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Food Poison Journal

Food Poisoning Outbreaks and Litigation: Surveillance and Analysis

Salmonella Test Causes Filbert Recall

ucm435552Fairway “Like No Other Market” of New York, NY, is recalling Fairway brand Raw Hazelnuts (Filberts), because it has the potential to be contaminated with Salmonella, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

The Fairway brand Raw Hazelnuts (Filberts) were distributed to Fairway stores in New York, New Jersey and Connecticut, and also through home delivery programs provided by Google and Instacart.

The product is packaged in clear, plastic cello bags of varying weights, each weighing less than one pound. The product bears Item Code 228119 XXXXXX. All “SELL BY” Date codes of May 15, 2015 and earlier are being recalled.

There have been no reported illnesses to date.

The recall is the result of a routine sampling program by the FDA which revealed that the finished product contained the bacteria. The company has ceased distribution of the Fairway brand Raw Hazelnut (Filberts) and removed the product from Fairway store shelves as the FDA and the company continues their investigation as to what caused the problem.

Food Safety For Those Over 60

KATE GUSTMAN RDN, CD, Ridgewood Care Center Dietician

Everyone needs to practice food safety and sanitation. However, for the very young and old the consequences of not doing so are much more detrimental. It is best to follow these guidelines:

  • Practice frequent hand-washing — Wash hands before, during and after cooking, as well as before you eat. Use warm water and soap for 20 seconds, then dry with a clean towel.
  • Keep raw meat and eggs separate — Raw items should not touch anything that may introduce bacteria into your mouth. This includes cutting boards, knifes and countertops; sanitize before re-using.
  • Practice keeping foods properly cooled — Set refrigerator temperature lower than 40 degrees. Put cold items in refrigerator right away after shopping. Refrigerate leftovers within two hours, putting large quantities into smaller, shallow containers to cool more quickly. Use leftovers within seven days. Use foods by expiration date.
  • Cook foods to proper temperatures — This can be checked using a calibrated meat thermometer. Most food packages have the minimum temperature listed on them.

Also note these foods that are not safe for older adults: undercooked meat and fish (sushi), refrigerated smoked seafood, unpasteurized dairy, some fresh soft cheeses, raw/undercooked egg, raw sprouts, deli salads, unpasteurized fruit and vegetable juices.

THE 2007 CASTLEBERRY FARMS BOTULISM OUTBREAK

50961_1On July 7, 2007, the Centers for Disease Control and Prevention (“CDC”) learned that two siblings in Texas were critically ill with botulism and that their illnesses were likely acquired by eating contaminated food. The two children were admitted to pediatric intensive care, and there required mechanical ventilation. The CDC released doses of botulinum antitoxin,[1] which was administered to the children the next morning. [2]

Four days later on July 11, public health officials in Indiana reported to the CDC that a married couple in Indiana were suspected of having foodborne botulism. Serum samples were collected from each of them on July 10 and then sent to the Botulism Reference Laboratory at the CDC. On July 16, one day after the lab received the serum samples, botulinum toxin type A was detected by mouse bioassay in the man’s serum sample. Botulinum toxin was also detected by mouse bioassay in serum submitted by the wife, but the sample volume was insufficient to determine the toxin type. Investigations conducted by state and local health departments in both Texas and Indiana revealed that all four patients had eaten types of Castleberry’s hot dog chili before symptom onset.

Texas investigators found an unopened can of Castleberry’s Austex Hot dog Chili Sauce Original date stamped with a manufacture date and time of May 7 at 9:41 p.m. at the children’s home and tested it for botulism. The Texas Department of Health Services laboratory tested an aliquot from this can using an enzyme-linked immunosorbent assay (ELISA) for botulinum toxin and did not detect the toxin.

The Indiana couple had an unlabeled, sealed plastic bag of leftover chili mixture in their refrigerator that local health officials collected and sent to the CDC for C. botulinum toxin testing. On July 16 the CDC detected botulinum toxin type A by mouse bioassay in the chili mixture. Empty, well-rinsed cans of Castleberry’s Hot Dog Chili Sauce Original and chili made by another company were found in the couple’s recycling bin. CDC re-rinsed the two cans and tested the rinse water for botulinum toxin by mouse bioassay; both were negative. The label on the can of Castleberry’s Hot Dog Chili Sauce Original indicated a production-date of May 8, and a time of 2:23 AM—less than five hours after the production-time indicated on the can collected from the Texas home.

