Bill Marler
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Bill Marler

Attorney and food safety advocate Bill Marler discusses how his career has changed since the 1993 E. coli outbreak in Seattle and his ongoing fight for tough food-safety laws.

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About the Episode

Attorney and food safety advocate Bill Marler discusses how his career has changed since the 1993 E. coli outbreak in Seattle and his ongoing fight for tough food-safety laws.

Related:
Bill Marler's website

About Bill Marler

William "Bill" Marler, a nationally recognized personal injury lawyer and food safety advocate, is Managing Partner of Marler Clark, a Seattle-based law firm that specializes in food-borne illness cases.

In 1993, Marler represented a plaintiff in a case against Jack-in-the-Box regarding the E. coli outbreak, securing a $15.6 million settlement. He subsequently directed his practice toward food-borne illness, representing many more people affected by diseases such as E. coli, Hepatitis A, and Salmonella, and more. He has been involved in litigation relating to most of the large food-borne illness outbreaks in the United States, representing individuals against large companies such as Chili's, Kentucky Fried Chicken, Dole, and ConAgra.

Enrique Cerna:
Bill Marler, welcome to Conversations.

Bill Marler:
Thank you very much.

Enrique:
You didn't start out to become a lawyer who handled food safety cases. This is something that it came out of a major case obviously, in which we'll talk about, but it wasn't your direction initially.

Bill:
You know, it's really true. When I was in law school, where I really wanted to go, to be really honest with you, I wanted to go into politics. You know, as a grad. I was the youngest elected official in Pullman. I was elected at age 19 to the Pullman City Council where I served four years. So I originally sort of saw my law degree as sort of a springboard into politics. But you know, law school is expensive, I got married, you know, things started happening. And you know, I went off in a sort of slightly different direction.

Enrique:
1993. And really, that's where the direction started.

Bill:
Right.

Enrique:
And the Jack-in-the-Box case. So many people became ill because of tainted hamburger.

Bill:
Yeah.

Enrique:
E. coli.

Bill:
Uh huh.

Enrique:
And I think it probably opened the eyes of America on just how pervasive these types of problems are in our food today in America.

Bill:
I think that's absolutely correct. Jack-in-the-Box case happened at a very sort of odd time. You know, 24 hour cable channels were really just really starting. The Internet was still new. But all of a sudden, you had this epicenter of ill children, and I think for those of us who lived through it here, you know, Seattle was like a war zone. Children's Hospital was a war zone. They were flying in dialysis machines from other cities because we just didn't have the capacity. And I think it shocked people that the thing that everybody eats in America, that hamburger, could kill children and leave some with permanent, you know, irreversible injury.

Enrique:
Brianne Kiner, who really became, I hate to put it this way, but it was true, the poster child for this issue for the E. coli outbreak, for young children that were massively harmed by E. coli. Tell me about the relationship with that family, her mother, who I met during that time as a news reporter covering it, who spent days and countless times just trying to save her daughter.

Bill:
Right. You know, I think poster child is sort of the way it really was, though. And I remember even before the family hired me, I remember that they were counting the days that she was in a coma. And it reminded me a lot like the hostage crisis in Iran, where it was day X, day Y, and I remember, you know, that it was day 48 when she came out of the coma. And that family had been pressed pretty hard before she came out of that coma to take her off life support. And for completely understandable reasons. But the family hung on and hung on and hung on, and frankly, you know, I think everybody involved in the case from doctors to family, to their lawyer, was shocked that she woke up.

Enrique:
How did you become the lawyer for the family?

Bill:
Early on in this case, early on in the Jack-in-the-Box case, I sort of pushed myself to the front of the lawyers in Seattle. You know, I had only been out of law school for four years, I was, my hair was a lot darker, I was a lot thinner.

Enrique:
But you were younger and pushier?

Bill:
Well, I'm not sure I've changed that much. My hair color.
[LAUGHTER]

Enrique:
I'm sure the people in the food industry probably don't think you have.

Bill:
But you know, I just became, you know, obsessed with the case. I learned, I had a little child of my own, Morgan, she was just one. And I kept thinking to myself, it's like, you know, this could happen to my kid. And I think a lot of people, you know, in that kind of situation kind of looked at that. And I just sort of pushed myself to the front, you know, I offered to do all the work, I offered to, you know, do all the legal things.

Enrique:
You were with a different firm at that time.

Bill:
I was.

Enrique:
You have your own firm.

