Over the past 20-plus years I have given close to 400 speeches around the world on “why it is a bad idea to poison your customers.”
My “chats” have been in front of industry and governmental groups on every continent, except South America. I’m somewhat popular in China.
Most of the audiences are receptive to both my experience representing many of the most seriously injured people in nearly every major foodborne illness outbreak that has occurred in the U.S. since the 1993 Jack in the Box E. coli outbreak. I think, over time, many that I have sued to fairly compensate my clients have acquired a grudging respect that I do what I do not just for the money.
However, there have been moments. I have had more than a few tense encounters with people who simply do not believe in the civil justice system. I have had a few boo, not applaud, or simply walk out. Most I have taken in somewhat good humor.
A week ago I was in Hawaii, again giving my take on ways to avoid seeing me on the other side of a witness table. Things went well and the group was engaged – even the fellow with the bright red baseball hat emblazoned with “Make America Great Again” seemed to tolerate me.
Then the question came: “Mr. Marler, how do you sleep at night? You sued me over an outbreak that did not happen and it was not my product.”
At first I did not recognize the fellow, but as he spoke I recalled the outbreak. I tried to explain how we take what we do seriously and use both the law and science to determine who is at fault and therefore who should take legal responsibility. But, he was having none of it – he was convinced what I did was a “shake down.”
Yes, a “shake down” – here is the backstory:
At first glance, it appeared that the E. coli O157:H7 infections experienced by Natalia and Andrea D’Ercole were simply part of a small cluster of cases occurring in San Diego and Orange County, California. As part of the routine case investigation, San Diego County public health investigators learned that on October 12, 2008 the D’Ercole siblings had eaten at The Cheesecake Factory restaurant located in Fashion Valley Mall in San Diego.
In neighboring Orange County, a 46-year-old man with an E. coli O157:H7 infection reported eating at a Cheesecake Factory restaurant located in Brea, California on October 13, 2008.
Genetic testing by pulsed field gel electrophoresis (PFGE) showed that Andrea, Natalia, and the Orange County patient were sickened with an indistinguishable strain of E. coli O157:H7, designated by PFGE pattern numbers EXHX01.4626/EXHA26.2558. The strain was so unusual that it triggered a cluster investigation. Federal officials at the Centers for Disease Control and Prevention (CDC) assigned Cluster Identification Number 08100NEXH-1mlc to the investigation.
Through OutbreakNet, a national outbreak response unit staffed at the CDC, a fourth case-patient in the cluster was identified, an 18-year-old resident of South Dakota. This patient confirmed the association between illness and eating at a Cheesecake Factory restaurant. She had eaten at The Cheesecake Factory in Fashion Valley Mall on October 12, 2008, while on vacation in San Diego.
Natalia D’Ercole, the Orange County resident, and the South Dakota woman had symptom onset within five days of eating at the restaurant. Andrea D’Ercole’s symptoms started several days after Natalia’s onset. It is unclear whether Andrea’s infection was due directly to her meal at the Cheesecake Factory, or if her illness was secondarily caused via person-to-person contact with her ill sister.
Within a matter of days the outbreak grew beyond the Southern California confines. Public health laboratories continued to report PFGE matches to the “Cheesecake Factory” strain of E. coli O157:H7. Case-patients were identified in Illinois, Florida, New Jersey, and Ohio. These individuals reported restaurant exposures but none ate at a Cheesecake Factory. This led investigators to suspect a contaminated ingredient was in the marketplace.
Canadian investigators in Ontario identified an outbreak involving 55 people with at least 13 of them culturing positive for the outbreak strain. The majority of cases were linked to one of two restaurants. Illnesses occurred between Oct. 11 and Oct. 28. Canadian investigators conducted a case-control study and lettuce was statistically associated with illness. Product traceback showed that two restaurants tied to the outbreak shared a common produce supplier and that Andy Boy brand romaine lettuce was the only lettuce in common to all Canadian restaurants with outbreak cases.
Its called the law and science. Those who ignore both are bound to again see me on the other side of a witness table. “Shake down” indeed.
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