Bill Marler

The food-safety litigator

April 14, 2009

Bill Marler knows food poisoning.

In 1993, as a Seattle trial lawyer, he was hired to litigate against the fast-food restaurant chain Jack in the Box, whose E. coli-contaminated hamburgers had killed four children. Since then, he’s worked on nearly every major case of food-borne illness in the U.S., including the current salmonella-in-peanut-butter scandal.

Marler — who keeps a blog about food-safety issues — talked with Culinate recently about raw milk, locally grown food, and food-safety reform.

Thanks for agreeing to chat. I’m not going to be as hostile as some interviewers.
Just yesterday I was at a National Meat Association meeting to give a speech. And there were 400 people there. And they introduced me, and nobody clapped.

I walked up and stood there for a while without saying anything, so there was this kind of awkward silence. And then I said, “You may now clap.” And they clapped.

The reality is that most people don’t like lawyers, because usually when you’re dealing with a lawyer, there’s something . . . amiss, one way or another. But, you know, I’ve got a thick skin.

Bill Marler

How did you get your start in food-safety litigation?
The 1993 Jack in the Box case was really the first major food-borne illness outbreak that got the public’s attention. There were four deaths, and there were about 50 kids who suffered hemolytic uremic syndrome, so it was a significant outbreak. I wound up representing a number of the very sick kids, and eventually was the lead counsel for the vast majority of the plaintiffs in the entire litigation.

Did you have experience with that kind of litigation before?
No, not at all. At the time, I’d been a lawyer for five years. I wound up getting the cases and just working really hard to understand the medicine. And when it ended, I thought I’d just go back to being a trial lawyer, representing, you know, victims of whatever.

It didn’t work out that way. The Odwalla case happened right after that, and then more and more food-borne illness cases. I kept getting referrals from other lawyers around the country.

In 1998, I started Marler Clark to specifically focus on food-borne illness litigation. In many respects, it’s been sort of unfortunate that it’s been quite successful.

How true. Is it my imagination, or has the pace of food-safety outbreaks been increasing over the past several years?
If you look at the Centers for Disease Control figures for outbreaks, you can see that they’ve stayed relatively stable, but at a very, very high level. So I’m not sure if we’re really seeing a lot more outbreaks per se, or if we’re just figuring them out more. We have a lot more technology to figure them out now.

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Do you think the media is more fascinated by food-borne outbreaks these days?
Some of it is admittedly over the top. I was at the hearings last week with the peanut-butter fellow and the media chased him down the street, kinda like Britney Spears. So I certainly think that it can be overdone.

On the other hand, I think the media reflects how outraged the public feels about living in a First World country and having our food poison and kill us.

This peanut-butter case is a great example of the fact that our food supply has become so intertwined and so massive that one small bad operator — the Peanut Corporation of America, which makes a very small percentage of peanuts, peanut paste, and peanut product — has now caused the largest food-borne illness outbreak in a long time and the largest food recall in U.S. history.

I think that’s also another way to answer the question of whether we’re seeing more [outbreaks]. I think what we’re in part seeing is just more outbreaks tied to large production.

Do you think that the globalization and standardization of our food supply is inevitable? And do you think that these food-borne illness outbreaks will cause people to rethink the way we get our food?
I’m less concerned about globalization as it relates to food safety, primarily because in 15 years of doing food-poisoning cases, I can count on one hand the times a foreign-made product has poisoned us. U.S. corporations do a marvelous job of poisoning our own citizens.

But as our food supply goes global — as consumers want tomatoes all year round — the chain gets stretched farther and farther. And you continue to have potential problems like what happened at the Peanut Corporation of America, where one bad actor ruins the whole production chain.

Now, I and my family try to eat as locally and as regionally as possible, but it is certainly a pretty difficult thing to do. And with the population ever increasing, I have a really difficult time trying to figure out how we can all eat within 100 miles.

I wish I had a great answer, but I’m not positive that shortening the food chain and having everything grown locally is necessarily going to give you safer food. It could. It may be that the outbreaks wouldn’t be quite so large. But I just don’t know what the answer is.

In your list of food-safety challenges for 2009, you question the safety of local food. How big a food-safety threat do you think things like farmers’ markets pose?
My concern is that there’s a sense that somehow, if you’re able to look a farmer in the eye, that farmer’s products are magically not going to poison you. And that’s just not the case.

Now if you ask me, “Bill, how many times have you had a case where people have been poisoned by food at farmers’ markets?” the answer is, I’ve never had one. But just like everything else, the larger the demand is, the more likely it is that there are going to be more problems.

Clearly, it’s not a big problem. My concern is that we don’t [forget] that all food can make you sick, whether you know the farmer or not. That was really my point, not that I don’t like small local farmers.

I live on Bainbridge Island. We have an organic grocery store on the island. I drove by one day and there was a sign that said “Raw milk for sale.” I walked in and I said, “Hi, my name is Bill Marler, and you just don’t want to do that.”

You’re not in favor of raw milk?
Um, you know, I’m not. And it’s not because that’s what I had to drink when I was a kid, although that is what I had to drink when I was a kid. My parents were sort of wannabe back-to-nature people, so we did the whole hobby farm, trying to be self-sufficient.

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1. by JudithK on Apr 14, 2009 at 10:34 AM PDT

Thank you for your thoughtful interview.
I have a couple of questions, if you don’t mind.
What’s your take on HR875, the Food Safety Modernizaton Bill? Do you think it puts a crippling burden on small farmers? importers?