Bill:
But I worked hard and wound up doing, you know, catching the insurance company doing some bad things, and I, you know, wound up talking to the media a lot simply because there weren't a lot of people that could even say E. coli. And out of the blue, the Kiner family called me, you know, everybody in Seattle knew about Brianne Kiner, and certainly every lawyer knew about Brianne. And I was one of five lawyers that they interviewed. You know, frankly, the other four lawyers were far more qualified than I was, far more experienced, I probably would have hired them if my kid was in that spot. But the Kiners gave me the honor of, you know, representing their kid. And you know, that was a big deal.

Enrique:
Did you know much about E. coli? Did you know about the food industry much and how Jack-in-the-Box prepared their foods or how other industries handled food?

Bill:
No. You know, honestly, but no one did. You know, Jack-in-the-Box was the first major food-borne illness litigation that occurred in the United States. Doesn't say that there wasn't outbreaks before, some larger, much smaller, but the technology came together. E. coli 0157 had just become a reportable illness in some states. The CDC had just developed, along with people at the university of Washington, had just developed genetic fingerprinting for E. coli. So there was a lot of technology that all sort of came together at once. So even though there was a lot to learn, the great thing is, is that I've never been shy of, you know, admitting that I don't know things. And I went to the university of Washington Medical School library, walked in to the front desk, and this was, you know, pre-computer stuff, and I walked in, and I said, I need to know about E. coli. And she goes, oh, you must be involved in this Jack-in-the-Box case. And this very nice lady at the library, you know, got me articles, and I just sat in the library for a couple of days. And so I got to know a lot pretty quickly.

Enrique:
I guess I find it just shocking in a way that 1993.

Bill:
Right.

Enrique:
That in many respects, we didn't know a lot about E. coli.

Bill:
Right.

Enrique:
We didn't know a lot about these types of problems. Even in this case, with Jack-in-the-Box, probably the bigger thing was that how they cooked the meat.

Bill:
Right.

Enrique:
Which wasn't that really kind of the big thing?

Bill:
There was, I gave a speech a couple days ago to a group of food company in house lawyers, so their corporate counsel. And one of the things I told them was, I said, in every single food borne illness outbreak I've been involved in, in 20 years, every single one of them were a series of human decisions and/or human errors that caused the outbreak to occur. And in the Jack-in-the-Box case, you know, Washington state had changed its internal cook temperatures from hamburgers to 140°, which was the national standard, to 155°. And Washington state had informed all restaurants that that, in fact, is the new standard.

Enrique:
Were we different than other states on that?

Bill:
We were one of 50 states, and we had changed it. And the reason why we had a very, ah, health conscious health department and epidemiologist who had experience with E. coli and realized that 140° internal temperature in hamburger was not going to kill E. coli, you needed 155°. So they made that change, they disseminated that information. And during the course of discovery, we learned that Jack-in-the-Box corporate headquarters, in fact, knew that, but because they had restaurants in more than just Washington, they wanted to stick with 140°. Instead of thinking to themselves, hey, maybe we should just bring everybody up to this new standard. They chose to stick with the old standard because it worked with their two minute cook time. If they were going to do it to 155°, they had to move it to a two minute and 10 second cook time. So the reason I'm sitting here with you today is over 10 seconds. Had they changed that, we wouldn't be talking about this. And at the same time, they got E. coli tainted meat, but had they cooked it for another 10 seconds, you and I wouldn't be talking today.

Enrique:
Wasn't there like a seminal moment when this was discovered?

Bill:
It was. I had, ah, made a decision that there was a stockholders litigation that was going on simultaneously. So stockholders were angry at the Jack-in-the-Box corporation for, you know, having their stock price go from some $30 to some $two, understandably angry. And they had filed a lawsuit. And I thought to myself, they probably are asking for much of the same information that I am. So I moved to intervene in the case, into their case, and that was fought fairly vigorously by their lawyers for Jack-in-the-Box. But eventually, I got into that case, and then also got documents from that case that they hadn't provided to us, including the actual testing that they had done to see if they could do the internal temperatures correctly. They did the tests in their corporate kitchens down in San Diego. And all the documents were there. And so once that happened, you know, once that happened, the cases, not just mine, but all the cases involving all of the victims started resolving.

Enrique:
I just want to go back. So if Jack-in-the-Box had cooked that meat, even though it had already been tainted, a little bit longer, 10 seconds longer, a little hotter, it may not have ever...

Bill:
It wouldn't have happened. It just would not have happened. I mean seriously, the difference was 10 seconds.

Enrique:
Wow.

Bill:
And you know, that's one of the things I tell companies. This might sound kind of odd, but I get invited a lot to speak to companies all over the world now. I've been to China and Istanbul, and Australia, and London. With the idea of, you know, let me explain to you why it's a bad idea to poison your customers. And I talked to them about the horrors that go through, you know, for a child like Brianne or countless other families that I represented. But I always tell them, you know, we're talking about preventable problems here. We're talking about like making a 10 second decision. We're talking about, you know, visiting your supplier. We're talking about doing it sort of a checklist of things that are important. These are not really expensive, these are not, you know, difficult things to do. But it requires appropriate mind set. And appropriate culture of food safety. And that's the thing that I talked to these people about all the time.

