I know lawyers suffer from an image problem. Most people think we spend our weekend on fancy golf courses or driving jet boats around tropical isles. I actually like driving jet boats at high speed. I had one once. But I don’t have any time anymore, especially in the aftermath of each of these continued outbreaks.

So what did I spend my weekend doing? Writing letters to the people my clients have or may sue is always part of the job. I thought it would be good to share my work to give Food Safety News readers a better understanding of how we approach obtaining justice for victims, and other, of foodborne illness.
The letter that follows is to Mr. Townsend at Townsend Farms in Oregon, the company that produced the frozen berry product that gave their consumers the troubling liver disease we call hepatitis A.

Dear Mr. Townsend:

As you are aware, the Centers for Disease Control and Prevention (CDC) has linked 79 hepatitis A illnesses in 8 states to the consumption of Townsend Farms Frozen Organic Antioxidant Blend products. This number is expected to continue to rise. The Marler Clark law firm represents over two dozen of these people, and their families, who are suffering from, or recovering from, their acute hepatitis A illnesses. Two individual personal injury lawsuits have been filed – in California and Arizona to date. We expect to file more. Costco indicates that it sold at least 330,000 bags of your product across the country. In addition, Harris Teeter stores sold your product under a different label but have so far not been linked to hepatitis A illnesses. Since the hepatitis A outbreak was announced on May 31, 2013, and the recall of your product was announced on June 3, 2013, it is likely that tens of thousands of individuals have either received blood tests to determine whether they were infected by hepatitis A, or received hepatitis A vaccination or immune globulin injections. On behalf of several putative class representatives, Marler Clark has filed, or will file, class actions in Arizona, California, Colorado, Hawaii, Idaho, New Mexico, Nevada, Utah, and Washington. These class actions seek to recover damages on behalf of people who have had blood testing, or received vaccinations or injections to prevent the onset of symptoms.  We intend to file a similar class action in Oregon, under theories including strict product liability, breach of express and implied warranties, negligence and negligence per se. Before filing the enclosed complaint, however, on behalf of putative class representatives in Oregon, and pursuant to the notice requirement of Civil Rule 32H, specifically sections 1(A) and 1(B), we are required to send you this notification letter to demand relief before filing suit. We ask that Townsend Farms do the following:

  1. Admit that Townsend Farms Frozen Organic Antioxidant Blend Products are the source of the hepatitis A outbreak reported by the CDC;
  2. Pay the amount of any bill or cost charged to any person who has had blood tested for the presence of hepatitis A, or to any person who has been vaccinated or received an immune globulin injection,due to his or her consumption of your product and/or exposure to another person who consumed your product.  Also, to the same group of people, pay the amount of all other general, special, incidental and consequential damages incurred as the direct and proximate result of their consumption of your product;
  3. Reimburse Costco for any and all costs expended by it to ensure that people exposed to your product, either directly or secondarily, have received necessary blood testing to determine the presence of hepatitis A virus, or received vaccination or immune globulin injection;
  4. Reimburse any state, local, or federal health organization for all costs expended to ensure that people exposed to your product, either directly or secondarily, have received necessary blood testing to determine the presence of hepatitis A virus, or received vaccination or immune globulin injection;
  5. Reimburse any state, local, or federal health organization for all costs expended in the investigation of the hepatitis A outbreak;
  6. Revise the labeling on the Townsend Farms Frozen Organic Antioxidant Blend Products to more clearly inform the consumer that it may contain component parts that are not grown in the United States, and;
  7. Donate $50,000 to Stop Foodborne Illness to assist in food safety education.

We look forward to your prompt response.  

  • Tom

    How about waiting six month to see how Townsend Farms handles this case? It would appear they have been sued in just a few days. Townsend Farm certainly had no intent to harm and we do not know enough to say there was gross neglect.

    • Six months from now the evidence trail is six months older, and the people who are sick, are six months poorer from medical and other expenses.

      People have been getting Hepatitis A by eating this food. They’re not getting Hepatitis A because of living hard, or boozing all night, or indulging in some other unhealthy activity. They ate organic frozen berries. They ate the berries specifically for their health. They ate the berries fully trusting in the product—enough so to put it in their mouths.

      Exactly what about this isn’t negligent?

  • mjv64

    Six months from now after all these class actions, they might fill for bankruptcy. Can they sue that company or farm in Turkey for the contaminated pomegranate seeds?

  • Husn_a

    Hilarious Mr Marler:-)

    Now I know why people freak out when I mention food safety…lol

  • Schratboy

    Eat local and in-season only.

  • Mike_Mychajlonka_PhD

    In an, admittedly, not so very recent paper [Clinical Infectious Diseases 2004; 38:705–15] Anthony Fiore of CDC’s Division of Viral Hepatitis wroke on the subject of Hepatitis transmitted in food. He makes the point that analyzing for the causative virus in food is both difficult and expensive. The current word from FDA’s “Bad Bug Book” is that “No satisfactory method is presently available for routine analysis of food.” So, what is a HACCP Plan to do if the necessary technology lags behind real needs? What can be done beyond vaccinating the help? Should a lapse in vaccination be construed as negligence?

  • toolate

    A well written letter with appropriate demands imo. As opposed to the recall notice that Townsend scripted, “Townsend Farms, Inc. of Fairview, Oregon, has announced that it is voluntarily recalling certain lots of its frozen Organic Antioxidant Blend, out of an abundance of caution…” and “our decision is based on 6 generations of family values…”.
    Yes, that and the prospect that it might well be the sixth and final I might add.
    It would be interesting to learn of the cost-benefit analysis that was done to purchase pomegranates from Turkey. Did it factor in the possibly increased risk of Hepatitis A?