Lebensmittelsicherheit vor Gericht: Die rechtliche Seite der Kontamination   

Mikkel Svold (00:08):
Hello and welcome to Behind Clean Lines. In the food industry contamination outbreaks may just be the worst thing that can happen whatsoever. For the consumer obviously, it's a very serious business. It can lead to devastating costs of life. It can lead to lasting health issues. And for the company behind these outbreaks, it also means loss of business, it means loss of reputation, lawsuits, and much more like that. And that is why this entire podcast, not to say this episode, but the entire podcast, that's why this exists. Because we want to get to zero outbreaks. And it's also something that today's guest has been fighting for the good part of his career. So I'll say, what about 30 years? Welcome to you, Bill Marler.

Bill Marler (00:54):
Thank you very much. Welcome.

Mikkel Svold (00:57):
And I have you down as a foodborne illness lawyer and attorney, and I think many of the listeners, they will know you also from the Netflix documentary Poisoned. And I'm guessing that both Poisoned, but also this episode is for the listener to meet you here rather than in court.

Bill Marler (01:15):
Most people prefer that.

Mikkel Svold (01:17):
Yeah. Exactly. Exactly. So I want to start out by just asking you ... Someone got ill because of a food contamination, and then they contact you. Then what happens?

Bill Marler (01:32):
So I think I'm unique as a lawyer. We have a full staff of ... We have epidemiologists, doctors, nurses. We basically run our law firm a lot like a public health entity. We intake the cases. Many times we're interfacing with health departments to get the records that they may have had, getting stool cultures, medical records, taking food histories. In many respects, we redo what the public health has already done. And then the goal is to try to figure out whether or not we can prove legally, which is the standard, is more likely than not whether or not we can prove that the person's illness was caused by a particular food product. That's in a very general way how we do the first part. It also, depending upon the severity of the person's illness, being able to prove again, more likely than not, that the bacteria virus whatever was the cause of that illness and the cause of the symptoms and the cause of the problems that may or may not linger for years or decades.

Mikkel Svold (02:58):
What are you typically looking for?

Bill Marler (03:02):
In the illness part of it, or?

Mikkel Svold (03:06):
Just digging down into the case.

Bill Marler (03:09):
Well, the main thing we've really try to do is to be able to know that when I knock on someone's door and say, "Hey, here's a case," that there's really no question about the cause. It's important to me to be able to prove that ... The cases that we take are not cases that are not provable. And so that's important. It's important because I think that a lot of companies get claims from people, not because they're evil, but a lot of people don't know the science behind some of this. A lot of people call me and they think that the thing that they ate last was the thing that made them sick. And eventually you get the records and you say, "Well, actually it was this thing you ate three days ago." And they're like, "No, it wasn't. It couldn't have been." But whole genome sequencing of the bacteria links them to a particular food product. So my goal is to make sure that when I show up at someone's doorstep with a lawsuit that they know that it's serious, they know they're going to have to deal with it, and if they don't deal with it, we'll let a jury decide.

Mikkel Svold (04:32):
You say that you take the cases that are provable. Is that the case with the majority of these instances?

Bill Marler (04:42):
No. Not at all. I probably turn away 90% of the cases that contact our office.

Mikkel Svold (04:48):
Gotcha.

Bill Marler (04:48):
And if you look, you have to think about it too, just look at the statistics that the CDC publishes. 48 million Americans getting a foodborne illness every year, 135, 140,000 hospitalized, 3000 ish deaths. I see a fraction of those. Most outbreaks are never figured out. Even with the most sophisticated technologies, a lot of times outbreaks are difficult to figure out. Listeria has an incubation period of three to 70 days. What did you eat three days ago? I'm not sure I can-

Mikkel Svold (05:31):
It's even hard to tell, right?

Bill Marler (05:32):
Yeah. What did you eat 70 days ago?

Mikkel Svold (05:35):
No idea. Too much probably.

Bill Marler (05:38):
Yeah. And each bacteria has different incubation periods, different symptoms, so sometimes it's really very, very hard to figure these things out. We're really good at it. I can tell you I doubt very much there's another law firm in the world that has epidemiologists on staff, and so we take what we do incredibly serious.

