Food Poison Journal - Food poisoning outbreaks and litigation: surveillance and analysis

To recall or not recall is normally not the question.  Typically, when commentators take issue with the manner in which recalls are conducted, it is that the recall was done in a stealthy manner--e.g. on a Friday night when most people aren't paying attention; on Christmas Eve; or without an announcement to the public in the FDA's recall database. 

The question of recall after the Jimmy Johns sprouts E. coli outbreak may, or may not, be a little different.  That depends on whether the seeds, which were obviously (i.e. epidemiologically) the problem, have actually been recalled.  The answer to that question is either "no, they haven't been," or "yes, they have been, but neither the 14 people ill in Iowa, Michigan, Missouri, Kansas, Wisconsin and Arkansas are entitled to know about it, nor is the public generally."

Frankly, either response is poor.  If the seeds haven't been recalled, the company's (and industry's) reasoning is surely that the supplier knew where all the seeds went and received 100% response to an immediate and timely request from the supplier to return or destroy the contaminated seed.  If the seeds have been recalled, then it is another one of those "stealthy recalls" that have recently come under fire at Food Safety News and by Phyllis Entis (See James Andrews article today titled "When should recalls be made public?).  I have monitored the FDA recall database daily since this outbreak was announced and have seen nothing.

These are not good justifications for either the (1) inaction or (2) stealthy action that has taken place in this outbreak.  People have known things to be true in the past that weren't, and when dealing with a pathogen as lethal as shiga-toxin producing E. coli, it is a risky proposition to assume that sprouters and suppliers have the internal traceability to guarantee that each seed from a contaminated lot has been properly disposed of, even if its an honestly held belief.  Or, just maybe, the supplier sold this lot of seed to only the sprouters known to have produced the sprouts involved in this outbreak. 

Interested parties have all kinds of disagreements on the recall system generally, but one thing is clear.  This is a Class I recall situation.  There is a serious public health threat posed by this product (remember, Michigan was only able to link its 2, and possibly 7, illnesses to the outbreak on Friday, Februaryt 24, almost 10 days after the CDC's original announcement; and even the CDC's outbreak summary indicates that not all of the bodies may have been counted yet.) 

CDC is not naming companies who cause national outbreaks; FDA is not timely publishing recalls; California is not issuing reports anymore on major produce-related outbreaks; and etc., etc., etc.  Every time a new twist on this trend comes up, there are new explanations for why we, the customers, don't get to know about what's going on.  Has anybody in the relevant positions of power (i.e. public health officials and the industry, who know all the details about these situations) ever round-tabled the concept of full and timely public disclosure?  The media vortex that surrounded the spinach crisis in 2006, and probably the cantaloupe crisis in 2011, only helped to make the industry more accountable.  I doubt that more secrecy will have the same beneficial effect. 

Matt Bewig

Bowing to industry lobbying, the Obama administration has proposed eliminating a program that tests fresh produce for food-borne diseases like the listeria outbreak in cantaloupe that killed 36 people in 2011. The USDA microbiological data program (MDP), created by the administration of President George W. Bush in 2001, collects fresh produce samples from distribution centers and terminal markets across the United States and tests them for pathogens. Specifically, MDP tests high-risk produce like alfalfa sprouts, cilantro, green onions, peppers, tomatoes, spinach, and other leafy greens, every one of which has caused a product recall or a food-borne illness outbreak, some of them lethal. The Obama administration has proposed defunding the program. As the program cost is barely $5 million annually, the justification for the cut is not budgetary.

In fact, food industry lobbyists like the United Fresh Produce Association, which spends more than $1 million a year on lobbying, have never liked the program, contending that it needlessly duplicates other government efforts, unfairly burdens growers, may yield false positive test results, and causes unnecessary food recalls. Yet the FDA, which generally has jurisdiction over food safety, lacks the budget to conduct anything more than limited inspections. The industry’s plan is for it to regulate itself via privately contracted testing, a practice the FDA recently termed “an inherent conflict of interest,” and which failed to prevent the deadly Listeria outbreak last year.

When challenged at a House of Representatives appropriations hearing, Agriculture Secretary Tom Vilsack gave weak excuses for eliminating MDP. He said that its mission was not appropriate to agency of which it is a part, the Agricultural Marketing Service (AMS). The Obama budget says the program “is not central to the core mission of AMS, which is to facilitate the competitive and efficient marketing of agricultural products.”

Taco Bell - “Mexican-style fast-food restaurant chain – Chain A” - Salmonella Outbreak

A 22-year-old Oklahoma woman contracted salmonella after eating at Taco Bell has sued the fast-food company. Leah Smith became sick while attending a University of Oklahoma football game last fall, two days after eating at a Taco Bell in Norman. She was sick for two weeks.

The Centers for Disease Control said last month that 16 people in Oklahoma are among 68 people who were infected with salmonella after eating at a “Mexican-style fast-food restaurant chain – Chain A.”

