Food Poisoning Lawyer & Attorney : Marler Clark : Food Poison Journal

West Missouri Beef, LLC, a Rockville, Missouri establishment, is recalling approximately 14,000 pounds of fresh boneless beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced today. 

The following products are subject to recall:

One combo bin containing approximately 2,000 pounds of fresh boneless beef identified as “75 1-M,” produced on October 26, 2009.  

One combo bin containing approximately 2,000 pounds of fresh boneless beef identified as “90 3-D,” produced on November 25, 2009.  

One combo bin containing approximately 2,000 pounds of fresh boneless beef identified as “90 5-D,” produced on November 27, 2009. Combo bins containing approximately 2,000 pounds of fresh boneless beef identified as “90 2-P,” “90 2-R” or “90 2-V,” produced on December 8, 2009. 

One combo bin containing approximately 2,000 pounds of fresh boneless beef identified as “90 3-E,” produced on January 13, 2010. Each container is marked with the establishment number “EST. 5821” inside the USDA mark of inspection.  

The fresh boneless beef products were distributed to wholesalers in the Chicago, Ill., area. 

The problem was discovered by FSIS during a verification review performed at the establishment.

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In 1999, the USDA-FSIS asked the National Advisory Comittee for Microbiological for Foods whether tenderized beef presented increased risks of contamination by E. coli O157:H7.  The answer, of course, was that it does, and that risks to consumer health increased correspondingly.  See Recommendations. 

This is not surprising, of course, nor is it particularly newsworthy in and of itself given the recent outbreak linked to tenderized beef from National Steak and Poultry.  In other words, we already knew that.  What i am interested in at this point is what questions we need to ask of National Steak and Poultry in upcoming litigation over the outbreak.  Essentially, what did National Steak and Poultry, and the industry at large, know about the risks of tenderized beef, and what did they do in order to reduce these risks and make a safer product. 

FSIS recommended several such steps, which certainly do not exhaust the list of things that manufacturers of tenderized beef need to do, but are good first steps at least:

First, the FSIS asked each plant operater that mechanically tenderizes beef to specifically consider in their annual reassessment of their HACCP (hazard analysis and critical control points) plan the significance of E. coli outbreaks linked to tenderized beef as a hazard that is reasonably likely to occur. 

Second, FSIS asked that each of these processors implement purchase specifications requiring the incoming product to be treated to reduce or eliminate E. coli to an undetectable level or apply an approved antimicrobial treatment to the meat.  See yesterday's post on this subject.

Third, though not really a recommendaiton, FSIS was "considering" a requirement that raw, mechanically tenderized beef be labeled to show that it had undergone mechanical tenderization.  (A brilliant idea, and one that all state legislatures should consider independently of any FSIS commandment on the subject; consumers should, at the very least, know whether the meat they are about to consume has undergone a tenderization process that may require a different cooking approach to make the product safe to eat)

Further, in light of the FSIS research and recommendations, the Dairy and Food Protection Branch (Division of Environmental Health, Department of Environmental and Natural Resources) issued the following additional recommendations:

1.  All beef not labeled as intact and without buyer specifications to show that it is intact must be assumed to be a non-intact beef product based on the standard meat processing industry practices of pinning, tenderizing or injecting these products. This also includes comminuted beef steak (chopped, flaked, ground, minced, restructured or reformulated).

2. Cook non-intact beef products to a temperature of 155°F as measured by a properly calibrated food thermometer as required by the FDA Food Code.

3. If you currently tenderize beef steaks or other beef products in your restaurant kitchen, please stop this practice.

4. Educate your staff about the identified risks of mechanically tenderized (non-intact) beef products.

5. When possible, notify consumers about the risk of getting E. coli from mechanically tenderized (nonintact) beef steaks and roasts

I wholeheartedly agree, particularly with any recommendation aimed at achieving elimination of bacterial contamination by the slaughterhouses, as well as with any recommendation that aims to educate the consumer about the risks he or she faces by consuming tenderized beef.  National Steak and Poultry, which of these steps were you actively taking at the time of the outbreak?

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Injury issues aside (see John Mcdonalds HUS story), the problem with tenderized beef is that it internalizes bacteria from the surface of intact cuts of beef, thereby reducing the likelihood that cooking will serve as an effective kill step.  The recent (ongoing???) outbreak of E. coli O157:H7 linked to National Steak and Poultry products occurred because the cuts of beef were mechanically tenderized.  In fact, somewhat frighteningly, a majority of the steaks and roasts destined for consumption at hotels, restaurants, and other institutional settings are mechanically tenderized.  Clearly, unless consumers stop eating tenderized beef or a reliable pre-cooking kill step is established and actually used, the onus for the task of manufacturing safe beef products remains squarely on the manufacturers' shoulders.