Mikkel Svold (06:05):
Now you see a lot of cases and bearing in mind that this podcast is really intended not for the consumer. It's not those we try to educate. It's the food producers, it's the food machine manufacturers, it's the OEMs, it's all those kind of people. And so I'm curious, do you see any patterns in tracing back these different pathogens, these different illnesses? Do you trace them back and then they typically stem from the same step in production or processing?

Bill Marler (06:43):
It's a really good question. So let me give you how these outbreaks get started and figured out. These pathogens in salmonella, E. coli, listeria are reportable diseases. And if you're sick ... And again, not everybody who gets salmonella gets sick enough to go to the doctor, and so those people fall off. So you're not really tracking those people at all. So it's the people who are sick enough to go to the doctor and then the doctor has to be sophisticated enough to order a test and the test has to come back and on and on. But if there is a positive test for listeria, salmonella, E. coli by law, that lab hospital has to contact the health department and the health department reaches out to that person and finds out where they ate, where they go, what they do. They'll get credit card receipts, they'll get shopper cards, they'll get all that data to try to figure out what was the likely source of their illness. And they'll be focused in on the incubation period, which E. coli is three to four days, salmonella, 12 to 72 hours. They're going to be focused on that range.

(08:06):
And then that culture of the salmonella listeria sent to the state labs, each state in the US anyway, that will be sent to the state lab for genetic fingerprinting. And that's been a big game changer of whole genome sequencing. If you have a whole genome sequenced listeria case in Florida and one in New York and they're identical to each other, you're pretty confident that there's some link between the Florida and the New York person. You just don't know what it is yet. So once genetic fingerprinting is done, and that gets uploaded to an entity at CDC called PulseNet, PulseNet looks at all of these genetic fingerprints across time and across jurisdictions. And they can start to see potentially a pattern. And not all outbreaks are figured out. And again, like I said, and not all outbreaks are 10 or 20 people. But the way these things work, they're very reactive. Once you have an ill person and then they start collecting data, they start figuring out that there's a common denominator.

(09:20):
Once the CDC sees a pattern and they potentially see a common food item, usually depending upon the product ... If it's poultry, red meat, pork, it's FSIS, which is an arm of USDA, will do the trace back. If it's everything else, including fish but not catfish the FDA will do the trace back. And so that trace back will look at the guy in Florida, the guy in New York, they both ate X, and they start to trace it back to a particular processor. One of the things that they try to do is figure out what the root cause analysis, they want to figure out what the cause of that outbreak was.

(10:13):
We'll use example of Boar's Head. The Boar's head was linked back to a particular liverwurst product that was made in the Jarratt plant. And it's not absolutely certain how it happened, but it looks like that it was a contamination event in the line or the machinery of the Boar's Head facility. Sometimes it's difficult to figure that out for certainty. You have to use just potentially some common sense and experience. Most of the time food products don't test positive. Sometimes you just have solid epidemiological evidence that you've got 89 people sick and they all have the same genetic fingerprint, they all ate romaine lettuce, the romaine lettuce comes back to one processor, one grower, and by the time they're testing it, there's no product to test. That doesn't mean that you can't prove the case because not to be flipped, but most of the time the evidence has been consumed. So you're not really being able to have that smoking gun. But sometimes you do, and that's pretty damning.

Mikkel Svold (11:29):
But you also have a problem, don't you, that some of the contamination may be at farm level, so the contamination may happen there and then the chicken are brought in or the lettuce is brought in or whatever it is, the tomatoes are brought in to some kind of processing plant and then it's processed and then shipped on out to the shops. And in those steps, if you're not even counting the transport companies, there'll be at least the farm, the processor and the shop itself, like the supermarket where they could all bear the responsibility for dealing with this contaminated piece of food. So they could all be the one stopping that link. Where is the responsibility?

Bill Marler (12:25):
Good question. So in the US and frankly in several other countries around the world, the focus is on the manufacturer of the product. So if there's a ... And a manufacturer is what's as it relates to between the consumer and the manufacturer of the product, it's called strict product liability. So if someone ... Let's just use an example of bagged spinach. If and likely it does happen that the spinach was contaminated at the farm level by wild pig intrusion or-

Mikkel Svold (13:13):
Something in the water.

