Small is safer, but not guaranteed safe, attorney says
By STEVE BROWN
EVERETT, Wash. -- Bill Marler, a personal-injury attorney who has secured more than $600 million for victims of foodborne illnesses, challenged producers and retailers to make food safety their highest priority.
"What's your culture?" he asked farmers at the recent Focus on Farming conference. "Is food safety really what's on the top of your list, or is it marketing?"
He admitted that he's not someone the food industry usually wants to see.
"If you hate lawyers, don't poison your customers," he said. "If you hate lawyers, put me out of business."
Marler and his law firm, Marler Clark, have litigated hundreds of foodborne illness cases since 1993, and he has become an advocate for a safer food system.
Growing and processing food is a risky business, he said. Producers large and small face highly competitive markets, and there are no clear rewards for marketing and practicing food safety.
Lessons he has learned from litigation can protect a producer's reputation and bottom line:
* Keep good, current information, he said. Pay attention to the best science available.
* Be proactive, and make food safety part of everything you do, from composting to washing.
* Don't presume that being small makes your food safe. A small operation is "safer perhaps, but not safe," he said. Amid the mantras of "Know your farmer, know your food" and "If you can look your farmer in the eye, you know your food is safe," belief does not conform to reality.
Marler gave a short lesson on strict liability and negligence, "the two weapons I have when I go after a food producer."
Strict liability asks simple questions: Are you a manufacturer? Was the product unsafe? Did the product cause injury?
Negligence is a little more complex, he said: Are you a product seller? Did you act reasonably?
When asked what defense a manufacturer could mount, Marler said, "For the most part, if I bring a case, there's no defense. The reality is, if you can prove that the food had pathogen in it and that pathogen sickened the person and the food you ate was the food of the defendant, that's all I need to prove."
There can be challenges that the food actually sickened that person, "but that's a case I won't take anyway. The real question is how much you're going to pay."
Foodborne pathogens cause 48 million illnesses every year, Marler said, leading to 125,000 hospitalizations and up to 3,000 deaths.
"In every foodborne illness outbreak," he said, "there were always opportunities to turn the bus around before it went off the cliff."
Listeria-tainted cantaloupe is the source of the most deadly outbreak in U.S., with 29 dead and 139 sickened so far. When inspectors examined a packing shed, they found equipment "that was basically uncleanable," Marler said.
He said bugs are "bigger, stronger, faster" than 40 years ago, including the O104:H4 variant of E. coli that sickened more than 4,000 people in Europe. The likely source was Egyptian fenugreek seeds, he said. The variant is now in the U.S., he said.
E. coli-tainted chocolate chip cookie dough sickened one person, hospitalizing her for two years. She incurred $6.5 million in medical bills and will spend the rest of her life in a wheelchair needing around-the-clock care. Everything in the dough was pasteurized -- the eggs, the butter, the chocolate -- but not the flour.
"Who would have thought?" Marler said.
Consumers can certainly play a role in protecting themselves, he said, but "most people are absolutely, unequivocally ignorant about food safety."
He encouraged producers to involve their customers, telling them to wash the products and to cook with a thermometer. "Just because you tell the consumers to be smarter doesn't mean that your food is bad. It means that you're connecting with your consumers in a way that ConAgra or a Nestle or a Cargill is never going to be able to do."
He also suggested producers establish relationships with health offices and government agencies.
"When it comes to food safety, lean on them, learn from them," he said. Health inspectors and extension personnel are excellent resources.