Law Times

Law TiMes • May 3, 2010 An online resource 1.800.263.3269 Focus On PERSONAL INJURY LAW Governments slow to stop food-borne illness Despite high-profile lawsuits, lawyer says problem greater than it appears BY SUSAN HUGHES For Law Times L isteria appears to be on the rise again in Ontario following news of 14 re- ported cases already this year. In response, the Canadian Food Inspection Agency began investi- gating a possible link between the recent outbreak and deli meats from Siena Foods Ltd. while warning the public these prod- ucts could be contaminated with listeria monocytogenes. Following the outbreak, Sas- katchewan-based Merchant Law Group LLP launched a class ac- tion suit against Siena. Th e suit, seeking $1 million in general damages and $1 million in special damages, alleges Siena "failed to use suffi cient quality control" and was aware of the "potential toxic- ity of several products," thereby placing consumers at risk. One victim allegedly suff ered a stroke and heart attack after eat- ing poisoned meat. With just a year and a half having passed since 22 Canadians died in the Maple Leaf Foods crisis and with recent outbreaks from tainted spinach to peanut butter, some consum- ers are questioning how safe the country's food supply really is. Agriculture Minister Gerry Ritz defended the food-safety system following an audit by the U.S. Department of Agriculture's food safety and inspection service. Ritz insisted Canadian consum- ers receive the same rate of inspec- tions as products exported to the United States and defended the speed of hiring new inspectors to monitor meat processing plants. But the CFIA's meat inspec- tors, months after Sheila Weath- erill's report and its 57 recom- mendations to improve food safety, say the agency isn't moving quickly enough and that staff are still overworked. Professor Rick Holley, a food at scientist the University of Manitoba, says we don't have enough historical data to see if things have changed due to "spotty tracking" of food-borne illnesses generally. Canada only began tracking reportable diseases fi ve or six years ago. He notes listeria is grossly under-report- ed here and that the fatality rates are very high in the el- derly and those with compro- mised immune systems. "Th at is a trend that is not disputed, and it's only the tip of the iceberg. Listeria is more of a killer than the rest of food-borne illnesses, pro- portionately speaking." But since Health Canada doesn't track major causes of food-borne illnesses, it's hard to identify the source of the problem. In the United States, mean- while, the Centers for Disease Control and Prevention in At- lanta says every year 76 million people are sickened, 325,000 are hospitalized, and 5,000 die because the food they ate was tainted with a pathogen, bacte- ria or virus. Th at's a one-in-four chance of being poisoned. With much of our food imported from the United States, it's a fi gure that might disturb Canadians as well. In Seattle, Bill Marler of Marler Clark LLP runs a personal injury litigation practice that focuses on food-borne illnesses. He's regard- ed as a prominent food-poisoning authority in the United States, and President Barack Obama has been encouraged to appoint him as undersecretary for food safety. One of his notable cases was the landmark $15.6-million settlement for Brianne Kiner, the most seriously injured survivor of the Jack in the Box E. coli poi- soning. To date, he has secured more than $500 million in dam- ages for his clients. "I didn't start out to do food safety," says Marler. "I've been doing these cases since 1993 and spend probably 70 per cent of my time litigating cases and the other 30 travelling around the world giving speeches on why it's a bad idea to poison people. "I know it's true in Canada as well as in the United States: although there are a lot of peo- ple who get food poisoning ev- ery year, the reality is that most people never know what it was that made them sick. Th at's a a low priority in most coun- tries. Th ere's a recent study that just came out from the Pew Memorial Trust, and it's hard to know if it's accurate accounting or not, but I think it is, that the cost to the vic- tims is $152 billion a year. "I represent literally hun- bill Marler is a key U.S. lawyer involved in lawsuits related to food- borne illnesses, including the E. coli case against Jack in the box. failure on the part of health care and the government in co-ordi- nating appropriate surveillance in bacterial or viral outbreaks." Holley agrees, noting it's Health Canada's job to put sur- veillance programs in place. At the moment, Canada is largely using data from the United States. Holley also argues the hir- ing of more inspectors is a politi- cal move. "End-product sampling