Bill Marler (13:14):
Yeah. Contaminated water. And then that goes to the facility and then is triple wash, chopped, bagged and shipped across the country, the manufacturer of that product who bagged it, shipped it, they're responsible for the damage to the consumer. That manufacturer, if they can can foist off their responsibility or at least what they wind up being obligated to pay my clients, they are able to do that against the farm that supplied the lettuce or the spinach and stuff. But again, they have the same level of responsibility that I have to be able to point the finger at the manufacturer. The manufacturer has to be able to point the finger at the supplier. Again, as you mentioned earlier in our conversation, a bag of leafy greens might have leafy greens from 20 suppliers. And how are you going to differentiate between one versus the other? And that becomes potentially a very complex, if not impossible thing to do.

(14:33):
So it really just underscores how important relationships between manufacturers and ingredient suppliers are. If that manufacturer has the best HACCP plan in the world and you've got a food safety culture that is robust and you're buying the best equipment and you're cleaning them properly, you can do all that. But if you don't have a solid relationship with your suppliers of lettuce and you don't know that supplier of lettuce is growing their lettuce within a stone's throw of a cattle feedlot or they're using untreated water or blah, blah, blah, you're completely vulnerable. And candidly, it's your fault.

Mikkel Svold (15:25):
Yeah. So you can do all the right things in your manufacturing facility in your factory, but if your intake of raw materials, so to say is contaminated, then you've still got the problem.

Bill Marler (15:40):
Yep.

Mikkel Svold (15:41):
And how should food manufacturers, how should they detect it? Should they test every single thing that come in? Because for instance, on the lettuce part, you have to test everything.

Bill Marler (15:59):
Yeah. You can't. You can do some level of scientifically based testing, but it's not foolproof. Just like an inspection is not foolproof. It's only you're there that day and you might see something or you might not, and the next day things might be perfect, or the next day things might be terrible. Same thing with contaminated food. What you have to do is you have to build in as much fail-safe as possible. You have to have a contract. Looking at it from the point of view of a manufacturer, if manufacturer needs a contract with the suppliers, they need to have a firm understanding of what inspections are done, what testing is done. And a lot of big retail outlets in the US have those requirements on facilities now and expect that farms are not growing leafy greens across the waterway or across the road from a cattle feedlot, that are not using untreated water and et cetera, et cetera. Those are the things that manufacturers are going to have to do to avoid these problems. And unfortunately, not all of them do. So that's what keeps me unfortunately in business.

Mikkel Svold (17:30):
And if we look into the actual factory, all the food producing equipment, all the treatment equipment, the processing stuff, what would you be focusing on there? Because contamination can happen obviously in the factory as well.

Bill Marler (17:47):
Sure. Yeah. So we've certainly seen many, many, many listeria outbreaks linked to manufacturing facilities. And the challenge for manufacturing facilities is that listeria is a ubiquitous bug. It comes in on people's shoes, it comes on people on palates. It comes into the facility. Once there, especially if it's a cool wet environment, it's really hard to get rid of it. I've had multiple examples of food manufacturers who's had problems with their equipment and problems with being able to clean their equipment properly. A lot of these outbreaks, especially the listeria, are super sporadic. And I'll give you an example of a case I just filed a lawsuit against. 44 people sickened 14 dead, 99% of the people were hospitalized, and it was linked to supplement shakes produced by one particular company. The first illness was in 2018, and then they came across over the course of those years, and then there was a bunch of cases in 2024, early 2025 that made it the ability for public health to go, "Oh, and now we know what it is."

Mikkel Svold (19:21):
And also to link together.

Bill Marler (19:22):
Yeah. And they were linked genetically, and they were all at the same genome sequence. So what that plant had, it had a resident strain of listeria that was there, and it would once in a while get into the food. It could be that there's a biofilm on a piece of equipment that then sometimes gets cleaned but not completely so to eliminate the bug. And then it grows enough biofilm that it sloughs off into the product and you have these sporadic illnesses. And again, those are the only illnesses that you catch. For each person that's listed there there's probably 10, 20 times that number of people that actually got sick and then were not counted for one reason or another.

