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Publisher’s Platform: Another E. coli Lesson Learned Hard

Opinion

In the fall of 1996, the very last of the Jack in the Box cases had resolved and the media attention surrounding the outbreak had faded away.  For most of the summer and fall I juggled being a lawyer and campaign finance chair for what would become Gary Locke’s successful run to become the first Chinese American Governor (He’s now America’s Ambassador to China).  I flirted – just for a moment – with a run for either a U.S. House or Senate seat.  Thankfully, my somewhat more rational side won out.

Turning back to the full-time practice of law, I never once for a moment thought I would still be doing food poisoning cases in 2013.  Then, a cluster of E. coli O157:H7 infections in the U.S. (California, 26 cases; Colorado, 5 cases; Washington, 29 cases) and British Columbia, Canada (10 cases), were linked to the consumption of a broadly distributed, commercially sold, highly regarded, unpasteurized apple juice sold by Odwalla, which was located in Half-moon Bay, California.

Twenty-five were hospitalized (mostly children), with at least 5 of outbreak victims developing hemolytic uremic syndrome (HUS).  A youngster in Colorado died.

The Odwalla juice implicated as the source of the E. coli O157:H7 outbreak was produced at a state-of-the-art facility in Dinuba, California. Once the outbreak was detected and additional case finding occurred, the product was recalled and a traceback investigation ensued.

E. coli O157:H7 was detected in apple juice samples and matched the strain of E. coli O157:H7 that had been isolated from ill persons. Three lots of apples could have been the source of the contamination. Deer had grazed in the orchards where two of the lots originated.

Within days of the outbreak and recall announcement, lawyers from Washington D.C. and Chicago contacted me.  The D.C. lawyer referred me the case of a business client’s child and the Chicago lawyer asked me to help his granddaughter.  Both children had developed HUS.  Other families contacted me from California and Washington.  A lawsuit was filed.  I was back in the E. coli O157:H7 business.

Odwalla went on a public relations offensive.  The company publicly apologized for the outbreak, offering to pay the children’s medical expenses (which it quietly reneged on) and vowing to be a leader in food safety.  That all sounded good, but the reality behind it was as empty as Odwalla’s shelves after the recall.

Odwalla hired a big San Francisco law firm (now defunct) filled with former attorneys from the U.S. Department of Justice.  In private meetings they vowed to bury me – the battle was on [1].

Legal discovery in Odwalla – written or by deposition – was a slow and hard-fought battle.  Every request for documents was met with denials and every person deposed “could not recall.”  But, then something happened that would change to course of the litigation and show once again that a lesson there to be learned was ignored.

One Saturday I came into the office and the message light on my phone was slowly blinking.  I listened to the message:

Mr. Marler, make sure you get the U.S. Army documents regarding Odwalla.

Click!  I listened to it again and again and again.  That Monday, we sent a Freedom of Information Act (FOIA) request to the Army and were stunned within days to receive a packet of documents showing that Odwalla had tried to sell its juice to the U.S. Army and had been rejected as an Army supplier several months before the E. coli O157:H7 outbreak that would sicken dozens and kill one child.

Despite the fact that we had asked for ALL inspection reports, Odwalla — or its lawyers — failed to provide them.  No matter.  In a letter from the Department of Defense Approved Sources Division provided through our FOIA request, the Army stated that Odwalla’s “plant sanitation program does not adequately assure product wholesomeness for military consumers.”

Not wholesome enough for the military, but OK to sell to children?

The judge in the case was not amused that these documents had not previously been turned over to us.  The judge allowed us to dig deeper – even into Odwalla’s hard drives.  Here is an email that I am sure they felt had been deleted – Yes, it was “subpoeanable!”

Two months before the outbreak Odwalla was considering – and then rejected – doing finished product pathogen testing.  The decision was made that it was better to be ignorant that safe.


[1] It was at this point I had the good sense to hire Denis Stearns, who had been an associate working on the defense of Jack in the Box.  Denis, now of-counsel to Marler Clark is a professor at Seattle University School of Law.

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