Enrique:
Why in America today, after Jack-in-the-Box, does this still happen? Just before I came in here...

Bill:
Like why do I still have a job?

Enrique:
Yeah. And let's face it, you had gone from working for a firm to then out of Jack-in-the-Box, eventually creating your own firm, Marler Clark.

Bill:
Right.

Enrique:
Went into business. Weren't you some of the people that came to work with you had opposed you?

Bill:
Yep, yep.

Enrique:
You're making, you make a pretty good living.

Bill:
I do, I do.

Enrique:
A pretty good living. And I'm sure that people say, well, this is why he's doing this, making a lot of money. But I know this also became a passion for you.

Bill:
Uh huh. It is. I spend about half my time in the public more trying to put myself out of business, testifying in front of congress. Last year, I spent a half a million dollars testing retail hamburger to find different kinds of pathogenic E. coli in there. There's other things to worry about. And then petitioning the federal government to ban them, which they have, and they're going to have, starting March of next year, they'll be banned just like E. coli is from hamburgers. So you know, yes, I make a living over suing people who have been, you know, horribly injured. But I feel, you know, really strongly about giving back, you know, in what I do. So I'm pretty comfortable about that. But your bigger question is, why do we still have this here?

Enrique:
Right. Why?

Bill:
And I think it's a, it is a complex issue. One is you're fighting an enemy, bacteria, that we've been fighting in one form or another for, you know, our entire existence as a human race. And these bugs, you know, evolve much faster than we do. And they evolved in ways that we have sometimes no understanding of how they're going to go. Antibiotic resistant salmonella, antibiotic resistant Acinetobacter. How did E. coli switch genes with Shigella bacteria and become a toxin-producing bacteria? All of those things happened so fast that it really requires, you know, us to be, to always be vigilant. And when they're food borne, it becomes really problematic. Not just, you know, the big producers causing problems or the small producers, but these things are environmentally, you know, contaminants. And you've got to pay attention to how to produce food safely, whether you're a small producer or a large producer.

Enrique:
What about government in all of this? I know that in 2009, 2010, you were testifying before congress trying to get some changes made there. What happened and because there was legislation passed?

Bill:
There was.

Enrique:
But why hasn't it worked?

Bill:
Well, food safety is sort of the step child of, you know, of sort of regulation. You know, considering that 48 million Americans are sickened by food every year, 3,000 die, 125,000 are hospitalized, and those people who are hospitalized are people who, you know, can have hundreds of millions of dollars total of medical expenses. I had one client who was hospitalized for two years from E. coli tainted cookie dough, $6.5 million in medical expenses.

Enrique:
Whoa.

Bill:
And we all heard about the recent Listeria outbreak linked to cantaloupe.

Enrique:
Right.

Bill:
That was news three, four months ago. But there are people still in ICU who are sick from that. And may well be in rehab centers for the rest of their lives with hundreds of thousands of dollars, if not millions of dollars in medical expenses. So it's a, the pew memorial trust estimates that yearly, yearly, food borne illness costs Americans $152 billion a year, lost wages, lost time, recall costs, all of that. It's a big number. But we can't seem to get our head around the fact that industry and consumers and government have a role to play together to help prevent this. And although we did pass legislation, the most sweeping legislation in 80 years, we now haven't funded it. So, you know, it's great legislation, but it's on a shelf sitting there and it's not funded.

Enrique:
Because they don't have the money to do it?

Bill:
Well, they don't have, well, they don't have the will to find the money to, because I think it's one of those sort of things where we seem to always be a little bit, you know, penny wise and pound foolish. You know, I think the amount of money that companies spend on food safety, there's all these studies about, you know, consumers are willing to pay more money for safer food. Consumers will pay more money for safer food, they will. And I think that's one of those things that I think, you know, government and industry need to pay attention to.

Enrique:
Is industry still fighting these things?

