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Why food-safety attorney in $650M outbreak lawsuits doesn't eat bagged lettuce


lohud.com by David Robinson, May 23, 2018

You've heard the warnings, but here's why this strain of E. coli is particularly hard to avoid. USA TODAY

Prominent food-safety attorney Bill Marler described the romaine lettuce E. coli outbreak as a wake-up call for Americans’ risky eating habits.

Having settled foodborne illness lawsuits worth about $650 million over the past 25 years, Marler said many outbreaks stem from mishandled produce.

“This will piss people off in the leafy green industry, but I encourage people to buy whole heads of lettuce and wash it themselves at home,” Marler said, citing his court battles over E. coli contamination of spinach and lettuce.

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“All of the outbreaks involve washed, chopped, mass-produced lettuce,” he said. “I think the industry and the consumers need to rethink whether the convenience is worth the risk.”

Marler is representing several of the 170-plus people authorities say got sick after eating romaine lettuce from Yuma, Arizona, one of the worst cases since a spinach outbreak that sickened about 200 and killed five in 2006.

“This (romaine) outbreak is going to wind up costing people hundreds of millions of dollars,” Marler said, noting the toll includes lost lettuce sales unrelated to Yuma.

Further, authorities have struggled to trace the outbreak to an original farm because of regulatory breakdowns at several points along the circuitous American food chain.

“There is an economic reason why these outbreaks need to be prevented, and if they do happen to try to keep them as small as possible by getting to the culprit sooner,” Marler said.

In light of the romaine outbreak and foodborne illnesses hitting popular Westchester County restaurants, The Journal News/lohud questioned food-safety experts and analyzed public health data.

The discussion with Marler, who is representing several people in hepatitis A lawsuits against bartaco in Port Chester, is part of the ongoing investigation. It is edited for space and clarity.

Question: Why is processed lettuce more dangerous?

Answer: In the last decade, I’ve handled every E. coli outbreak linked to leafy greens and never had a case of an individual head of lettuce being the cause.

Basically, the more you mess with stuff, the more likely it is that something can go wrong. I don’t eat bagged lettuce.

It’s also true when you mass produce something and something goes wrong, it is more likely people will notice because 100 people get sick instead of one or two.

The 2006 spinach outbreak, for example, was a 20-acre farm that cut all their spinach…It went into their bins and it got washed and chopped and bagged and shipped all over the country.

And there was an animal intrusion on the farm. Likely some wild pigs ate some cow poop and went across the street and rooted around and did their business in the farm.

But the little bit of poop that was in one area got spread out across a lot of product by the washing and cutting and bagging. That’s a problem because it could have been a couple of people sick instead of hundreds.

Q: What about promoting healthy eating?

A: Eating fresh food is not without risks. That’s why our ancestors started cooking meat, but the problem is that you want to encourage people to eat more healthy and more plant-based food.

But if you’re going to do it, you’re limiting your risk of exposure if you buy one apple and bring it home and wash it really well.

By contrast, you’re increasing your risk if you buy apples sliced and put in a bag and shipped across the country to New Jersey.

I understand everyone is busy and wants to eat healthy, but it’s a game of numbers.

Q: What makes the current romaine outbreak different?

A: We haven’t been able to pinpoint the exact location the contamination occurred.

And you can’t really learn preventive measures going forward if you don’t know where it originated.

The new federal Food Safety Modernization Act went into effect in 2011 to try and address some of the problems … and it is frustrating that it’s seven years later and we’re seeing outbreaks of similar proportions and the same issues.

Q: What are some of the problems?

A: There is probably going to be a need to look at traceability requirements of the produce industry … to really look at why we’re not being able to quickly find what the source of outbreaks are and is there any legislative or regulatory fix for that.

For example, require barcodes more often, or have more blockchain traceability standards (which involve tracking business transactions better).

The other thing is image. If you’re a farmer in Yuma and you’re not growing romaine and you’re not the cause of this outbreak, that would piss me off.

We really could build a consensus between regulators, consumers and farmers for more traceability.

Q: What about being more specific in food labeling than 'Product of the United States'?

A: I don’t know if labeling inside the United States makes sense, but I think the retailers should know where the heck the product is coming from.

Q: What about people who say an attorney just wants to know who to sue?

A: That’s really not it.

Under the law because I’ve already filed five lawsuits I can sue the restaurant where the person ate the lettuce and that restaurant can flip on who processed it for them and who washed it

From a legal perspective, I really don’t care who the farm is because I can sue the grocery store and I can sue the restaurant.

But from a public health perspective and doing this for 25 years, I have a good idea for how important it is to improve traceability.

Q:How bad is the romaine outbreak in illnesses and potential settlements?

A: There has been one death this far and I’ve got 13 people with acute kidney failure…each case has a value between $1 and $10 million on average.

The CDC is going to be updating the numbers to more than 170 sickened…and the rest of the ones will vary from tens of thousands of dollars and hundreds of thousands of dollars.

Then there are any claims of retailers who might have pulled products off shelves and sent a bill.

This outbreak is going to wind up costing people hundreds of millions of dollars.

Outbreak of this size has enormous impact, and it has an unknown impact if you look at the sales of romaine lettuce.

Regardless of where it’s grown, a lot of romaine lettuce growers are going, ‘Damn.’

And at this stage FDA officials would agree that it is frustrating that they haven’t been able to link the outbreak to a farm, or rational as to why it happened.

It deletes customer and public confidence in the FDA and the industry.

Q: Why is tracking produce outbreaks so difficult?

A: They’re figuring out the outbreak based on sick people and not everybody has leftover evidence because generally people eat the evidence, that’s how they got sick.

Sometimes you get lucky and there is a bag of leftover romaine that you can test or end up going out to the farm.

And what is different about the 2006 spinach outbreak is they found the E. coli strain in leftover bags of spinach.

So, they knew where it came from immediately, or at least who the processer was, and then moved.

There was a pretty limited number of people and farms bringing in the spinach and they did environmental testing and found cow poop and a pig that tested positive for the same strain near a farm.

That's what they're missing here is that kind of connection.