’t rely on a busy mom or dad who has to work two jobs to make sure their kids eat. You can’t rely on that.

“I’m a litigator. I’m not a meat inspector or someone who should run a plant,” he says. “It just makes sense to me there has got to be an economical, scientific way to make sure cow feces do not get on carcasses.”

CDC epidemiologist Patricia Griffin agrees. “What changed after Jack in the Box is people started making the connection: This is not bacteria. This is animal fecal matter in our food. It was a paradigm shift. They started saying, ‘Why is this in our meat?”’

Kansas State University microbiologist and former meat industry representative Jim Marsden sighs at the emphasis on “fecal contamination.”

“It’s not so simple,” he says. The presence of E. coli O157:H7 doesn’t mean there is excrement in food, he says. It means minute bacteria are easily transferred from one surface to another. A droplet the size of a tear can contain millions of bacteria—more than enough to kill.

But to the Seattle families and Mary Heersink, no explanation was acceptable. They formed the lobby group Safe Tables Our Priority, or STOP. A sporadic case of E. coli in the Midwest was about to provide STOP with an unblinking leader. In July 1993, Alex Donley was dying from hemolytic uremic syndrome in Children’s Memorial Hospital in Chicago. He was 6. His mother, Nancy, is now the face and voice of STOP.

“When you learn that your child has died from something that has been identified and known about for 10 years—after you finish reeling from the anger and shock—you channel it into policy advocacy and basically saying we will not allow our children to become an unfortunate statistic,” she says.

In 1994, Donley and a number of families in STOP went to Washington, D.C. They were met by Cross’s newly appointed successor at the USDA, a Clinton administration choice, Michael Taylor.

“I was considered a bit of novelty,” recalls Taylor. “Not only was I from the Food and Drug Administration, but I was a lawyer.” The traditional training was in animal science or veterinary medicine.

Taylor, like Griffin, believed the agency was ruled by a “feeling like the customer was the meat packer, as opposed to the consumer being the customer.” When he arrived, he says, “There were 1,200 veterinarians in the Food Safety and Inspection Service, but not a single human health professional in this agency, whose job was protection of human health.”

Donley describes the meeting with Taylor this way: “It was probably overkill, all these families coming in. The families would lash out. He took it and he promised that he would do something. And he did.”

Outlaw Status

Taylor’s first move was legal. Invited to speak at an American Meat Institute conference in San Francisco, he announced, “To clarify an important legal point, we consider raw ground beef that is contaminated with E. coli O157:H7 to be adulterated within the meaning of the Federal Meat Inspection Act.” What the day before had been a naturally occurring bacterium now had outlaw status, the same as glass or rodent filth. It was a signal, says Taylor, that “things were going to be different and there was going to be accountability.”

Industry could not accept the logic. “You can’t legislate away a problem,” says American Meat Institute director Jim Hodges. “It’s like saying, ‘We’re going to pass a law that it’s illegal to have a car accident.’ It doesn’t solve anything.”

The AMI took Taylor back to the same Texas court where it had lost the labeling case. It lost again. Americans were in the habit of eating rare burgers, observed the judge. Ergo, a traditional food had become unsafe. The adulterant rule was fair.

Hitched to the new definition was a testing program. The USDA would take 5,000 1-ounce samples a year from the annual American pool of approximately 7.6 billion pounds of hamburger meat. Since then the USDA has taken as many 8,080 samples a year, but nobody, least of all Taylor, expected statistical relevance from such a tiny sample. The idea was to push industry into testing itself.

Industry either started testing or was already doing it.

Businesses that lagged behind were strong-armed by yet more Taylor legislation: mandatory implementation of HACCP (pronounced “hassip,” Hazard Analysis Critical Control Point), a risk management system developed for NASA. In came carcass washes, citric acid treatments, steam pasteurization, air exchange systems and all manner of sterilizing treatments. All U.S. meat processors now either contract routine services of a lab or have an in-house microbiologist.

But for all the millions of dollars of government and industry money spent on reforms, the number of recalls has steadily escalated since testing began, from zero in 1994 to 55 last year. More than 34 million pounds of meat have been recalled.

One recall that began in mid-1997, involving Hudson Foods, a former Burger King supplier in Nebraska, ballooned to 25 million pounds. The company was ruined when Burger King dropped it.

“I don’t think there’s anyone who thought Hudson Foods was responsible for that contamination,” says Kansas State University’s Marsden.