Bill:
Some, some in the industry are. But I think that there are a lot of industries for a myriad of reasons have sort of stepped up to the plate and, you know, I think part of it is that businesses are people too, or at least there are people in those businesses, and so they see Brianne Kiner, they see Stephanie Smith, who was a client of mine, who wound up on the front page of the New York Times. They see those people and they go, I understand that. Of course, they have businesses to run. But I think the thing that has been, the thing that has really brought businesses to the table is the recall costs. And the loss in business and the loss in reputation, the loss in brand. There was an outbreak of salmonella in a peanut product, came product, came from Georgia, that went into 4,000 different products. And the estimated loss to businesses was over a billion dollars, for one company, one outbreak, that killed nine people, sickened 700. So businesses started to see that, you know, they're only as a business entity is only as good as their weakest link. You know, there was a recent article today about the cantaloupe industry. Now, this cantaloupe outbreak has killed 29, sickened 139, but it was one farmer in Colorado. But the entire cantaloupe industry has been thrown under the bus. So industry is starting to pay attention to that. So they were actually supportive of this legislation.

Enrique:
I want to go back to, you mentioned that you do a lot of speaking. And I know you go to colleges and actually talk to law schools or even doing some types of courses that they've talked to you about maybe even teaching at some point.

Bill:
Right.

Enrique:
I understand, was it the national meat association that you spoke at?

Bill:
A couple times, yeah.

Enrique:
But tell me about the time that you went to go speak to them and the reaction that you got.

Bill:
Well, this is probably, oh, three or four years ago. I tend to get invited back to some of these groups, probably like on an every four or five or six year basis. They sort of struggle to invite me, and then they invite me, and then they can't stand it, so they wait another five years until people forget. But I had been invited again, and there had been a couple speakers before, and there were several hundred people in the audience, and there was a speaker before who had invented some kind of ham product. And he got an award for inventing this ham, and everybody clapped. And then they invited me to come to the stage, and they said what I did. But it was complete silence. I mean it was like they had sent out a memo, like don't clap for him. And so I stood up there for just that kind of awkward moment where they knew that I knew, and then I said, and now you may clap. And there was... They were good. You know, most people, most people, whether they're in industry, you know, or in government, they're trying to do the right thing. And you know, what I try to do is not give them an opportunity to pigeonhole me as that ambulance chasing lawyer. And if I come to them and go, look, you know, you can avoid this problem by doing these things. And look at how this outbreak happened, look how that outbreak happened. 10 seconds. Think about it. 10 seconds. 10 seconds and I wouldn't be standing here.

Enrique:
Right.

Bill:
So 10 seconds and you wouldn't have to deal with me at all. So those are I think really powerful messages to send to businesses. And I think they are slowly getting it.

Enrique:
Do you eat hamburgers?

Bill:
I don't, I don't. And my kids, well, put it this way, my kids are teenagers now. To my knowledge, they haven't eaten a hamburger. But well, they're teenagers.

Enrique:
Hot dogs?

Bill:
Nope, nope. Maybe better this. I'll tell you the things that I definitely don't eat. Hamburgers, deli meat, sprouts, raw milk, unpasteurized cheeses.

Enrique:
Why sprouts?

Bill:
Sprouts are probably, I'm going to, somebody's going to get mad at me for this. Sprouts in my view are one of the more dangerous food products that are out there, primarily because there's no kill step. And many times, the seeds become contaminated, and even the best sprouter can contaminate the seeds, contaminate all of the other sprouts, the largest and most deadly food borne illness outbreaks in the world have been linked to sprouts.

Enrique:
Wow.

Bill:
So sprouts are something I make sure that don't wind up on my sandwiches.

Enrique:
Raw milk, you said.

Bill:
You know, raw milk is one of those things that people have a passion for. But there's, frankly, no scientific evidence to support it. But it's also highly risky. We're having an outbreak here and there's another one going on in California. And unpasteurized juices. Again, things that don't have a kill step to it. You know, become really problematic.

Enrique:
What about eggs?

Bill:
Eggs are getting better. There's this new thing called the egg roll that has been finally instituted, and you're going to start to see a lot more of these big egg farms shut down. And McDonald's, although ostensibly it was for, you know, mistreating of the animals. Really, what it was about was salmonella in the facility.

Enrique:
What about people that grow their own?

Bill:
Um, you know, it's one of those sort of things where, you know, 90% of the outbreaks that I've been involved in involve mass produced food. Partly it is that you have a very small margin of error, and because their outbreaks are bigger, they tend to get caught. I mean that's just a reality. I think the smaller the producer, the more, the smaller your backyard, the less likely it is that you're going to have contamination. And if you do poison somebody, it's going to be yourself. It doesn't mean that you can sort of ignore biology or ignore bugs, you still have to handle food appropriately. But your risks of multiple handling and multiple exposures are less.

Enrique:
Want to mention that you collaborated with Jeff Benedict, who's a best selling author, about the book: "Poisons." It's a very good read, particularly you learn all the details of the Jack-in-the-Box situation, and just the concerns about food safety today.

Bill:
Right.

Enrique:
Bill Marler, always fascinating.

Bill:
Yeah. Thank you very much, I enjoyed it.

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