Q&A: Food Safety Lawyer Bill Marler on What Not to Eat
November 5 2014
Jenna Greene, The National Law Journal
November 3, 2014
Where you see food—a rare hamburger, a salad with alfalfa sprouts, a slice of cantaloupe—Bill Marler sees pathogens. A name partner at Seattle’s Marler Clark, he has represented victims in every major food poisoning outbreak for three decades, winning more than $600 million for his clients.
Every day, Marler’s work revolves around people who became ill— vomiting, bloody diarrhea, organ failure, coma, sometimes death—from something innocuous that they ate.
Knowing that, how does he sit down at the table and pick up a fork?
The National Law Journal talked to Marler about food safety. The interview was edited for clarity and length.
NLJ: How have your cases affected your food choices?
Marler: After the Jack in the Box [E. coli] outbreak, I did not eat a hamburger from 1993 until 2014. I wouldn’t let my kids eat hamburgers growing up. From 1993 to 2003, most of the cases we dealt with were E. coli cases linked to [undercooked] hamburger. But from 2003 to the present, I’ve had maybe one E. coli case linked to hamburgers a year. The meat industry has really done an amazing job of cleaning up the problem—and I have no reason to be nice to them. I had my first hamburger earlier this year. I admit I did have it cooked incredibly well-done. NLJ: What else don’t you eat?
Marler: One thing that I see repeated problems with—sprouts. Just stay away from sprouts. They have not been able to figure out a good way of assuring that sprouts aren’t contaminated. Sprouts have been one of the leading causes of really large-scale outbreaks around the world.
The other thing off the Bill Marler list is any unpasteurized juice or raw milk. They’re just really, really unsafe. Like sprouts, many of the proponents of those products point out all the allegedly healthful qualities, but in my view they are some of the most dangerous food items out there.
I also avoid raw oysters, even though I grew up on them as a kid on Puget Sound. Raw oysters have in my view increased in risk profile. We’re starting to see a lot more norovirus and vibrio outbreaks linked to even cold water raw oysters.
NLJ: What about chicken and turkey?
Marler: The USDA allows for those products to be contaminated. It’s OK for companies to knowingly ship products contaminated with salmonella and campylobacter. I think that’s incorrect and bad public policy, and it accounts for a lot of the illnesses in the United States. Consumers are left on their own. You have to handle chicken and turkey like it’s radioactive.
The other product I avoid as much as I can is bagged spinach or lettuce that’s pre-washed. In my view, it’s safer to buy a bunch of spinach or lettuce and wash it yourself. That becomes more problematic when you’re out to dinner and they’re using triple-washed bagged lettuce because it’s very convenient.
NLJ: What do you eat when you’re at a restaurant?
Marler: Last night I went to dinner with a couple of lawyer buddies. I ordered steak, but I ordered it well done. And a good bottle of wine. And I skipped the salad and ordered a cooked vegetable. I make a mental distinction between things that might kill you quickly and things that might kill you long-term. I’ll bend towards ordering a pizza at a restaurant. The chances of a pizza killing you—pretty low.
NLJ: What do you worry about when eating at home?
Marler: Listeria is a bug that grows really well at refrigerated temperatures. It’s a pathogen that’s grown up alongside modern kitchen technology. I freak my wife out every once in a while. She’ll be gone and I’ll open up the refrigerator and take everything out of there and throw it all away. And she’ll come back and say “That was perfectly good cheese,” and I’ll say “It’s been in there too long!”
NLJ: Are friends nervous about cooking for you?
Marler: My wife, everybody likes her. We’d have people over for dinner, and maybe 15 years ago, I asked her, “Gosh, it must be me. Have you noticed people don’t invite us over for dinner?” And she goes, “Bill, they’re afraid.” “Afraid of what?” She said, “They’re not afraid they’re going to poison you or that you’re going to sue them. They’re just so afraid of under-cooking food or not handling it properly. It’s easier to come over here and have you worry about it.”
NLJ: Any foods that are less risky than people think?
Marler: I’m not as worried about sushi primarily because fish, properly prepared, has a very low risk profile for bacterial contamination. I wouldn’t buy a sushi roll from the 7-11, but I wouldn’t say no to a good piece of sushi at a good sushi restaurant.
NLJ: How do you know if you have food poisoning or stomach flu?
Marler: Most of the time when you are vomiting and have diarrhea, you have a foodborne illness. The vast majority of foodborne illnesses are caused by what’s known as norovirus. A lot of people who call me have no idea what made them sick. A lot of people think it’s the last thing they ate. But each of these bacteria and viruses has an incubation period between time of ingestion and symptoms. E. coli O157 has an incubation period of one to 10 days, but 95 percent of cases are within three to four days. When someone calls me and says “I got E. coli from eating a hamburger at fast food restaurant A 12 hours earlier,” I’m like, “No, you probably didn’t.” Hepatitis A has an incubation period of weeks. Listeria has an incubation period of one to 70 days. So it’s like, “What did you eat 70 days ago?”
NLJ: It must be a challenge to trace the source.
Marler: I live in a strict liability world. Once I figure out causation, then in a sense the game is over. But figuring out causation is not a very easy thing to do. Much of the work we do is medical and scientific, as opposed to the law. The law for products and strict liability is 120 years old. It’s very well established that if you’re a manufacturer and you sell a product that has a pathogen in it that sickens or kills somebody, you’re at fault. The question is, how much is it worth. Proving what caused the illness is what we spend most of our time figuring out.
NLJ: What was your first case?
Marler: The Jack in the Box E. coli outbreak in 1993. In many respects, that was the first major foodborne illness outbreak and litigation in the United States. When that case was winding down, the Odwalla [juice] E. coli case happened. Most of my clients that I got in the Odwalla case were from people around the country who referred cases to me because they’d seen what I did in Jack in the Box.
NLJ: How did you come to found your own firm?
Marler: In 1998, when the Jack in the Box case was over, and the Odwalla case was over, I wanted to bring in Bruce Clark and Denis Stearns, who had been working for Jack in the Box as opposing counsel. I looked at it like there were three lawyers in the United States who probably knew more about foodborne illness than anyone else did—and it was us three. My partners at the time [at Kargianis Watkins & Marler] said no, we can’t imagine this will be a profitable area. I said “I’ve loved working with you guys, but you know what I’m going to do, I’m going to start my own law firm.” So Dennis and Bruce and I started Marler Clark in 1998. We probably had 10 cases and this idea of starting a food-borne illness law practice and focusing just on that. It’s worked out.
NLJ: What can people do to avoid getting food poisoning?
Marler: The simple things—keeping cold things cold and hot things hot and washing your hands frequently. Cooking to the proper temperature is the way to go.
When you look at USDA statistics on foodborne illnesses, the cost in America per year is $16 billion. Economic loss is a big issue. I’ve had clients hospitalized for two years, with six or seven million dollars in medical expenses. Food-borne illness is a big drain financially on society. If we spend a little money combatting that, it’s smart.
A third or 40 percent of my time now is spent going around trying to teach people why it’s a bad idea to poison your customers. A lot of people don’t like being lawyers. I love what I do. But part of the reason is that I get to translate what I’ve learned to teach people what they need to do to avoid these problems to begin with. I’m a very lucky lawyer.