"Manufacturer" is a broad term, and I intend to confine it to no one entity in the process of manufacturing beef products.  It includes slaughterhouses and retail meat producers alike (e.g. National Steak and Poultry).  Because our inboxes and voicemail systems are already filling up with inquiries about the outbreak, we will have the opportunity to discover everything that National Steak and Poultry, and the entities who sold it the contaminated products, knew about the risks associated with tenderized beef.  And more importantly, we will have the opportunity to discover what those entities did to minimize or eliminate the risk that consumers of their products would become infected by E. coli O157:H7.

For starters, we will be interested to know what studies these entities participated in to research both the prevelance of E. coli and other bacteria on the surface and in the interior of tenderized beef; what the results of those studies were; and how these entities used or acted upon the results of their work.  If the answer is, as it very well may be, "No, we did not fund or participate in any such studies," i'm not sure that's going to mean much in front of a jury who is going to hear that such studies have, in fact, been done. 

One such study by The Center for Red Meat Safety at Colorado State University, which sought to determine the efficacy of anti-microbial treatments at various stages of the manufacturing process, found that the obvious was true:  bacteria is very hard to effectively remove or kill once it has been introduced into the interior of the beef; but that surface interventions can effectively reduce the contamination load on the surface of the product.  See the whole study here.   The timing of the chosen treatment (in the study, researchers used both water and lactic acid) is also important, as the study quite logically found that the treatments were more effective when done prior to tenderization. 

The main point of this study, or at least the point that i think we should all take from this and other similar studies, is that there is no failsafe method, in use presently, of eliminating bacteria from the surface or interior of beef products once those products become contaminated.  Thus, manufacturers must attack the problem of bacterial contamination on meat products where interventions can be more effectively applied:  during the slaughtering process.  If we prevent meat from becoming contaminated in the first place, the need to eliminate contamination from the surface or interior of the meat will cease to exist.  

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Certain circumstances surrounding the National Steak and Poultry E. coli O157:H7 outbreak have me worried.  The pathogen is incredibly dangerous; the vehicle (non-ground beef products) is often not cooked to a high enough temperature to kill E. coli; many of the beef products recalled are frozen, thus extending the shelf-life, putting more people at risk over a longer time frame, and frustrating public health detection efforts; and perhaps most concerning, the list of products is really long: 

4-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SC68408.”

6-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SP680608.”

8-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SC68808”

9-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SC68908.”

“NATIONAL STEAK AND POULTRY BONELESS BEEF TIPS,” with an identifying case code of “69108.”

“NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK” with an identifying case code of “XXSP68008.”

“NATIONAL STEAK AND POULTRY SAVORY SIRLOIN TIPS” with an identifying case code of “XX69008.”

5-ounce “NATIONAL STEAK AND POULTRY BACON WRAPPED BEEF FILLET,” with an identifying case code of “23508.”

“NATIONAL STEAK AND POULTRY USDA SELECT BEEF SHOULDER MARINATED TENDER MEDALLIONS” with an identifying case code of “23289.”

“NATIONAL STEAK AND POULTRY 75% BONELESS BEEF TRIMMINGS,” with an identifying case code of “33575.”

"NATIONAL STEAK AND POULTRY BEEF TRIMMINGS,” with an identifying case code of “36545.”

“NATIONAL STEAK AND POULTRY BEEF SIRLOIN PHILLY STEAK,” with an identifying case code of “88008.”

4-ounce “EGN BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680425.”

7-ounce “EGN BONELESS BEEF SIRLOIN TRI TIP STEAK,” with an identifying case code of “69725.”

9-ounce “EGN BONELESS BEEF SIRLOIN TRI TIP STEAK,” with an identifying case code of “680925.”

7-ounce “KRM BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680715.”

9-ounce “KRM BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680915.”

12-ounce “KRM BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680215.”

8-ounce “CARINO’S BONELESS BEEF OUTSIDE SKIRT STEAK,” with an identifying case code of “130874.”

“CARINO’S BONELESS BEEF OUTSIDE SKIRT STEAK PIECES,” with an identifying case code of “13074.”

“MOE’S BEEF STEAK,” with an identifying case code of “78027.”

