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Wisconsin Sizzlers Vindicated in State Supreme Court

After 12 long years, litigation stemming from one week in July 2000 when 150 customers of Sizzler Restaurants in Layton and Mayfair, Wisconsin were infected with E. coli O157:H7 and causing the death of three-year-old Brianna Kriefall is finally over.

Michael Martin, spokesman for Excel Corp, says the company is “relieved this litigation has concluded.” Excel was Sizzler’s meat supplier.

But Sizzler’s lawyer, Fred L. Gordon, says it could have been over years ago if only Excel would have stepped forward and accepted responsibility for the outbreak instead of digging in its corporate heels.

The irony is that Cargill-owned Excel could have saved millions by settling sooner, according to Gordon.

Gordon, the San Diego-based attorney for the two Sizzler franchises, has been representing restaurants implicated in outbreaks since the precedent-setting Jack-in-the-Box case.

After the 2000 Sizzler outbreak, plaintiffs’ lawyers filed lawsuits on behalf of the sickened customers, including a wrongful death suit on behalf of Brianna Kriefall. It would take until 2005 for all these cases to be settled, but Sizzler payed all plaintiffs’ medical bills over the year following the outbreak, which took a lot of pressure off of the victims.

In the wrongful death lawsuit, the Kriefall plaintiffs settled for $10.5 million, including $8.5 million from Excel and $2 million from Sizzler & E&B, Sizzler’s management company.

The other 138 plaintiffs were paid from a $3.5 million E&B insurance fund based on the severity of their injuries. Another $1 million went to the Kriefalls.

Money paid out to the victims, however, came ahead of the jury trial which assigned liability, so Excel wasn’t on or off the hook yet. Contaminated beef tips were only part of the story, as restaurant workers had allowed cross contamination with salad bar items including watermelon. Brianna Kriefall had eaten only watermelon.

It would be up to the jury to sort out how the businesses involved divided up the costs.

“Excel Corporation processed and distributed the contaminated meat that was the source of the E. coli pathogens,” the final Wisconsin Supreme Court opinion says.  “Excel’s role in the contamination was confirmed by tests of sealed packages of Excel’s tri-tip beef that had been shipped to Sizzler restaurants; also, Excel eventually stipulated to its meat having been the source of the E. coli.”

Gordon estimates that his side’s win on all five issues decided by the Wisconsin high court will cost Excel about $35 million, including their legal costs. He says the outbreak would have cost only a fraction of that had Excel taken responsibility from the start.

Instead of hearing Excel take responsibility for the tri-tips that ended up at the two Wisconsin Sizzlers, the jury heard about sanitation problems with human feces and urine inside the Fort Morgan, CO plant where the deadly meat originated.

Other problems included the plant’s kill speed – one animal every 12 seconds – and high employee turnover of immigrant workers.

USDA’s enforcement actions, prompted mainly by these sanitation problems, included some temporary plant closure time.

Those details likely helped the jury make its decision to assign 80 percent of the liability for the outbreak to Excel, and just 20 percent to E&B, the restaurant management company.

Sizzler USA, its local franchise owner, and the meat distribution company (Sysco) had no responsibility for the outbreak.

After outbreaks, restaurants need to remember they are going to have losses from both compensating their injured customers and for their own loss of business and reputations, says Gordon.

“They just choose to fight and fight and fight.”

There were some humorous moments, like when Sizzler found out that Excel had a paid epidemiologist on tap ready to testify that the pathogen could have been delivered by a cockroach riding in two different cars rather than from meat delivered by the same delivery truck.

New lawyers for Excel dropped the cockroach theory, but it made a good story for Gordon to tell the Supreme Court.

Another fact worth noting is that Excel sought U.S. Supreme Court review, but the review was denied. Victory for Gordon and Sizzlin at every level of the Wisconsin court system is where the story ends. Finally.

© Food Safety News
  • A superlative article explaining what occurred at the original Sizzlers/Kriefall/Excel litigation was authored by attorney Denis Stearns entitled “Preempting Food Safety: An Examination of USDA Rulemaking and Its E.coli O157:H7 Policy in Light of Estate of Kriefall ex rel. Kriefall v. Excel Corporation”.
    Mr. Stearns eruditely exposed how USDA-style HACCP has deregulated the meat industry’s largest players. The article also described how the meat industry argued that Wisconsin and all other states do not have the right to enact food safety laws which are more stringent than USDA regulations; this means that if USDA declares that E.coli on intact cuts such as Excel’s Tri-Tips are NOT adulterants, no state (including Wisconsin) can accuse Excel or any other packer of shipping adulterated meat into commerce.
    In essence, the meat industry argued in the litigation that consumers are responsible to (a) detect and (b) remove E.coli adulterants (or contaminants, or bugs, or whatever USDA desires to call them today)from their meat. Odd, because neither USDA nor the source originating packers were able to accomplish either (a) or (b).
    Anyway, Mr. Stearns article is a must read for anyone interesting in dissecting USDA-style HACCP, and fully comprehend the risks involved with meat consumption resulting from USDA’s deregulation of the largest packers. Is it possible Food Safety News could provide copies to those interested?
    I am pleased that the Supreme Court did assign 20% liability against Sizzler’s management company. After all, its employees were guilty of cross-contaminating salad bar items with E.coli from beef. It must share some liability.
    Perhaps USDA will learn from this Supreme Court decision that E.coli is a lethal killer even when “ONLY” residing on the exterior of intact cuts. Recent agency announcements might seem ? to indicate that USDA is slowly coming to its senses on what should be a common sense, no brainer issue. With Dr. Elisabeth Hagen and Administrator Al Almanza apparently liberated by the Oval Office to make changes benefitting public health, this intentional agency malfeasant policy may finally be reversed.
    John Munsell

  • A superlative article explaining what occurred at the original Sizzlers/Kriefall/Excel litigation was authored by attorney Denis Stearns entitled “Preempting Food Safety: An Examination of USDA Rulemaking and Its E.coli O157:H7 Policy in Light of Estate of Kriefall ex rel. Kriefall v. Excel Corporation”.
    Mr. Stearns eruditely exposed how USDA-style HACCP has deregulated the meat industry’s largest players. The article also described how the meat industry argued that Wisconsin and all other states do not have the right to enact food safety laws which are more stringent than USDA regulations; this means that if USDA declares that E.coli on intact cuts such as Excel’s Tri-Tips are NOT adulterants, no state (including Wisconsin) can accuse Excel or any other packer of shipping adulterated meat into commerce.
    In essence, the meat industry argued in the litigation that consumers are responsible to (a) detect and (b) remove E.coli adulterants (or contaminants, or bugs, or whatever USDA desires to call them today)from their meat. Odd, because neither USDA nor the source originating packers were able to accomplish either (a) or (b).
    Anyway, Mr. Stearns article is a must read for anyone interesting in dissecting USDA-style HACCP, and fully comprehend the risks involved with meat consumption resulting from USDA’s deregulation of the largest packers. Is it possible Food Safety News could provide copies to those interested?
    I am pleased that the Supreme Court did assign 20% liability against Sizzler’s management company. After all, its employees were guilty of cross-contaminating salad bar items with E.coli from beef. It must share some liability.
    Perhaps USDA will learn from this Supreme Court decision that E.coli is a lethal killer even when “ONLY” residing on the exterior of intact cuts. Recent agency announcements might seem ? to indicate that USDA is slowly coming to its senses on what should be a common sense, no brainer issue. With Dr. Elisabeth Hagen and Administrator Al Almanza apparently liberated by the Oval Office to make changes benefitting public health, this intentional agency malfeasant policy may finally be reversed.
    John Munsell