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Food-Safety Lawyer Puts His Money Where Your Mouth Is

September 29 2010

Andrew Schneider of AOL News profiles Bill Marler’s efforts to get non-O157:H7 E. coli strains added as USDA adulterants. (Second of three parts)

Why should a trial lawyer kick in a half-million dollars of his own money to document the presence of an unregulated pathogen in America’s meat supply when the agency responsible for meat safety won’t?

“That’s precisely why,” William Marler explained to AOL News before a meeting last week with the U.S. Department of Agriculture’s top food-safety official.

“Much like a bureaucratic ostrich with its head buried in deep sand, the USDA insists that these non-O157 strains aren’t a problem, but they’ve rarely gone out and tested what’s actually in the butcher’s case.”

The USDA forbids the presence of E. coli 0157 in any meat sold in the market. But there are thousands of other strains of E. coli, including at least six that experts believe can be particularly harmful.

For years, food safety experts like Mansour Samadpour, a nationally respected food scientist, and others, including some government risk-assessment specialists, were telling Marler about people sickened by the usually ignored non-O157 strains of E. coli.

Utah Case Started His Pursuit

The attorney’s first run-in with non-O157 E. coli was in 2006, when he represented two women sickened after eating at a Wendy’s restaurant in Utah. The Utah health department did the routine test for O157 and came up negative. It tested again and got the same results, Marler recalled. Finally, the department tested for all Shiga toxins and found E. coli O21, probably in the lettuce.A year later, he represented the family of a 13-year-old Ohio girl who died after eating food contaminated with E. coli 0111, but repeated tests could not pin down the source of the poison.

The meat industry and some of its protectors inside the USDA insisted that the non-O157s weren’t really a problem and that it had never been shown that these pathogens existed in the meat supply.

That was the same argument they made before the massive Jack in the Box outbreak in 1993. It was this mass poisoning that swept Marler into the food safety arena when he represented many of the 700 people sickened and four killed after eating the E. coli-tainted ground beef.

In early 2008, Marler began talking seriously to Samadpour, who heads the Seattle-based Institute for Environmental Health, about sampling meat in groceries to see whether there was widespread contamination. The microbiologist had worked with Washington state heath officials doing DNA analysis on E. coli O157 found in the Jack in the Box outbreak.

A deal was struck, a testing protocol developed and Samadpour told his labs across the country to begin buying 5,000 of the large, plastic-sealed packages of ground beef and analyzing the meat inside for all strains of E. coli. They used plastic-encased tubes to avoid store-induced contamination.

Marler hardly kept his expensive study a secret. Samadpour briefed the USDA scientists three times and shared the findings with the National Meat Association and American Meat Institute.

Samadpour found a low percentage of the meat was contaminated by the non-O157 strains of E. coli—about 2 percent. But since American consumers eat billions of pounds of ground beef each year, that 2 percent means millions of pounds of potentially dangerous meat are being eaten.

No Action From USDA

The USDA listened but took no noticeable action.

Last October, Marler and his team filed a citizen’s petition to force the USDA to declare the non-O157s an adulterant. They heard nothing until Marler threatened to sue, and then all the agency did was acknowledge that it received the petition, as the law requires.

“Our testing showed that these unregulated strains of E. coli are on store shelves.” Marler told AOL News in a lengthy series of interviews earlier this year. “Federal law clearly says that anything in food that can sicken or kill you should be an adulterant and kept off the market, so why is USDA turning a blind eye these E. coli?”

Last week, Marler joined three other activists meeting privately with Dr. Elisabeth Hagen, the USDA’s recently sworn-in undersecretary for food safety, to discuss the non-O157 E.coli. After 90 minutes, Marler said that he agreed with the other participants that Hagen understood the risk to public health and that they were now closer than ever—maybe just months away—from seeing the USDA do its job.

Many of his critics say Marler spent $500,000 on testing just to generate new business. Not so, he says.

“From a legal prospective, it doesn’t matter whether the pathogen is considered an adulterant or not. If the injured party is sick and we can prove the source of the pathogen, they can still sue,” Marler said. “The reality is that the easiest way for the industry to make sure that I don’t make a penny from their shortcomings is to not poison the people in the first place.”