is not the way to go," he says. "I question the motivation — six samples a year from hundreds of products. I would really like to see those dollars spent on validating the food-safety systems that are supposed to be in place." He believes the key issue is to have inspectors interrogating food-safety systems and that hir- ing more inspectors is a political move on a marketing issue rather than a food-safety response. "It has no eff ect on the level of food safety whatsoever," he says. In Marler's view, while the problem is huge, the legal cases represent a very small number. Th e examples we tend to hear about are the severe ones like Maple Leaf, he says, adding it's almost a weekly occurrence that there is some kind of food recall. As to criticisms about over- worked food inspectors here, he says: "Th at wouldn't surprise me. Food safety for some reason gets dreds and hundreds of children who developed acute kidney failure from E. coli 157. Th ey may have hundreds of thou- sands of dollars in medical bills and they have risks of kidney complications in future that might require dialysis and a transplant. Recently, one of my clients was on the front page of Th e New York Times. She ate a hamburger and has $2 million in medical bills to date. Anoth- er woman I represent ate E. co- li-contaminated cookie dough and has been in the hospital since May of last year. Th e reality from a victim's perspective is that these are devastating illnesses." Marler says the costs to the supply chain are huge as well. From the farmer to the end user, costs from the Peanut Corpora- tion of America's salmonella out- break were estimated to run from $500 to $750 million. "Ultimately, you ask yourself, 'If all this stuff is that expensive, doesn't that create the incentive for companies to get it right?' Conceptually, it does, except for the fact that there are very few times where an illness is actually connected to the producer. Trac- ing is an issue. If everyone who was sickened got a stool culture, it would be easier for genetic fi n- gerprinting. Consumers would have a much better idea about what poisoned them. Right now, I turn away 85 to 90 per cent of the cases in my offi ce because we can't prove more likely than not it was one product versus another." Marler's offi ce runs like a health department with on-staff epidemiologists. "We look to see whether stool cultures were done so you know what bacteria or virus made someone sick. Th ese bugs have such wide variations in incubation periods, from a few hours to a few weeks. Ultimately, you need an expert in infectious diseases who is willing to say more likely than not this person got sick from this product with this bug. It's a pretty high standard, to be honest with you. A lot of people get turned away because you can't meet that burden of proof." But Marler says his fi rm hasn't done any cases in Canada "pri- marily because the only real func- tional way is the class action route. In my humble opinion, the value that the courts place on the vic- tims is so low in relative terms to the numbers here. So often, the attorneys' fees would eclipse what the victims get. "I wouldn't say Canada is any worse or better than the U.S. in the sense of food safety. I've been doing this a long time, and the vast majority of the food that has poisoned my clients has been produced in the United States. [With] food from other countries, in some respects, the standards for import are much higher." Holley agrees. "It goes right to the top to the owners, CEOs," he says. Although Marler says he's not overly impressed with the U.S. health system's capacity to track food-related illness, he hasn't heard a lot of positive things about the ability to track smaller outbreaks in Canada. "Certainly, Maple Leaf was too big to ignore. You guys obviously jumped all over that. I do think that one of the biggest criticisms that I have about food systems is the inability to track food-borne illnesses accurately." If things were diff erent, Mar- ler says there would be two re- sults. First, people could make conscious decisions to avoid food from companies with spotty records, thereby creating a disincentive to sloppy stan- dards. Secondly, tort lawsuits that increase companies' costs for poisoning people would be- come more common. "Th e other thing businesses fail to recognize is that the more accurate the CDC or Health Canada are in tracking these out- breaks, the more accurate they are in fi guring out what product poi- soned somebody." LT PAGE 9 Maybe you need a better mousetrap. Tel: 416.322.6111 Toll-free: 1.866.367.7648 www.doprocess.com Industry leader in legal software for real estate, corporate and estates for over a decade www.lawtimesnews.com

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