Under the Taylor rule, he explains, E. coli O157:H7 only becomes an adulterant in hamburger meat. Though it gets on the meat far earlier in the process, at the slaughterhouse, it becomes the legal responsibility of the person who grinds it.

Grinders insist they have been victimized by the definition, but Taylor says that the ground beef rule was just an interim step, that grinders could put pressure back on their suppliers to do their own testing, adding that in such a concentrated market, often slaughterhouses and grinders are one and the same.

Rob Elder, a USDA scientist with the Agricultural Research Service at College Station, Texas, sees no end in sight to recalls, whatever the corporate set-up between slaughterhouse and grinder. He suspects that E. coli O157:H7 has become endemic in cattle. “When I routinely sample cattle, if I don’t find it, it’s kind of a surprise,” he says.

At even the best slaughterhouses, he says, the odds favor the microbe: “Lines go at speeds of 300 animals per hour. Each carcass weighs from 650 to 800 pounds. Inspectors do that for 12 to 16 hours, six days a week. They are up against a microbe that is invisible.”

Elder stresses that he found dramatic drops in bacterial loads during processing, but recalls of positive-testing meat show the drop is short of zero. If being hit by a recall is arguably as much luck as science, microbiologist Marsden makes the embarrassing point that only a third of the more than 34 million pounds of meat recalled since 1994 was actually returned by customers. “The rest has been eaten,” he says.

The Assault on Summer

The CDC estimates that there are approximately 73,000 E. coli O157:H7 infections each year and 60 deaths. To lower it further, Marsden wants to see industry double up interventions at slaughter, when any contamination will be on the surface of the meat, not ground through the hamburger.

Former Bush FSIS administrator Cross has formed a new meat company called Future Beef with state-of-the-art tracking and hygiene controls. His Democratic successor, Taylor, now works at the Washington think-tank Resources for the Future, where he is looking for more “holistic” reforms.

At the USDA, Taylor’s successor, Clinton appointee Thomas Billy, says the Democratic reforms still hold and that consumer confidence and consumption are rising slightly. The two burger chains first associated with E. coli O157:H7, McDonald’s and Jack in the Box, are now seen as exemplars of safety and occupy two of six industry seats on the National Advisory Committee on Microbiological Criteria for Foods.

This committee is now debating whether the adulterant rule for ground beef should be extended to steaks, which might be exposed to interior contamination during tenderizing. There have been no confirmed cases associated with steaks.

The CDC’s Griffin wants to see reforms further back in the food chain—in the feedlot. “Unless we go to the root of the problem and address the crowding of animals and how we dispose of their feces, how we feed them, and how we slaughter them, how can we expect our food supply to be free of pathogens?” she asks.

Across the country, USDA-funded researchers are in a headlong race looking for treatments for America’s 98 million cattle and the estimated trillion pounds of manure they produce each year. The National Cattlemen’s Beef Assn. says it is not convinced slow-fattening hay is better for E. coli control and cattle health than fast-fattening grain. It is watching research, but thinks controls belong in the slaughterhouse.

Whether it is a case of waking up to the existence of E. coli O157:H7 or feedlot practices of a burger culture giving rise to a sinister new bug, with every year that passes with O157:H7, America dies a little. In 1991, swimming in a lake was associated with infection. In 1996, outbreaks caused by fresh apple cider forced pasteurization of American fruit juice. In 1998, a child died after contracting E. coli in a wading pool, and this summer the CDC is warning against swallowing water in swimming pools and taking kids to petting zoos.

The same kind of precautions are slowly whittling away at British life. Microbiologist Hugh Pennington led the public inquiry into a Scottish outbreak that killed 25 people in 1996. “The paradox about O157,” he says, “is that there’s a hell a lot of it out there. Yet the number of people getting sick is relatively small. There’s a tricky balance to strike. Clearly we can’t stop people going to the countryside but we can’t afford for kids to get their kidneys wrecked.”

If someone is winning, it is Seattle lawyer Marler. “Can they [industry] absolutely guarantee a 100% safe product? Absolutely not. Should consumers expect it? Absolutely not. But they can do better. If they do make somebody sick, they need to step up and take care of them.”

Marler has made everybody from school districts to burger chains step up and take care of victims, to the tune of $75 million in the last eight years, he says. He now advertises on the Internet as an E. coli specialist.

“To be honest, I always thought that, post-Jack in the Box, I’d go back to trying all the other kinds of cases, medical malpractice or product cases,” he says. “I never in my wildest dreams thought you could have a firm of six lawyers and 10 staff and make a great living and do good work on the back of one pathogen.”

The Marler Clark Network