Mikkel Svold (20:15):
And of course the manufacturer, they're liable for the damage. But how about now you talk about this one machine that may have this biofilm or whatever it is, this strain. The manufacturers or the machine builders, are they liable as well, or how far down can you actually go? Can you go all the way to OEM level?

Bill Marler (20:40):
Yeah. So you're asking a lawyer, if I can prove liability against all these people, and the answer is yes. But my job is to take care of my client, and the law allows and requires the manufacturer to be responsible. Let's use an example that it maybe is a little clearer. So an automobile, let's just say there's a part inside that automobile that's defective. There's a hole in a line somewhere that was not known by, it wasn't caught and certainly wasn't caught in the manufacture of the car and you're driving the car down the road and it explodes and kills your family. The manufacturer of that automobile is responsible. They can look at the manufacturer of the piece of equipment that caused the problem, same with the food manufacturer. Manufacturer could say, "Hey, look, this wouldn't have happened had this piece of machinery been better able to be cleaned." That's maybe not the best argument that a manufacturer has that the manufacturer of that piece of equipment should be responsible for that too but I've seen that happen.

(22:07):
One of the things I've been trying to convince manufacturers of leafy greens to do for a long time is to file suit against the cattle feedlots that are producing the E. coli that's contaminating the environment. If you want to solve a problem, you deal with it on a level that will to the best of your ability, eliminate the risk. We all know that pieces of equipment have changed over time based on risk. We're out here in the Pacific Northwest, it's lots of loggers in the old days, and I was at a weekend logger group thing that I just went to see people do their old logging things. And there are pieces of equipment that date back to the 1900s that you look at them and go, "Oh my God." That's just like a how to chop off your hand piece of equipment. And probably they did. And eventually over time they made guards and stops and things like that. So that's the great thing about human ingenuity. You try to think ahead of those things, but sometimes, especially listeria, it's a nasty little ubiquitous bug and it can find its way into all kinds of different cracks and crevices.

Mikkel Svold (23:42):
From your experience, do you find that the food professionals out there, they take this matter seriously also in their daily work and not only when you knock their door?

Bill Marler (23:57):
That's hard to say. People who are in the food safety profession that I bump into at conferences around the world where I speak, they're there for a reason. They're there to learn, they're there to get better at what they do. No one wants to see someone get sick or die, and especially as it relates to their product because it has all kinds of impacts. That being said, there's a lot of companies that have stopped thinking about food as food, and they think about it as a commodity. And they see situations where their product poisons somebody and a pesky lawyer shows up and they see that more as a PR problem than a moral problem. And many times the consumer is the afterthought. And that's where I step in and advocate for them.

Mikkel Svold (25:12):
What do you think ... Because I can easily see why this happens. In the companies it's not ill intention, it's just every day sets it up.

Bill Marler (25:27):
I'll give a great example-

Mikkel Svold (25:29):
Just another day at the office.

Bill Marler (25:31):
Yeah. I'll give you a great example. It's probably been, I don't know, 20 years ago, somebody sent me an email and said, "Hey, there's this food conference going on. It's lawyers for companies getting together for a conference." And so I went online, logged in. It was lawyers who defend food companies, not lawyers like me who sue them. So I filled out the form and gave my credit card and sent it in just to mess with them. The guy calls and goes, "Hey, we really don't really want you to come," and I said, "Yeah, I figured that." But he said, "The problem is that we're doing this in a state that we cannot discriminate against people who want to come to our conference. So if we tell you you can't come, we'll lose our ability to get continuing legal education credits. So how about if you be our keynote speaker instead?" I'm like, "That's great." So I went to this conference and I did my talk.

Mikkel Svold (26:34):
It's clever though. It's a clever trick.

Bill Marler (26:36):
Yeah. And so I did my talk, but then I stuck around and listened. And these were lawyers who work for some of the largest manufacturers in the country and they spent so much time talking about cases that I would never take. Like somebody showing up and saying that they found a rat in their chili but the rat really was put in after they opened the can. And lots of these kinds of things where people say, "Oh, I got sick from your product," but they don't test positive for bacteria. It was interesting that none of them were engaged in discussing situations like where I show up where I've got a whole genome sequence match, I got the kid that died, I got the parents who are devastated, or I got a kid that's going to have kidney transplants or somebody who's brain injured or can't walk. They don't want to talk about those. And that to me is you can understand that because you understand why people don't want to deal with that. They want to-

Mikkel Svold (27:49):
Hard. It hurts.

