USA Today recently reported on the remarkable story of repeated outbreaks of illness in school children associated with Del Rey flour tortillas.  Despite repeated problems, neither the company nor health officials took steps to remove the product from school lunch programs for an extended period of time.

Unfortunately, this glaring lack of concern for the safety of food in the school lunch program is nothing new.   In our work at Marler Clark, we have litigated cases arising out of an array of food safety failures.   The facts surrounding the outbreak of illnesses amongst students at the Laraway Elementary School in Joliet, Illinois in 2002 may well be the most shocking and unconscionable.

In 2001, the USDA supplied the State of Illinois with commodity bulk chicken for the National School Lunch Program (NSLP).  The chicken was processed into “tenders” by a commercial chicken producer and retailer.  Illinois also contracted with Lanter Company to store and deliver the tenders to schools in Illinois.  Lanter stored the tenders at a frozen food storage facility in St. Louis, Missouri, operated by Gateway Cold Storage, (Gateway).

On November 18, 2001, there was a large anhydrous ammonia leak at the Gateway facility.    At the time of the leak, a USDA compliance officer was on site, and aware of the leak.  According to the various health agencies that later became involved, the USDA did not notify any other agency of the leak.  Likewise, the USDA apparently took no steps to curtail or stop shipping of foods from the facility, despite the leak.  

In the days following the leak, and prior to notification of any health agency other than the USDA, Gateway shipped products to the Illinois State Board of Education (ISBE).  St. Louis Health officials appear to have first learned of the leak from cafeteria employees’ reports of harsh-smelling potato wedges.   

Because Gateway and Lanter continued shipping products involved in the ammonia leak, ISBE began receiving reports from schools that they had been shipped commodities with a strong ammonia odor on November 27, 2001.  The products that led to the complaints were potato wedges, with a product code of A174.  Amazingly, it was these products that were later confirmed to have been “directly below the ammonia leak.”  Despite the fact that these products had been directly exposed to the leak, Lanter and Gateway had gone ahead and shipped them to Illinois schools without notifying to the schools.  The potato wedges were part of more than 800,000 pounds of products that were shipped from the facility with the USDA present, and without involvement from any other health agency.  

After the ISBE learned of the contaminated potato wedges, it contacted Gateway and Lanter. Only at this point did Gateway and Lanter advise ISBE of the leak.   At this point, shipment of food exposed to the ammonia finally ceased.  
Believe it or not, this was not the end of the story, not even close.  Instead of disposing of the various foods exposed in the leak, the various health agencies involved, now including the FDA, came up with a plan to salvage much of the food involved.  

On December 6, 2001, a consulting firm sent an industrial hygienist to Gateway to take ambient samples of food products to determine if ammonia had saturated food product.   Still, it does not appear that any of the exposed chicken products were ever tested.  

The USDA refused to release most of its documents concerning the incident when requested through the Freedom of Information Act.  Still, it is clear that at some point in early 2002 Gateway and Lanter once again began shipping products from the St. Louis facility to schools in Illinois.  Complaints to the ISBE regarding the food began almost immediately.  

By January 2002, schools began complaining about beef patties that stunk of ammonia.  As schools continued to complain to the ISBE and to reject shipments from Lanter and Gateway, the USDA was apparently notified.  

Throughout the remainder of the school year, schools complained about various foods that arrived reeking of ammonia.  Individual schools were allowed to reject product and receive replacement – but no move was made to stop the shipments.  

The chicken tenders in question were not sent immediately after shipping re-commenced.  The boxes of chicken tenders had been so inundated with ammonia that the majority of the boxes had been saturated to the point that the ammonia smell could not be dissipated, or to the point that the boxes themselves were destroyed.  Nonetheless, the corporations, in conjunction with the USDA, pressed forward with a plan to salvage the product.

A letter from Gateway to ISBE dated February 21, 2002, stated that Gateway’s planned repackaging of the chicken product would take 2 days to 2 weeks.  There were 361 boxes of the chicken, each with 20-22 pounds of product in 5 individual bags.  According to the letter, “[Gateway has] contacted the FSIS [Food Safety Inspection Service, a branch of USDA] and the USDA and have made arrangements for an inspector to oversee our repackaging process.”  

For unknown reasons, the repackaging of the chicken did not take place for several more months.  There is significant confusion, in part due to the lack of USDA documents, as to the exact date of the re-packaging.  The repackaging of the chicken was apparently done by Lanter employees in late June or late July of 2002, purportedly under the supervision of the USDA St. Louis Branch.   

Before the 2002 school year had begun, and prior to the shipping of the chicken, at least two dozen schools complained of products with a strong ammonia smell.   Nevertheless, the shipments continued.  On August 15, 2002, the first day of deliveries for the 2002 school year, schools were again complaining of ammonia smell, at this time connected with beef patties.  

In October 2002, cafeteria workers at Illinois schools began complaining to ISBE about the chicken tenders either smelling or arriving in damaged or unfamiliar boxes.  On October 15, 2002, the Chicago Heights school rejected chicken due to ammonia smell.  On October 23 and 24, 2002, three more schools complained.  Still, none of the other schools that had received the products as part of their participation in USDA’s National School Lunch Program were notified or warned.

As schools continued to complain, it appears that no one tested the chicken, or made an effort to remove the remaining chicken from storage at other schools.  Rather, individual shipments were returned to Lanter.  

More than a month after all of these warnings, the chicken was still sitting at Laraway Elementary School, in Joliet, Illinois.   On November 25, the chicken tenders were served as part of the National School Lunch Program.  The tenders were also served at Oak Valley Elementary, also in Joliet, on that day.

Within minutes of ingesting the contaminated chicken, students and teachers began to fall ill.  The children’s illnesses were characterized by nausea, vomiting, headache, and burning sensations in the mouth, nose, and throat.  Students ran from their classrooms, vomiting.   The sudden outbreak led to eighteen ambulances bringing forty-four children to five local hospital emergency rooms.  As the ambulances, police and media personnel descended on the school, frightened students and teachers had no idea what was going on, or why the students had fallen ill.  Of course, it was later determined that the students were victims of ammonia poisoning.   
On December 2, 200
2, the USDA verified very high ammonia levels in leftover re-boxed chicken through its own laboratory analysis.  This verified testing conducted by an independent laboratory at the behest of IDPH.  The testing showed contamination of the tenders with ammonia at 500-2,000 parts per million (ppm).  The legal limit for ammonia is 15 ppm.   

Thankfully, it does not appear that any of the children affected suffered any permanent physical harm.  Acute ammonia poisoning, however, can be fatal.  Perhaps most remarkable about this situation was the large number of people and agencies who had multiple opportunities to prevent the outcome.  The recent article in USA Today only serves to emphasize that protection against similar future occurrences is still lacking.