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Bill Marler, Food Safety Litigator

April 14 2009

Culinate‘s Miriam Wolf interviews Bill Marler about food safety, raw milk, local food, and feeding a family when you know too much about what can go wrong.

Bill Marler knows food poisoning.

In 1993, as a Seattle trial lawyer, he was hired to litigate against the fast-food restaurant chain Jack in the Box, whose E. coli-contaminated hamburgers had killed four children. Since then, he’s worked on nearly every major case of food-borne illness in the U.S., including the current salmonella-in-peanut-butter scandal.

Marler — who keeps a blog about food-safety issues — talked with Culinate recently about raw milk, locally grown food, and food-safety reform.

Thanks for agreeing to chat. I’m not going to be as hostile as some interviewers.

Just yesterday I was at a National Meat Association meeting to give a speech. And there were 400 people there. And they introduced me, and nobody clapped.

I walked up and stood there for a while without saying anything, so there was this kind of awkward silence. And then I said, “You may now clap.” And they clapped.

The reality is that most people don’t like lawyers, because usually when you’re dealing with a lawyer, there’s something . . . amiss, one way or another. But, you know, I’ve got a thick skin.


How did you get your start in food-safety litigation?

The 1993 Jack in the Box case was really the first major food-borne illness outbreak that got the public’s attention. There were four deaths, and there were about 50 kids who suffered hemolytic uremic syndrome, so it was a significant outbreak. I wound up representing a number of the very sick kids, and eventually was the lead counsel for the vast majority of the plaintiffs in the entire litigation.

Did you have experience with that kind of litigation before?
No, not at all. At the time, I’d been a lawyer for five years. I wound up getting the cases and just working really hard to understand the medicine. And when it ended, I thought I’d just go back to being a trial lawyer, representing, you know, victims of whatever.

It didn’t work out that way. The Odwalla case happened right after that, and then more and more food-borne illness cases. I kept getting referrals from other lawyers around the country.

In 1998, I started Marler Clark to specifically focus on food-borne illness litigation. In many respects, it’s been sort of unfortunate that it’s been quite successful.

How true. Is it my imagination, or has the pace of food-safety outbreaks been increasing over the past several years?

If you look at the Centers for Disease Control figures for outbreaks, you can see that they’ve stayed relatively stable, but at a very, very high level. So I’m not sure if we’re really seeing a lot more outbreaks per se, or if we’re just figuring them out more. We have a lot more technology to figure them out now.

Do you think the media is more fascinated by food-borne outbreaks these days?
Some of it is admittedly over the top. I was at the hearings last week with the peanut-butter fellow and the media chased him down the street, kinda like Britney Spears. So I certainly think that it can be overdone.

On the other hand, I think the media reflects how outraged the public feels about living in a First World country and having our food poison and kill us.

This peanut-butter case is a great example of the fact that our food supply has become so intertwined and so massive that one small bad operator — the Peanut Corporation of America, which makes a very small percentage of peanuts, peanut paste, and peanut product — has now caused the largest food-borne illness outbreak in a long time and the largest food recall in U.S. history.

I think that’s also another way to answer the question of whether we’re seeing more [outbreaks]. I think what we’re in part seeing is just more outbreaks tied to large production.

Do you think that the globalization and standardization of our food supply is inevitable? And do you think that these food-borne illness outbreaks will cause people to rethink the way we get our food?

I’m less concerned about globalization as it relates to food safety, primarily because in 15 years of doing food-poisoning cases, I can count on one hand the times a foreign-made product has poisoned us. U.S. corporations do a marvelous job of poisoning our own citizens.

But as our food supply goes global — as consumers want tomatoes all year round — the chain gets stretched farther and farther. And you continue to have potential problems like what happened at the Peanut Corporation of America, where one bad actor ruins the whole production chain.

Now, I and my family try to eat as locally and as regionally as possible, but it is certainly a pretty difficult thing to do. And with the population ever increasing, I have a really difficult time trying to figure out how we can all eat within 100 miles.

I wish I had a great answer, but I’m not positive that shortening the food chain and having everything grown locally is necessarily going to give you safer food. It could. It may be that the outbreaks wouldn’t be quite so large. But I just don’t know what the answer is.

In your list of food-safety challenges for 2009, you question the safety of local food. How big a food-safety threat do you think things like farmers’ markets pose?

My concern is that there’s a sense that somehow, if you’re able to look a farmer in the eye, that farmer’s products are magically not going to poison you. And that’s just not the case.

Now if you ask me, “Bill, how many times have you had a case where people have been poisoned by food at farmers’ markets?” the answer is, I’ve never had one. But just like everything else, the larger the demand is, the more likely it is that there are going to be more problems.