Bill Marler (27:50):
They want to avoid it. And so I get it. I get it. But there was an executive, and many of your listeners might know him, is a guy named Dave Theno. Dave was brought in to Jack in the Box after the outbreak happened as a director of food safety. And Dave had a habit. Anytime he'd make a tough food safety decision, a Jack in the Box, he would take a picture of this little girl named Lauren Rudolph, who was the first child that died in that outbreak. Cute little nine-year-old girl. And he would look at this and go, "What would Lauren want me to do?" Yeah, it's a little morbid, but hey, that's kind of a way to think about it.

(28:31):
In 30 years, 32 years of doing this, how many times has a head of FDA or head of USDA or head of the CDC actually sat down across the kitchen table from a family of who lost a child because of foodborne illness? And I can tell you that's pretty close to zero. People just don't want to deal with that in any meaningful way. And I think that does frankly stop the ability for companies to really pay attention to the things that matter. It's like those lawyers that were at that conference, if really what they think is everybody's a fraudster. Everybody's trying to make a buck, everyone's trying to make something up, if that's their viewpoint of things, it makes it pretty easy to ignore the real stuff. Yeah. I urge companies to really pay attention to that. We've got a lot of videos online where families legitimately got sick and died and lost loved ones and have damage that I think people ... They're free. People can look at them.

Mikkel Svold (29:52):
And it's just a good reminder of the professionals for the professionals out there working with food every day. Not that they should necessarily look at those videos and that image every day, but every once in a while revisit the fact that you're actually selling food to people and that people get sick from what they eat. Can get sick.

Bill Marler (30:14):
I probably do ... It's actually more than now than I did before COVID. But I probably do two to three speeches somewhere in the world every month. And essentially what I'm brought in to do is explain why it's a bad idea to poison your customers, both from a moral point of view ... And I certainly share stories of these kids. And then from a business point of view. And then frankly, the things that I've learned over 32 years about the companies that I haven't sued. What companies who I have sued, what they could have done or should have done differently. One thing I've learned in 32 years is that there's not been one outbreak that I've been involved in that the manufacturer, the grower, the shipper, there wasn't an opportunity to do something before the thing blew up in their face. There's always something that gives you a heads-up that something is not working right, but yet they ignore it.

Mikkel Svold (31:28):
But then what should manufacturers do? Where should they start tomorrow to avoid you on their hill step?

Bill Marler (31:39):
So it's become a cliche phrase, but it's about a food safety culture. And what that means to me ... And it means different things to the people who write about that. But to me it means having people in the right place at the right time, paying attention to things. I'll just give you a couple of examples. That the Jack in the Box, E. Coli outbreak was caused because both the meat was contaminated, but also Jack in the Box was ignoring the new cook temps because they wanted to keep their cook times at two minutes. And so that just was a disaster waiting to happen. They knew about the standards a year before the outbreak, but chose to ignore it. Now that's the thing that people should pay attention to. There was another case early in my career, the Odwalla E. coli outbreak linked to unpasteurized juice. Six months before the outbreak that killed a little kid and sickened about 80 people they tried to sell their juice to the US Army, and the Army said, "Your juice is not fit for human consumption." You would think that they would go, "Oh, well, maybe we should stop selling it to little kids and pregnant women." But they kept doing it because unpasteurized juice was their reason for being, and they just marched ahead.

(33:17):
If I went through every single case that I've been involved in, I can give you an example of where they weren't paying attention and they could. And that's really where I think you have to have the right people, the C-suite needs to pay attention to them and you need to be able to have people that want to look around the corner like, "Hey, what could happen to us?" Be proactive. Those are the companies that I never hear about.

