Remember the Minnesota dance instructor who was made paraplegic by eating a hamburger from Sam’s Club? Almost a decade after Stephanie Smith of Cold Spring, MN, and others were tragically damaged by eating those hamburgers, the courts may have finally decided where financial responsibility is going to rest. This week, the U.S. Court of Appeals for the 8th Circuit upheld the “compromised” verdict by a federal jury in Nebraska that ruled the Greater Omaha Packing Co. must share that responsibility to the tune of $9 million. Cargill Meat Solutions, which sued Greater Omaha, responded to the three-judge appellate court decision by saying “justice has been served.” Greater Omaha says the $9 million verdict is unfair and it might yet ask for review by all of the 8th Circuit’s judges. Greater Omaha, along with Beef Products Inc., Lone Star Beef Processors, and a foreign producer called Frigorifico PUL, provided beef used to make hamburger at Cargill’s meat grinding plant in Butler, WI, on Aug. 16, 2007. That’s when the poison hamburgers were produced. On Oct. 6 that year Cargill recalled 845,000 pounds of frozen ground beef made at the Butler plant. In 2015 a jury had to decide if beef from Greater Omaha that was used in the mix that day was contaminated, and if so what, if any, financial penalty should be imposed. Cargill had already paid out almost $25.3 million in nine settlements for personal injuries. Cargill’s recall and associated business costs were almost $550,000. Cargill also reached a settlement with Smith for an undisclosed amount in June 2010. After a three week jury trial last year, the U.S. District Court for Nebraska returned a general verdict for Cargill and awarded it $9 million in damages. Greater Omaha appealed, saying “the jury reached an impermissible compromise verdict…” That left it to the three-judge appeals panel to wade into the science of E. coli O157:H7, and tools like the “line list” used by the federal Centers for Disease Control and Prevention (CDC), which in this case tracked  people who were infected the rare strain of E. coli O157:H7 that made Smith and others so seriously ill. At both the trial and appellate court levels several aspects of the outbreak investigation came into question, including epidemiological work, pulsed-field gel electrophoresis (PFGE) technology with its DNA fingerprinting, and the involvement of state and federal agencies. All four companies providing Cargill with beef had submitted “certificates of analysis” showing samples of their beef had tested negative for E. coli O157:H7. The appeals court found “it is undisputed the raw materials caused the contamination.” The appeals panel also found Cargill discovered Greater Omaha was using a new sampling procedure that did not comply with the procedure Cargill required. Greater Omaha resumed using the previous procedure in October 2007. Cargill claims Greater Omaha experienced a spike in E. coli O157 positives. Cargill threatened to drop Greater Omaha as a supplier in December 2007. The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) issued a Notice of Intended Enforcement (NOIE) against Greater Omaha on Dec. 20, 2007. The NOIE covered the period from June 1, 2007, to Nov. 29, 2007, for failing to meet regulatory requirements “for pre-operational sanitation, on average, 48 percent of the time.” The FSIS notice found Greater Omaha had experienced a spike in E. coli O157 samples from mid-October through November 2007. Greater Omaha said a fan its kill floor, which was subsequently removed, was responsible for the spike. Greater Omaha disputed CDC findings The CDC put 54 cases from the outbreak on the “line list,” with 27 exposures traced to the Sam’s Club beef burger brand, known as American Chef’s Selection. Another 14 had no food history information and 13 had partial food history information. In three patients, from Hawaii, Missouri and New York, the epidemiological investigations revealed the Sam’s Club brand of beef patties had not been consumed, but the patients had eaten beef that came directly from Greater Omaha. “The Hawaii case patient was a seven-year old girl who had consumed a raw beef dish at a restaurant on Aug. 30, 2007,” Judge Roger Wollman writes. “She became ill four days later and was diagnosed with E. coli O157:H7. PFGE testing revealed that the Hawaiian patient had the same PFGE pattern as the Minnesota case patients, and further genetic sub typing, know as multiple locus variable-number tandem repeat analysis (MLVA), revealed that she also had the same MLVA results as the Minnesota case patients.” The Hawaiian restaurant’s California distributor confirmed that Greater Omaha was the source of the beef served to the young girl, adding that it did not use any of the other three suppliers — BPI, Lone Star or Frigorifico — used by Cargill. A 24-year-old Missouri man who was also stricken ate ground beef from a Schnucks grocery store that grinds beef in-house. The beef was suppled by Greater Omaha and not any of the other three Carill suppliers. Cargill’s expert witnesses at trial testified that it is likely the E. coli O157 bacteria “originated from the same source.” Greater Omaha attorneys tried unsuccessfully to get the Cargill experts excluded from testifying. Greater Omaha claimed that since not all 54 cases on the “line list” could be traced back to its product, such as two Ohio cases, the company cannot be found responsible for the outbreak. Cargill’s epidemiologists, however, said they were just not able to trace back all of the cases. The rare E. coli strain involved dated back to about 2004, suggesting multi-causes were possible for those on the list of 54. “That Greater Omaha’s August 9 or 10, 2007, beef production could not have caused the two Ohio patients’ E. coli O157:H7 infections does not invalidate the experts’ conclusion that the Greater Omaha production was the source of the E. coli O157:H7 bacteria found in the Cargill patties,” Judge Wollman added. (To sign up for a free subscription to Food Safety News, click here.)