Clearly, it’s not a big problem. My concern is that we don’t [forget] that all food can make you sick, whether you know the farmer or not. That was really my point, not that I don’t like small local farmers.

I live on Bainbridge Island. We have an organic grocery store on the island. I drove by one day and there was a sign that said “Raw milk for sale.” I walked in and I said, “Hi, my name is Bill Marler, and you just don’t want to do that.”

You’re not in favor of raw milk?
Um, you know, I’m not. And it’s not because that’s what I had to drink when I was a kid, although that is what I had to drink when I was a kid. My parents were sort of wannabe back-to-nature people, so we did the whole hobby farm, trying to be self-sufficient.

My concern with raw milk is that people have this desire to go back to the 1940s and 1950s and live a simpler life, which is not such a bad idea in many respects. The problem is that the bacteria and viruses that exist now are way different than what existed then. E. coli 0157 and the shiga-toxin-producing E. coli that can kill us didn’t even exist until the late 1970s and early 1980s, and they’re changing all the time.

So when people say, “I used to drink raw milk all the time when I was a kid,” well, the raw milk you were drinking as a kid 40 years ago had way different risks than the raw milk that you potentially drink today.

And I look at it from the perspective of representing children who have had raw milk and their parents thought that they were giving their kids a healthful product that had been sort of sold to them as a product that could kill bacteria, not contain bacteria. And these kids have had pretty severe hemolytic uremic syndrome.

So my perspective on it is, there’s no real convincing evidence that raw milk is so much better for you that it’s worth the risk of feeding it to your children.

How has your line of work affected your own food choices?
It probably has impacted less what I eat and more what my kids eat. My children, who are now 16, 13, and 9, have never had a hamburger. Never. And we’re very, very careful about things like sprouts and raw products, although we try very hard to get local vegetables and local fruits and wash them thoroughly.

I probably think too much about the foods we eat, primarily because outbreaks happen so often. I think I’ve just had too much experience with the negative side of food.

Who do you think has the biggest responsibility in preventing food-borne illness outbreaks: industry, government, or consumers?

When I was at the meat meeting, repeatedly people would say, “If only people would cook the meat.” And of course, my response to that was, “If only you didn’t put cow shit in it, people wouldn’t have to worry about it.”

I’ve also been very, very disappointed in government for the last dozen years. For many years, you couldn’t get a hearing. Now you can get hearings, but they never seem to do anything. Government needs to fund regulators sufficiently for them to help prevent outbreaks. But Congress and the bureaucrats seem more intent on having a great press conference and saying that they’re going to make a new food-safety agency or something. And then they don’t do anything, and a year later, another outbreak happens, and they say the same thing over and over and over again.

But I also think consumers tend to be way too passive. Passive not only in their knowledge of food safety and food risks, but also in holding corporations and politicians accountable for making our food supply safer.

Ultimately I believe it’s the consumer’s responsibility. But obviously it’s a shared responsibility. I’ve seen great corporations that do a marvelous job of not poisoning their customers. I seldom get to spend much time with them because I’m never suing them.

What would you like to see the new administration enact as the top policy changes for food safety?
The first thing I would do is increase our ability to surveil pathogen outbreaks. Look at the peanut-butter case; it really started in late August or early September, but it wasn’t figured out or announced until after the first of the year.

In many of these outbreaks, anywhere between 20 and 40 times the number of people who are counted actually do get sick. If we were doing more rigorous surveillance at ERs and pediatrician offices and primary-care providers, if local and state health authorities were gathering that information in a timely way and getting that information to the CDC, you’d basically be taking an outbreak that starts in August and figuring it out in September or October at the latest. You’d figure out the outbreak sooner, you’d figure out who the producer was sooner, and you’d save people.

And figuring out outbreaks sooner means that you’re more likely to be able to pinpoint a particular supplier sooner, so you don’t have the problem like you had last year with salmonella in produce: “It’s tomatoes — oh, never mind, it’s peppers!” And the tomato industry loses hundreds of millions of dollars. Putting an infrastructure in place for reporting outbreaks would be a good thing.

My other major move on food safety would be to have all food manufacturers have some sort of hazard-analysis, critical-control type plan. And they should do environmental and end-product testing. Everyone should be required to do it. And all the test results should be completely transparent, so the government doesn’t have to ask for them and the companies that are having repeated problems can be helped.

That, however, would require more funding for the FDA and the Food Safety and Inspection Service. It’s not going to be an easy thing. But hey, there’s money floating around.

Stimulus money?

Yeah! Come on, stimulate food safety!

The Marler Clark Network