On July 17, CDC staff provided information regarding the production-dates and times to the FDA. The evidence strongly suggested that brands of Castleberry’s hot dog chili sauce were the common source of the four ill persons with botulism. On July 18, FDA issued a consumer advisory. On that same day, after being informed about the outbreak, and findings from the FDA investigation of the canning facility, Castleberry’s Food Company issued a voluntary recall that included a limited number of production dates of Castleberry’s Hot Dog Chili Sauce Original, Castleberry’s Austex Hot Dog Chili Sauce Original, and Kroger Hot Dog Chili Sauce. The recall was expanded on July 21 to include all production dates for 91 types of canned chili sauce, chili, other meat products, chicken products, and dog food that were manufactured in the same set of cookers, or “retorts” as the hot dog chili sauce at the Castleberry’s facility in Augusta, Georgia.

By August 24, eight cases of botulism had been reported to the CDC. In addition to the Indiana couple, the mother of the children in Texas had developed symptoms of botulism, which brought the total number of Castleberry-associated cases in Texas to three. There were also three unrelated residents of Ohio who had developed botulism consuming Castleberry’s hot dog chili sauce in the week before symptom onsets. Botulinum toxin was identified in leftover chili sauce collected from the refrigerator belonging to one of the Ohio cases.

The Castleberry’s manufacturing facility in Georgia produces products regulated both by the FDA and USDA-FSIS. Initial reports of illnesses were linked to meatless hot dog chili sauce and thus, fell under the jurisdiction of the FDA. The agency’s Atlanta District Office took the lead in the investigation of facilities.

The inspection started on the evening of July 17. FDA investigators requested company maintenance records, which were not immediately available because they were stored on a laptop of a vacationing employee. Finally, three days later, under threat of severe penalty, the company produced some of the requested records. Included in records provided to federal investigators was a 42-page report written by a consultant hired by Castleberry’s to investigate swollen cans of stew, chili, and hash produced in April and May 2007. The consultant had attributed spoilage to post-process handling operations in one of the plant’s cooking equipment. Reports by two other company-hired consultants would also implicate post processing as the reason for swollen cans. Unfortunately, Castleberry’s had not investigated the issues further.

On July 18 and 19, a team of federal investigators were sent to the firm’s warehouse. Samples of Castleberry’s Austex and Castleberry’s brand Hot Dog Chili Sauce with the “best by May 7, 2009” and “best by May 8, 2009” lot codes were collected and sent to FDA laboratories for testing.[3] FDA testing of sample 428113, consisting of 17 swollen cans, found C. Botulinum toxin in 16 of the cans. This sample included the same time-stamp and lot code from the May 8, 2007 production as the can found in the Indiana home. FDA testing of sample 420352, consisting of six swollen cans, found C. Botulinum in four cans. FDA sample 420353 included one swollen can, and its contents tested positive for C. Botulinum toxin.

Federal investigators conducted extensive tests on Castleberry equipment. Noted observations include:

  • The system, equipment, and procedures used for thermal processing of foods in hermetically sealed containers were not operated and administered in a manner that ensures commercial sterility is achieved.
  • Each retort did not have an accurate temperature records device.
  • Failure to supply a suitable water valve used for water cooling to prevent leakage of water into the retort during processing.
  • The condensate bleeder was not checked with sufficient frequency to ensure removal of condensate or equipped with an automatic alarm system for the continuous monitoring of condensate bleeder functioning.
  • Required information was not entered on designated forms at the time the observation was made by the retort or processing system operator or designated person.
  • Failure to maintain fixtures in repair sufficient to prevent food from becoming adulterated.
  • Failure to properly adjust the temperature-recording device. The temperature recorded on the temperature-recording device chart was higher than the mercury-in-glass thermometer during processing.

The report ultimately placed blame on Castleberry management saying there was no commitment from employees in making the products and there was not adequate management oversight. As one Castleberry employee noted: “Two years ago the [implicated reports] were maintained very well, but they are maintained poorly now.” The FDA plainly agreed, citing Castleberry’s for the “failure to maintain fixtures in repair sufficient to prevent food from becoming adulterated.”

Castleberry made substantial fixes at its plant and then reopened in the fall of 2007. The company re-branded its line to American Originals, and redesigned product labels. But in March, 2008, the plant was forced to close again after a February 27 joint-inspection by the FDA and USDA revealed deviations in some equipment operations on the processing line. The line was not related to deficiencies noted in the summer of 2007 but because under-processing caused the botulism outbreak, the plant’s operating permit was suspended.

Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of Botulism outbreaks. The Botulism lawyers of Marler Clark have represented thousands of victims of Botulism and other foodborne illness outbreaks and have recovered over $600 million for clients. Marler Clark is the only law firm in the nation with a practice focused exclusively on foodborne illness litigation. Our Botulism lawyers have litigated Botulism cases stemming from outbreaks traced to carrot juice and chili.

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[1]           The CDC is the only source of the therapeutic antitoxin, which is stocked in locations around the country for rapid release. See Sobel, supra note 2, at 1607.

[2]           The information about the outbreak comes primarily from the CDC-published report issued July 30, 2007. See MMWR, supra note 1, at 1-2. The information specific to the Castleberry’s manufacturing facility is taken from the FDA Establishment Inspection Report, FEI No. 1010894.

[3]           This was despite Castleberry’s questionable efforts to apparently destroy evidence. As noted in the FDA Inspection Report, “Castleberry’s personnel had sorted through lots and destroyed most of the swollen cans prior to our visit.” Although the FDA has not imposed any specific penalty for this conduct yet, it is safe to assume that the conduct would be scrutinized by a court as potential spoliation.

First Lawsuit Filed on Behalf of Texas Woman Sickened By Salmonella Tainted Food from The X In Texas Wood Fired Grill

Dallum County resident Frances Childers has filed a lawsuit against The X In Texas Wood Fired Grill, LLC over a severe case of salmonella poisoning she suffered after eating at the restaurant located in Dalhart, TX. Childers is represented by John C. Ramsey and Justin A. Hill of Ramsey Hill, LLP in Houston, TX, and Bill Marler of Marler Clark, a Seattle-based firm specializing in food safety.

Childers, who dined at and consumed food from the X in Texas Wood Fired Grill on February 6, 2015, began feeling ill the very next day. For the next several days, she experienced agonizing symptoms, including excruciating abdominal pain, muscle aches, fatigue, uncontrollable diarrhea, nausea, and vomiting. She could only keep food and water down momentarily, before bringing it up again. Her symptoms continued for the next three days.

On February 10, Childers could not take anymore and went to High Country Community Health Clinic, where she was given medication to aid her nausea. She was told to purchase over-the-counter probiotics to aid her digestion and was advised to acquire a stool sample.

Her condition worsened and her two sons immediately took her to Dalhart Emergency Room. There, she received three bags of fluid intravenously. Because her kidneys were failing and she could need life-saving dialysis, she was sent to BSA Hospital in Amarillo, where she stayed for 4 days. It was there that she was told of the recent instances of Salmonella poisoning.

Sure enough, Childers’ stool sample, which was submitted to Coon Memorial Hospital Lab, tested positive for Salmonella. It was reported to the Texas Department of Health, who had already begun an investigation to identify and isolate the source of the recent Salmonella outbreak.

In early February of 2015, the X in Texas Wood Fired Grill voluntarily closed its doors after the Texas Department of State Health Services confirmed their connection to the outbreak. The restaurant was cleaned and sanitized and cleared for reopening. The restaurant reopened on February 19, 2015. The source of the outbreak has not been confirmed and all environmental and food samples tested negative for Salmonella.

“It sounds like the Wood Fired Grill is not only putting the X in Texas, but the S in Salmonella,” said Bill Marler, who has been working to help improve food safety standards since representing victims of the Jack In The Box E. coli outbreak in the early 1990s. “Contrary to popular belief, it is very worrisome when environmental and food samples test negative, because this could mean that the source of the outbreak is an infected employee.”

Salmonella is transmitted by food, water, or surfaces that have been contaminated with the feces of an infected animal or person. Symptoms develop 6 to 72 hours after infection. One of the best ways to prevent the spread of Salmonella is to have proper hygiene and hand washing practices in place, especially after using the bathroom and before handling or preparing food.

“It is extremely frustrating to have to repeat, and repeat, and repeat myself about the importance of hand washing,” said Marler. “It is a scary thought to think that such a simple life-saving act is not being done properly or at all.”

Ramsey Hill LLP is a Texas based law firm with offices in Houston and San Antonio, Texas.  The Texas Trial Attorneys at Ramsey Hill LLP have litigated and tried lawsuits all over the State of Texas and in many other states.  The Texas Personal Injury Lawyers at Ramsey Hill LLP practice primarily in the areas of personal injury, product liability, oil & gas, and commercial litigation.

Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of Salmonella outbreaks. The Salmonella lawyers of Marler Clark have represented thousands of victims of Salmonella and other foodborne illness outbreaks and have recovered over $600 million for clients. Marler Clark is the only law firm in the nation with a practice focused exclusively on foodborne illness litigation.