Food-safety lawyer’s wish: Put me out of business
November 23 2009
Maureen O’Hagen profiles Bill Marler in the Seattle Times, including a history of how his law firm’s specialized practice came to be. Marler reveals his “do not eat” short list.
You might say that E. coli has been very, very good to William Marler.
Ditto for salmonella, listeria, hepatitis and the like. If there’s an outbreak of food-borne illness anywhere in the country — spinach, cookie dough, hamburgers, you name it — chances are Marler will be filing lawsuits.
“I love my job,” he said from his Seattle law office. “I represent poisoned little children against giant corporations.”
Talk about a winning formula. Marler, 52, says he and his firm, Marler Clark, have pried $500 million in settlements out of companies that have sickened customers. Depending on your point of view, making millions off sick people may be a good thing or it may be a bad thing. But right now, food safety is unequivocally a big thing.
In March, President Obama said the nation’s lax food-safety policies have created a “hazard to public health.” He appointed a high-level policy group to “upgrade our food-safety laws for the 21st century.” Then a major report warned it would be way too easy for terrorists to poison the food supply.
In the midst of all of this, 80 people were infected with the bacteria E. coli after eating Nestle cookie dough.
This year, food-safety legislation was introduced in Congress — legislation that, for the first time in years, seems to have a chance of passing.
Now, Marler’s not only trying to wring money out of food companies, he’s trying to change the way our food is safeguarded in the first place. He’s been lobbying his political buddies, arranging for clients to testify in Congress, and even sending them to reporters at The Washington Post and The New York Times, both of which put his clients’ E. coli ordeals on the front pages.
“I’m impatient,” he said. “For God sakes, get the bill out of the Senate.”
And then, in early fall, he hit upon an idea: T-shirts.
“Pass meaningful food safety legislation before Thanksgiving,” the drab gray shirts, sent to every U.S. senator, say.
“Put a trial lawyer out of business.”
His smiling face, with a line through it, is emblazoned on the front.
It’s funny. And it’s serious.
1993 was start
Brianne Kiner was Marler’s introduction. In 1993, when the 9-year-old Redmond girl was hospitalized with E. coli infection, her kidneys failed. Her pancreas crashed. Her liver stopped working. She suffered seizures and was in a coma for 40 days.
When she came to, she had to relearn to walk. To chew. To use the bathroom. Her health problems — and expenses — are lifelong.
All this from eating an undercooked hamburger from Jack in the Box. Three kids died in that outbreak, and another 500 Washington residents were sickened.
Brianne’s family hired Marler, who then was with the Keller Rohrbak firm, to file suit. He had been out of law school for just five years.
“Being extremely overconfident, I sort of volunteered to do everything and pushed myself to the top,” he recalled. “Everything” includes not only legal filings but also lots of news conferences.
Some call him a publicity hound. Marler calls it fighting fire with fire. Jack in the Box had a media strategy, and so did he. He figured, the more public the outbreak was, the more likely Jack in the Box would cave. With the family’s blessing, he helped put Brianne’s plight on the national news.
The firm was hired by 200 other families to file claims against Jack in the Box, too.
Marler got Brianne a $15.6 million settlement. Settlements for his other Jack clients ran into the millions. (Generally, clients get 65 percent to 75 percent after costs, and the firm gets the rest.)
After Jack in the Box, he went back to being a general-practice plaintiff’s lawyer. Then, in 1996, came Odwalla. The all-natural juice company sickened 66 people with its unpasteurized juice. Considering the hubbub around Jack in the Box, victims knew where to turn.
By this point, Marler knew the system to protect us from food-borne illness is full of holes. Regulations are a hodgepodge; oversight authority is scattered between the U.S. Department of Agriculture (USDA), which covers meat and poultry, and the Food and Drug Administration (FDA), which covers everything else.
Generally, the government deems it the food companies’ responsibility to make a safe product. For example, the FDA does not require food processors to test for pathogens; the company can decide whether to do it, according to The Pew Charitable Trusts, which is pushing for tougher regulations.
For meats, the USDA can inspect, but it has limited power to close plants or order change. And while it’s illegal, for example, to sell hamburger that tests positive for E. coli 0157, a particularly virulent strain, food processors aren’t required to test for it in their finished products.
This untested meat nonetheless gets stamped with a USDA label and sold to consumers. “I think our government is as complicit in the process as the companies are,” Marler said.
The scariest part? Just a few cells of E. coli in your food could put you through what Brianne went through.
Today, the Centers for Disease Control and Prevention estimates that 300,000 Americans are hospitalized and 5,000 die from food-borne illnesses each year. Some 76 million are sickened.
Back during the Odwalla outbreak, however, there wasn’t as much awareness of the issue. But after that, Marler had a hunch. In 1998, he recruited his former Jack in the Box legal adversaries, Denis Stearns and Bruce Clark, and started a law firm that specialized in food-borne illnesses — a radical idea at the time.
Today, they have clients all over the country. Media coverage helps, but the lawyers also were early in recognizing the power of the Internet. They not only set up a Web site for the firm, they also created sites with comprehensive medical information on every conceivable food-borne illness — and included links back to Marler Clark.
After all, sitting at the bedside of an ailing loved one tends to focus the mind. What is this illness? And how can I possibly afford the medical care? If you Google E. coli — or listeria, or salmonella or even food-borne illness — you’ll find a Marler Clark site in the top 10 hits.