Jimmy John’s - E. coli O26 Outbreak

An Altoona woman has become the second Iowan to sue Jimmy John's sandwich chain over an outbreak of foodborne illness linked to sprouts. Mollie Horton, 23, filed the lawsuit Thursday in Polk County District Court. She fell ill December 26, days after eating a sandwich from a Jimmy John's party platter at a family gathering. Horton's lawsuit said she removed the sprouts from the sandwich but nonetheless caught E. coli O26 poisoning that caused her to be hospitalized for three days and sick for weeks. Testing showed her illness was the result of the strain linked to the outbreak, which sickened 14 people in five states. Federal authorities said last week that five of the 12 patients were from Iowa. Two and perhaps as many seven are sick in Michigan

A Jimmy John's spokeswoman declined to comment. But Horton's attorney, Bill Marler, says the Illinois-based chain has finally pulled sprouts from its menu.

A Polk County woman sickened for weeks after eating tainted sprouts has filed a lawsuit accusing sandwich chain Jimmy John’s of serving unsafe food. On Tuesday, Heather Tuttle of Clive filed a separate lawsuit in Des Moines seeking damages for pain and suffering. Tuttle was diagnosed with E. coli O26 poisoning after eating a turkey sandwich from a West Des Moines Jimmy John’s in West Des Moines last month. Her lawsuit describes weeks of excruciating cramps and diarrhea that required medical treatment.

The Michigan Department of Community Health and Agriculture announced 2, and maybe a total of 7, E. coli illnesses in the Jimmy Johns sprouts E. coli outbreak.  The CDC updated its numbers today too in the national outbreak, bringing the confirmed case count to 14 in 6 states (2 in Michigan, 5 in Iowa, 3 in Missouri, 2 in Kansas, and 1 each in Arkansas and Wisconsin). 

Two of the Michigan cases were hospitalized.  No word whether either of those E. coli victims developed hemolytic uremic syndrome, HUS.  The Michigan cases are from Wayne, Oakland, Macomb, Washtenaw and Kent counties. 

These counties, in fact the entire state of Michigan, is no stranger to E. coli outbreaks, owing in large part to great public health surveillance of communicable disease.  Here are a few past E. coli outbreaks that we at Marler Clark have been involved in:

• DeFranco and Sons In Shell Hazelnuts 2010 (Michigan, Minnesota, Wisconsin)
• National Steak and Poultry Beef E. coli Outbreak 2009 (Michigan and other states)
• Nebraska Beef LTD and Kroger ground beef E. coli Outbreak 2008 (Michigan and other states)
• Dole Baby Spinach E. coli Outbreak 2006 (national, including Michigan)
• Con Agra and Kroger ground beef E. coli Outbreak (2002) (Michigan and other states)
• McDonalds Restaurant Hamburgers 1982 (Michigan and Oregon)

As we at Food Poison Journal wondered this morning, "Are there more than 12 victims of the Jimmy Johns sprouts E. coli outbreak?"  The answer appears to be a resounding yes.  The Michigan Departments of Community Health and Agriculture issued the following public health alert, which suggests that there are at least 2 more, and likely at least 7 more cases linked to the Jimmy Johns sprouts E. coli O26 outbreak (that is 14 confirmed, and possibly 19, illnesses linked to the Jimmy Johns E. coli outbreak):

The Michigan departments of Community Health (MDCH) and Agriculture and Rural Development (MDARD) are issuing a public health alert regarding illness shiga toxin producing Escherichia coli (E. coli) from infections among people who have reported raw clover sprouts consumption in mid and southeast Michigan. At this time, MDCH is recommending that people avoid consumption of raw clover sprouts until further information about the origin of the contaminated sprouts is available.

Michigan currently has two confirmed E. coli O26 cases and five suspect cases. The illness onset dates range from February 6 - 12, 2012. All seven people reported consumption of raw sprouts at sandwich shops in mid and southeast Michigan. Of the seven cases, there have been two known hospitalizations. Those affected range in age from 19-50.

MDCH is working closely with local health departments, MDARD, the Centers for Disease Control and Prevention (CDC), and the U.S. Food and Drug Administration (FDA) to determine the source of the sprouts. The two confirmed Michigan cases have the same genetic fingerprint as cases reported earlier this month in a CDC-led investigation in other states that was linked to raw clover sprouts consumption at Jimmy John's restaurants (http://www.cdc.gov/ecoli/2012/O26-02-12/index.html).

Sprouts are the germinating form of seeds and beans and are frequently eaten raw in sandwiches and salads. Past sprout-related outbreaks of foodborne illness have been linked to seeds contaminated by animal manure in the field, during storage, or as a result of poor hygienic practices in the production of sprouts. In addition, the warm and humid conditions required to grow sprouts are ideal for the rapid growth of bacteria.

E. coli O26 is a Shiga toxin-producing bacterium, similar to E. coli O157:H7. Illness caused by E. coli O26 can include symptoms of acute diarrhea, in particular, bloody diarrhea, and abdominal cramps with little or no fever. The illness usually lasts one week. In some people, especially young children, the elderly, or those who are immunocompromised, a more severe illness, such as hemolytic uremic syndrome (HUS), even death, is possible. Persons with HUS have kidney failure and often require dialysis and transfusions.