By Gene Barton – King County Bar Journal
I was a summer associate with Karr Tuttle Campbell in 1995 when Bruce Clark invited me to attend the preliminary joint session of a mediation that was being held in our offices. As it turned out- and this tells you how (even to this day) news travels slowly around to my office – the plaintiff’s lawyer represented one of the victims of the Jack in the Box E. coli outbreak of 1993 and we represented JIB’s parent company, Foodmaker. I had no idea we were involved in the case; granted, I hadn’t been on the scene that long, but you’d think someone would have told me.
Another personal anecdote: I was a newspaper editor in Bend, Oregon, working my last months in the newspaper business before moving to Seattle to go to law school, when word of the outbreak first crossed my desk. I was editing an article about it and the term E. coli O157:H7 was mentioned.1 I thought the alpha-numeric was some kind of crazy typo caused by a typesetting glitch; so, I deleted it.
I didn’t know anything about E. coli back then; in fact, few people did. And that’s Jeff Benedict’s early, almost unbelievable message in Poisoned, which when unveiled comes as a bit of a shock when we now know how deadly serious E. coli is. In short, nobody knew; well, some people knew, but not those in a position to prevent the most serious, documented outbreak of food-borne illness in the U.S. Jack in the Box certainly didn’t know. The meat-packing industry didn’t know (or didn’t care). Surprisingly, many state and local health departments and hospitals knew very little; so little, in fact, that emergency room doctors did not know what they were facing or how to treat it when the outbreak first hit.
Benedict has crafted Poisoned as a multi-part narrative, which takes us behind the scenes at JIB, into the slaughterhouses and hospitals, and through the legal machinations, bureaucracy, and skullduggery. Part of the story is the outbreak and the resulting, well-known legal case; the other side is the lesser-known – and still ongoing – changes in the food industry designed to clean up food processing and prevent future outbreaks. Most of these were initiated by Jack in the Box itself, which hired a leading food safety consultant as a full-time management employee to change the way – and what – Americans eat.
But there are two main characters: Bill Marler, the Seattle lawyer who represented many of the plaintiffs and made his name in the case,2 and 9-year-old Brianne Kiner of Seattle, his “biggest” client. In addition, many other Seattle lawyers, past and present, play supporting, but important roles, as if they were written for them in a work of best-selling fiction: Bob Piper (the gruff-but-loveable defense attorney taking on his last big case); Denis Stearns (the plucky associate); Brad Keller (the peacemaker); and Lynn Sarko (the villain).
“Jeff did a great job telling such a huge, complicated story in such a dramatic and readable way,” Stearns said via email. “Of course, such an accomplishment requires compression and streamlining, and does not allow for the showing of every perspective. I was impressed that JIB came across in a way that was accurate and understandable, albeit still with a perspective more attuned to the plaintiffs’ view of the outbreak.”
Stearns said he was “flattered” to be so prominently featured in the book, but not necessarily for personal reasons. “I think the folks ‘in the trenches’ tend to get left out of stories like this one,” he said.
“I was ambitious enough at the time to grab the opportunity the litigation provided, and push for as much responsibility as I could get, but it’s nice to see motion practice and depositions get a little attention in a legal story.… Jeff worked amazingly hard to speak to all involved. The fact that he got JIB to participate speaks for itself, and speaks volumes.”
Leading the charge, of course, is Marler (the white knight). In focusing on Marler, Benedict chronicles the rise of the one-time former Pullman city councilman (elected as a 19-year-old student at WSU) from associate to food-safety crusader, including all the literal trials and tribulations of not only fighting Jack in the Box, but also his own colleagues, including a dramatic, clandestine, office-emptying exit from Keller Rohrback in the midst of the litigation.
Marler’s tale is an intimate one, crafted by Benedict based on a series of interviews conducted in Marler’s home. Virtually no stone is left unturned as we follow Marler up the ladder and through the case. We see him grow from a third-year, wet-behind-the-ears associate, living in a cabin on Bainbridge Island and trying to build a family life and personal injury practice with little support from his firm, to the legal expert/advocate with the thriving, multimillion-dollar practice that we know today. The first E. coli cases, including Brianne’s, came to him because he fought for them. Today, those sickened by tainted food come looking for him.
Brianne’s story is no less intimate, but in a far different way. An outing to Jack in the Box with her father quickly turns into a near-death experience as the E. coli in her undercooked hamburger ravages her internal organs. A recurring theme in Poisoned is her mother’s lament before Congress: How could all this be caused by taking a few bites out of a hamburger? Clinging to life, in a coma for weeks, Brianne becomes the “poster child” of the outbreak. Her awakening and recovery are remarkable. Her case, in legal terms, momentous.3 The book climaxes with the bell-ringing settlement.
I had the chance the meet Benedict a few weeks ago during a book signing at, appropriately enough, the new Marler Clark4 offices in downtown Seattle on Second Avenue. Many of the key players were there, including Brianne. She’s 27 now. She was smiling and vibrant. A living miracle. But she’s also still small (under 5 feet), and I couldn’t help but notice that she still looks frail and vulnerable, even to something as innocuous as a hamburger.
1 Science lesson: The “O” refers to the cell wall (somatic) antigen number; the “H” refers to the flagella antigen: http://en.wikipedia.org/wiki/Escherichia_coli_O157:H7.
2 An older, grayer Marler was the subject of the Bar Bulletin’s November 2005 Profile. You can read more about him at the KCBA website: https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=11&Year=2005&AID=profile.htm.
3 Four children died in the outbreak and the stories of two of them are briefly highlighted in Poisoned. Sadly, they are not the focus of the book; for dramatic reasons, they could not carry the narrative. For pragmatic reasons, Brianne’s story was bigger. The harsh reality of law, as we know, is that the child who survives commands a bigger settlement or verdict than the child who dies.
4 Yes, that’s Bruce Clark from the 1995 mediation. Denis Stearns is a partner in Marler Clark as well. They both joined Marler as he was setting up his own firm – on the move again – at the time of the Odwalla outbreak, which is one of the tied-up loose ends in the Poisoned epilogue.