(33:54):
I had to have a conversation with the mother of a four-year-old child who died, and that child had been linked genetically, epidemiologically to a food product that also had sickened other people, but the family was not told. Family was not told by public health. And so this woman thought, and her 20-year-old daughter thought that it was something that the 20-year-old had fed the child that made the child die. And it was actually something completely different that was manufactured by a different entity. So I called the family up and it was really hard, but it was, in some respects, it made their lives slightly better because they at least knew that their 20-year-old didn't kill their little brother. So my battles and me right now are government that's collapsing in public health that isn't supporting public health the way it should be. And frankly, public health not doing the job that they should do to protect consumers and to be transparent. RFK talks about radical transparency. I just want a little transparency, not radical. I just want people to be straightforward and honest and not make stuff up and be anti-science. We got work to do.

Mikkel Svold (35:21):
Over the course of your career in the last couple of decades-

Bill Marler (35:28):
That's hard to believe because I look so young. I know.

Mikkel Svold (35:31):
I know. I know. What I'm thinking is that we have of course seen a rise in awareness of safe food production. We see declining outbreaks, so it is getting better. That's my point. But-

Bill Marler (35:51):
I would say that the hard numbers of people who get sick and die in the US ... Focused on the US and frankly around the world, those numbers haven't changed much in 30 years. And there are more outbreaks now than there have been. They're smaller, and that's because of whole genome sequencing. They're catching outbreaks sooner, which is good. And there are more recalls than there used to be because the technology of knowing that so are on the right track. And I think ... I said this in the movie. I know that some of the stuff that I talk about is hard to swallow, so to speak, but from mid-'90s to early part of 2000, 90% of my law firm revenue is E. coli cases linked to hamburger. That's zero now. Zero. That's because the government and industry figured out a way to limit the amount of E. coli that wound up into ground beef. And the restaurant industry actually started cooking hamburgers thoroughly. We can do stuff, it's just a matter of will we do stuff and is the incentive there?

Mikkel Svold (37:19):
Are you worried about the future? Are you worried that we will enter a time where we'll see more outbreaks, more illnesses, or has the industry itself taken on the responsibility for real?

Bill Marler (37:33):
I obviously hope that we don't see more outbreaks and more illnesses. I really do. But when we've elected people and people have been appointed that don't believe in vaccines and don't believe in science and don't believe in global warming, and don't believe in education, when you have those folks running the show, it's going to impact things. Whether or not the American public collectively figures out that this is a bad idea, that we should go back to some form of rational thinking I certainly hope that's the case because I've got three daughters that are in their late 20s and early 30s. I certainly want them to have a positive life, but hey, I'm worried. I am very worried. So maybe it's the time for industry to step up and be responsible and be moral leaders and push the envelope.

Mikkel Svold (38:53):
Luckily, I've had the chance to talk to quite a few in the industry, also in the US, and they all preach the same as you do right now. So I feel pretty confident that people are ready to take up that token and then carry on doing better and better work and producing healthy foods. Our time is already up. It's been flying for me. So Bill Marler, thank you so much for joining the show. It was somewhat disturbing, but also I'm really grateful for the work that you do, and I'm also really grateful for what the results or what your cases are of resulting in namely changing the industry towards a better place. That's amazing.

Bill Marler (39:49):
I appreciate it. It's part of the doom and gloom. But I do think we've made progress. I just think we have the opportunity with the science that we have, with the technology that we have, with the education that we have, that we can continue to do better. That's what keeps me going to work every day. And so I'm committed to this at least as long as I'm able to do it. But I appreciate the time with you. I really do.

Mikkel Svold (40:25):
Thank you. Thank you so much. And to the listeners out there, if you have any questions or any ideas for topics or people who would also be interesting to talk to, reach out to us at podcast@ngi-global.com. That was a little bit of a tongue twister, so you'll get it again. I'll try podcast@ngi-global.com. So please do reach out to us if you have any questions. And of course, if you like this episode, go ahead and find some of the other episodes that are really, really exciting as well. And of course, share it with your colleagues and your friends if you like. I think with that, I just want to say once again, Bill Marler thank you so much for joining, and thank you so much for listening.

Bill Marler (41:10):
You bet. Take care. Thank you very much.

Mikkel Svold (41:11):
You too.

Bill Marler (41:12):
Bye-bye.