I suppose that only time, and the CDC, will tell how many people since September have been sickened, or died, in this outbreak.  We already know that there are victims in six states, including Washington, Michigan, South Dakota, Iowa, Colorado, and Kansas.  Maybe the final destructive tally will not be as large as the circumstances of this outbreak suggest that they could be.  But it certainly seems like a perfect storm, of sorts, to me.

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E. coli O157:H7 strikes again, this time stealing some of Santa's thunder and delivering a pile of bad news (for the meat industry, the consumer, everybody) on Christmas Eve.  The outbreak linked to National Steak and Poultry, an Oklahoma-based purveyor of pre-portioned beef products, has sickened people in Colorado, Iowa, Kansas, Michigan, South Dakota, and Washington.  I havent' yet seen reference to how many are thought to have been sickened in the outbreak, but a listing of six states stretching from the eastern time zone all the way to the west coast portends some bad news on that front.

There is never "down time" at Marler Clark.  We are constantly busy, sometimes almost too busy, representing people who have been sickened in E. coli and other outbreaks.  But this outbreak adds more than a few "to dos" to our lists at Marler Clark.  The epidemiological evidence so far establishes that people were falling ill in this outbreak as far back as September 09; it also suggests that we're dealing with a possibly frozen product--i.e. one that does not necessarily have a short shelf life (all the more reason for National Steak and Poultry to heed Bill Marler's call to release its customer list so that people don't continue to get sick). 

I can think of more than a few people who have called me since September who were ill themselves, or were distraught over the illness of a family member.  We investigate even the illnesses of those who are not part of a recognized outbreak, but even the lawyers at Marler Clark are sometimes limited by the known epidemiological evidence.  Now, however, after announcement of the National Steak and Poultry outbreak, we've got a heck of a lot more to go on.  I know what I'll be doing this afternoon, tomorrow, and into next week:  sorting through the files of probably one hundred E. coli victims who have called since September, looking for possible exposures to national steak and poultry products.   

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 The CDC did not provide any updated statistics today about the number of people sickened in the ongoing E. coli O157:H7 outbreaks linked to ground beef (still 26 illness in 11 states, with 2 deaths and 3 HUS), but the Food Safety and Inspection Service (FSIS) did update the list of retail stores who may have received contaminated ground beef.  The list is long and comprehensive and, to me at least, suggests that the number of people who may be involved in at least the Fairbank Farms outbreak may continue to grow.  See the FSIS update here.

 Here is the short version:  

Shaws in Connecticut, Maine, Massachussetts, Rhode Island, New Hampshire and Vermont

Price Chopper in Connecticut, Pennsylvania, Rhode Island, and Vermont

Acme in Delaware, Maryland, New Jersey, and Pennsylvania

Giant in Pennsylvania

Pathmark in Delaware, New Jersey, New York, and Pennsylvania

Food Lion in North Carolina, South Carolina, Virginia and West Virginia

Trader Joe in Connecticut, Delaware, Maryland, Massachussetts, New Jersey, New York, and North Carolina

BJ in New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Virginia

Martins in Maryland, Pennsylvania, Virginia, and West Virginia

Great American in New York

IGA in Maine, New York, and Vermont

Surefresh in Delaware, Maryland, and Pennsylvania

Grand Union in Connecticut and New York

A&P in New Jersey and New York

Waldbaum in New York

C&S in Vermont

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 The CDC reports today that there are currently only 26 illnesses in 11 states that are linked to the Fairbank Farms E. coli O157:H7 ground beef outbreak and recall.  This represents a reduction in the number of cases attributed to the outbreak by two.  

Here is the outbreak rundown:

On October 31, 2009, FSIS issued a notice about a recall of over 500,000 pounds of beef products from Fairbank Farms that may be contaminated with E. coli O157:H7. Health officials in several states who were investigating a cluster of E. coli O157:H7 illnesses, with isolates that match by “DNA fingerprinting” analyses, found that most ill persons had consumed ground beef, with several purchasing the same or similar product from a common retail chain. At least some of the illnesses appear to be associated with products subject to these recalls. A sample from an opened package of ground beef recovered from a patient's home was tested by the Massachusetts Department of Health and yielded an E. coli O157:H7 isolate that matched the patient isolates by DNA analysis.