They do not accept every case. The firm first has to pinpoint the cause of the illness — a particular lot of ground beef, an ingredient in a restaurant meal. That process can take months, and like most plaintiff’s firms, it bears the costs upfront. If the firm can’t make a positive match, it declines the case.
Some say Marler’s no trial lawyer. In fact, he’s tried just one E. coli case through to a jury verdict. It went in his favor. The vast majority of the firm’s cases settle.
“We have a lot of big cases, $7 (million) to $10 million cases,” Marler said. “People don’t just give you that kind of money unless you have your foot on their throat.”
Of course, the law of “strict liability” is on his side. If a customer gets sick, whoever made the tainted food is financially liable, whether or not they were negligent.
This, of course, strikes the food industry as unfair.
“There’s plenty of people in the meat industry who, if they looked in the rearview mirror and saw they accidentally ran over Bill Marler, they’d put the car in reverse and make sure,” said David Theno, a food-safety expert hired to revamp Jack in the Box after the outbreak.
Theno, it should be noted, considers Marler a friend.
He’s been called an “ambulance chaser.” A vulture who “thrives on misery.”
“Have a bad day, you parasite,” someone once wrote to him.
Marler loves it. Recently, a reporter asked him for names of supporters and detractors. As to the former, he joked, “Do you want my mom’s phone number?”
And the latter? He eagerly provided a long list of names.
“This guy will really tee off on me,” he said of one food-industry insider. And another.
He likes to tell a story about a speech he gave before members of the National Meat Association. “They introduced me,” he wrote in a blog post, “and nobody clapped.”
“I walked up and stood there for a while without saying anything. And then I said, ‘You may now clap.’ “
He thinks it’s hysterical.
The task of finding real-live Marler haters, however, proved difficult. Some likely candidates, like people in the spinach industry, who he’s sued, declined to comment; others, like Rosemary Mucklow, director emeritus of the National Meat Association, have nice things to say, despite all the lawsuits (and the rank-and-file’s failure to clap).
Which brings us back to his oft-repeated plea: Put me out of business. What he really means is he’s tired of seeing so many people get horribly sick. He believes a lot of illness could be prevented with stricter food-safety laws, the sort Congress is considering.
Some time ago, he decided that just suing food companies wasn’t enough. He travels across the country, and even the world, to speak about food safety to those who are in a position to do something about it — the farmers, processors and officials in charge of it all.
He tells them about his clients: the children on ventilators; the once-vibrant men on dialysis; the moms who’ve lost their intestines to the ravages of food-borne pathogens. And he lets them know how a jury might view things.
Marler calls it the “You shouldn’t poison people” speech. He’s made it before several industry groups, including the spinach growers, whom he sued after an E. coli outbreak in 2006. (He does not get paid for these kinds of talks.)
Even though the tainted greens were traced to just four fields in California, spinach sales plummeted.
“They were looking for scapegoats,” recalled Brad Sullivan, an attorney who represents the industry.
Marler gave his talk, and withstood pointed questions. In the end, Sullivan recalls, farmers stood in line to shake his hand.
“Through the force of his personality, and being so knowledgeable ... he made a lot of people think,” he said.
Legislation on the move
Periodically, in the wake of an outbreak, Congress considers food-safety legislation.
“They call me up and ask me if I have any victims who will testify,” Marler said. “Little kids, dead people’s families. It’s theater.
“In 2006, it was spinach. (Lawmakers) shook a bag of spinach, belittled the corporate leaders but nothing happened.”
Same thing with the peanut-butter outbreak in 2008.
But this year, things seem different. Obama is interested. And consumers are become increasingly aware of food-safety problems. The House passed one bill, and another bill was passed out of a Senate committee last week. Meanwhile, Marler is working on another angle. He wants to become the undersecretary of Agriculture for food safety, a job for which he’s applied, and for which former Gov. Gary Locke, now Obama’s commerce secretary, floated Marler’s name.
“My wife has said, ‘I don’t think you have the patience for it,’ ” Marler said. “And maybe that’s ultimately true. But when you know you’re right ... .”
Sprouts, raw fish on attorney’s ‘do not eat’ list
So what won’t you eat if you spend your days focused on horrific food-poisoning cases?
Turns out William Marler’s “Do Not Eat” list is short and sweet.
• No raw oysters or raw fish.
• No sprouts. “It’s like a petri dish,” Marler said of the way they’re grown.
• No bagged leafy greens. The greens from dozens of fields are mixed together, so there’s more chance of contamination. It’s better to buy whole heads of lettuce.
• No hot dogs.
• No unpasteurized juice or milk.
• And no hamburgers. “My growth industry lately has been frozen, preform patties,” he said. Scrap meat from thousands of cows gets mixed together at processing plants, so there’s no telling what you’re getting. If you don’t cook them all the way through — which most people don’t — any bacteria might survive.
As for the organic craze, Marler isn’t convinced the food is safer. Some in the organic community, in fact, are fighting food-safety legislation under consideration in Congress because they think the regulations unfairly burden small farmers.
“The local and organic people need to pay more attention to food safety,” he said. “They say if you can look a farmer in the eye, he won’t poison you. I say bull.”