Nancy Donley, president of Safe Tables Our Priority, an advocacy group representing food-borne illness victims, said it’s a “really cheap shot” for anyone to say that the three years that Marler and Samadpour put into the testing was “just to stir up more business.”

“Marler could retire tomorrow and live a very comfortable life,” Donley said.

Lots of “Razzle-Dazzle”

Donley, who lost a son to E. coli-poisoned beef, said Marler’s commitment to food safety is genuine. However, she acknowledged that the 53-year-old lawyer is “not above a display of showmanship from time to time to prove a point, and that is precisely what he was doing when he spent his own money to prove that ... contaminated meat is still making its way into grocery stores.”

Many of his friends and some of those who sat across from him in a negotiating session call him a master performer, likening his antics to those of the “razzle-dazzle” lawyer from the musical “Chicago.” The difference is that Marler rarely goes into a courtroom. Out of the hundreds of E. coli cases he and his firm have handled, only two had to go to trial.

“We research our cases so thoroughly that once we are able to prove that the product was contaminated and the product caused the illness, the only thing to fight over is what the value of the case is,” Marler said.

He won’t offer specifics but says that after 17 years of doing food cases, MarlerClark has earned more than a half-billion dollars for its clients.

The firm has seven lawyers. Two of his partners are Bruce Clark and Denis Stearns, who both represented Jack in the Box across the table from Marler. There are about 20 full-time staff members, including an epidemiologist and some dynamite researchers.

Marler gives a lot of credit to the Internet. “Because of advancements in technology, our relatively small firm is able to go toe-to-toe on multiple battlefields with the major food companies, taking them on without necessarily needing to field an equal-sized army,” he explains.

Makes Use of the Media

Some consider him an emperor of multimedia. The October issue of Wired, the popular magazine once for geeks but now for anyone wants to know what’s happening in the tech world, headlines a story about Marler with “Toxic Avenger” and talks about the way his gang has captured the Web. Search online for E. coli, salmonella or any of the other pathogens and you’re led to one of MarlerClark’s dozen websites or his online magazine Food Safety News.

He is a darling of the national media, sought out within hours of any major food-poisoning outbreak for pithy quotes or a whispered tip on what his deep-digging team has quickly ferreted out.

Some people don’t like Marler, however. AOL News contacted five other lawyers who handle food-borne illness cases and defense lawyers who say they work for large food companies. Only two would talk, even without their names being used.

Marler is good. Many of us are much, much better. He just does a better job pimping his own successes than most of us do,” said one Midwest lawyer. He would offer no details, citing bar association edicts against talking bad about brother barristers.

Another defense lawyer, who said his firm represented two major food industry companies in cases that Marler pushed, called him ruthless, adding, “If his client is a kid, even a teenager, there is absolutely nothing, nothing at all Marler won’t do to get a juicy settlement. He doesn’t understand compromise, and sometimes I wonder how he sleeps.”

It has been 17 years since the Jack in the Box outbreak, and Marler still has photos of some of the young victims in his office. Those around him say he often gets too emotionally involved with his clients and has been known to sit at their bedside or, at times, stand by their graves. Death from food poisoning can sometimes be lingering.

He sometimes cut deals on their behalf with the chain or food producer he’s suing, or their insurance companies, to get immediate money to pay for expensive medical services the family needs, one mother told AOL News earlier this year.

International Reputation

Marler has spoken on food safety before the British House of Lords and government health agencies in France, Canada, New Zealand, Australia and, several times, in China.

He has hosted his own international food-safety conferences, where the good guys, the villains and everyone in between pack the hall. He puzzles his peers by giving safety lectures to the top bosses of some of the enormous food companies he most often sues.

Last year, he had T-shirts delivered to all U.S. senators with a large red line diagonally running across his face. The type said, “Put a trial lawyer out of business, pass the Food Safety Act.”

Marler admits his mouth sometimes gets him into trouble. Last month, when discussing the salmonella-caused massive egg recall on CNN’s “Larry King Live,” Marler joked that he was going to build his own henhouse.

“As soon as I got home, my 11-year-old daughter stopped me and said, ‘Great, Dad. When do we start building?’”

The far too elaborate house for six hens is almost finished, and Marler says he doesn’t want to begin figuring how much per egg his mouth cost him.

 

The Marler Clark Network