There was a recent editorial in the NYTimes about free range pigs not being safe. The blog world seems to think that he was a paid shill for the industrial pork industry. What’s your take? Link here:

2. by Bill Marler on Apr 14, 2009 at 2:29 PM PDT

875 - and the other various bills floating around. I have been to DC and have talked to the people pushing this legislation - there are not tools of the Ag/Industrial complex. However, small farmers, organic folks and the local/sustainable people need to engage to make sure these bills do what they are intended to do - bring BIG Business into compliance. On the Free Range Pigs - I think that that is a preliminary study. I am looking into who funded it. “Follow the money.”

3. by Hank Sawtelle on Apr 14, 2009 at 8:18 PM PDT

What an interesting interview. Litigation surely is the fastest way to come up to speed in a complicated scientific area. I loved the response to the meat people “if only you didn’t out cow shit in the meat . . . " and I hope that was really said!

Perhaps kids shouldn’t have raw milk today, but going back the 40s and 50s in other ways wouldn’t be so terrible. STEC and MRSA probably came from the modern industrial meat system, and who knows what new bugs are that will be generated if demand for their products stays strong.

I don’t think there is a widely-held belief that looking the farmer in the eye makes the food “magically” harmless, but understanding the chain and where the food comes from is an improvement. If consumers want to accept responsibility for their food choices, arms-length transactions with the farmer is a much fairer starting point than a shrink-wrapped generic package at the mega-mart. And most of the widespread/deadly problems today seem to come from somewhere in the industrial food system. The things that cause deadly food-borne illness outbreaks don’t seem to be happening in the operations of small grower-retailers. That isn’t to say we shouldn’t learn from the outbreaks and apply those lessons in the future.

Safe food handling in the kitchen was one of the most valuable things I learned in culinary school; I wonder if every home cook became ServSafe certified what that would do to the incidence of food borne illness . . .

4. by anonymous on Apr 14, 2009 at 10:13 PM PDT

Wow, wonderful interview. Thank you. I am a farmer and I do agree that there is a widely-held belief that if you know the farmer the food is safe. I hear it every market. And when someone buys something from me and then proceeds to pop it in their child’s mouth I usually say, “you should probably wash that first.”

It is funny, usually their first response is about ag-chemicals and I always have to explain that no, there is nothing on the produce but it was hand-picked. And although we teach and reteach about proper handwashing and good field sanitation practices, one never can be sure.

I would say 9 times out of 10 the person just shrugs, feeds the child the piece of produce and exclaims, “but it’s natural and I know you are a good farmer.”

Unfortunately, I don’t think this is only a big industrial farm problem. I think all food producers should be concerned with food safety. One can get sick from produce from a 15 acre farm as easily as from a 300 acre farm. I think anyone who thinks differently is kidding themselves.

5. by Hank Sawtelle on Apr 15, 2009 at 7:39 AM PDT

Anon, you’re right, all food producers and consumers need to be concerned about food safety. If 9 out of 10 consumers (in your survey) choose ignorance, I don’t know what can be done about that.

I still think the controls are easier and more effective in a shorter local loop than for people in Alabama buying produce from China. There’s more ways for stuff to go wrong (to use the HACCP logic alluded to by Marler). Understanding it’s not a perfect world, I’d rather buy from Polyface Farm than No-face Farm when I can. I’m open to being convinced otherwise, but the way things are currently going is not doing it.

6. by anonymous on Apr 15, 2009 at 1:24 PM PDT

I agree, I don’t think I was arguing anything different in my previous comment. No doubt traceback is (or should be) much easier with local products.

7. by JudithK on Apr 15, 2009 at 3:21 PM PDT

Ciao all.
My concern with 875 is that it uses the same paint brush for the small farmer as it does for the large ag business. It also has a very thinly veiled political agenda. Just read the opening statement where they vow to protect us from imports. Food safety is one issue, protectionism is quite another.

Hank, I appreciate and believe in the sentiment that you express regarding arms length purchases, but I’m afraid at the end of the day that it is a sentiment, not a quantifiable fact. When talking about feeding people on a large scale, small farms and markets could not physically meet the demand, so while I like to go to the farmers market, its not always an option for the masses, so we still need to look at long range, mass sustainable solutions for feeding people. No one ever said it would be easy.
Great discussion on a very nuanced topic.

8. by Hank Sawtelle on Apr 15, 2009 at 4:24 PM PDT

@JudithK - for sure no one gets all their food at farmers’ markets. But why couldn’t long-range mass sustainable solutions include shorter distribution chains?

9. by JudithK on Apr 16, 2009 at 8:30 AM PDT

Great question Hank. I don’t know why we couldn’t have shorter distribution chains, it’s worthy of serious thought. Off the top of my head I think the problem would be with staple products that are optimally produced in one growing area but used all over the country.
Want to collaborate on exploring this?

10. by JeanE23 on Apr 17, 2009 at 12:12 PM PDT

Great interview, thanks. I just take issue with one sentence in answer to who has the biggest responsibility for preventing outbreaks: “Ultimately I believe it’s the consumer’s responsibility.” I don’t see how this can be when companies routinely keep information from consumers, government oversight is lax, and even highly regarded research can be questioned. The tomato/pepper issue mentioned is a good example. The consumer can only respond to what is made public, and we are often responding to knee-jerk conclusions. And with the peanut outbreak - was there any consumer safe food handling procedure that would have prevented the first victims? I’m all for taking personal responsibility, but, ultimately, I have to rely on the experts to supply me (through the media) with good, and complete, information.

11. by Liz Crain on Apr 17, 2009 at 5:49 PM PDT

GREAT interview! And Hank, I completely agree with what you’re saying. It’s definitely not an end-all-be-all but shaking the hand that feeds you has wide reaching benefits.

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