The cluster includes 26 persons from 11 states infected with matching strains of E. coli O157:H7. The number of ill persons identified in each state is as follows: California (1), Connecticut (4), Massachusetts (8), Maryland (1), Maine (2), Minnesota (1), New Hampshire (4), New Jersey (1), New York (1), Pennsylvania (2), and Vermont (1). Of these, the genetic association of 13 human isolates and the product isolate have been confirmed by an advanced secondary DNA test; secondary tests are pending on others. Depending on the results of continuing laboratory testing and ongoing case finding, the number of persons determined to be in this cluster may increase or decrease.

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Earlier today, the CDC posted the following update on the E. coli O157:H7 ground beef outbreak and recall on its website:

Several state health departments, CDC, and the United States Department of Agriculture's Food Safety and Inspection Service (USDA-FSIS) are investigating a multi-state outbreak of Escherichia coli O157:H7 infections. On October 31, 2009, FSIS issued a notice about a recall of 545,699 pounds of beef products from Fairbank Farms that may be contaminated with E. coli O157:H7. Health officials in several states who were investigating a cluster of E. coli O157:H7 illnesses, with isolates that match by “DNA fingerprinting” analyses, found that most ill persons had consumed ground beef, with several purchasing the same or similar product from a common retail chain. At least some of the illnesses appear to be associated with products subject to these recalls. A sample from an opened package of ground beef recovered from a patient's home was tested by the Massachusetts Department of Health and yielded an E. coli O157:H7 isolate that matched the patient isolates by DNA analysis.

The cluster includes twenty-eight persons from 12 states infected with matching strains of E. coli O157:H7. Of these, the genetic association of 7 human isolates and the product isolate have been confirmed by an advanced secondary DNA test ; secondary tests are pending on others. The number of ill persons identified in each state is as follows: California (1), Connecticut (4), Massachusetts (8), Maryland (1), Maine (2), Minnesota (1), New Hampshire (4), New Jersey (1), New York (1), Pennsylvania (2), South Dakota (2), and Vermont (1).

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The Wisconsin State Journal recently published an excerpt from an interview on the increased number of food recalls we have seen in the last few years.  In the interview, Dr. Kathleen Glass of the Food Research Institute at UW-Madison concluded, in part at least, "That the food-safety system is working, even though the number of recalls is rising."  This inspired me to respond with a slightly different take on the safety of our food safety system as a whole.

Over the last several years—in fact, beginning with the infamous Dole baby spinach outbreak in September 2006—fully 90% of the people we, at Marler Clark, have represented have been victims of severe E. coli O157:H7 infections, sometimes resulting in hemolytic uremic syndrome. And aside from approximately 100 spinach victims, close to 95% of these folks were sickened by contaminated ground beef. This may be nothing more than a real world application of non-scientific fact. Whatever the case, it sure doesn’t jibe well with Dr. Glass’s optimism about our food safety system, as a whole, or ground beef more specifically.

Certain sectors expressed sentiments similar to Dr. Glass’s as recently as the beginning of 2007, touting that the incidence of E. coli O157 in meat had plummeted since the 1990s, dropping nearly 80%. The rate of actual illnesses in people, it was said, was also way down. It appeared, by both statistics and the profiles of our clients, that the meat industry had indeed cleaned up its act—that big beef finally would put Bill Marler and his firm in Seattle out of business.

If the first several years of this millennium showed progress by the beef industry, 2007, 2008, and 2009 are years that it would rather forget. Beef companies recalled over twenty-nine million pounds of meat in 2007. 2008 saw at least sixteen recalls of beef products, totaling at least 2,361,295 pounds of meat. And to date in 2009, beef companies have recalled close to one million pounds of product, including the recent recall of 825,000 pounds due to possible Salmonella contamination. True enough, these are just bare numbers—courtesy of the USDA website—but a simple contrast with the first five or six years of this millennium is illustrative. Progress? Optimism? I don’t see it.

Ultimately, these numbers may serve Dr. Glass’s points directly: more recalls may mean more testing, but it does not necessarily mean more illness. To that, all we can really say is that, well, we’ve sure as heck seen a lot more sick people in the last three years than we did the six previous ones. Indeed, there are more than a few families that I can think of around the country who would be shocked—probably even dismayed—to learn that our “food-safety system is working, even though the number of recalls is rising.”

Let me make a different assessment; perhaps it will be a better platform from which to build a national, and international, food-safety system that’s more in keeping with what consumers expect: no, we are not making good enough progress; and no, I don’t agree that the increased number of food recalls (ground beef in particular) is just because of better testing, and more surveillance within the public health community. Take it for what you will, but we have represented more victims of foodborne disease in the last three years alone that we did in the entirety of this firm’s first decade of existence. 

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