Eating Dangerously Read online

  Austin “Jack” DeCoster, who had built an egg dynasty, gave up control of egg operations in Iowa, Maine, and Ohio in 2011. Other companies purchased control of the operations.16

  Food-illness attorney Fred Pritzker, one of the country’s most popular lawyers for victims of foodborne illness, called the government’s lack of prosecution in the egg outbreak “mystifying.” “This is willful negligence,” said Pritzker, of Minneapolis. “It’s kind of like being a drunk driver, or a careless driver—I’m not trying to hurt anybody; I’m just a moron.”17

  Drunk drivers are prosecuted. Yet people who produce food for human consumption in the most deplorable of conditions are not. Numerous times, Pritzker said, he has been taking the deposition of a safety executive for a food producer and thought, “Are you kidding me? Are you imbeciles?”

  An attorney for the DeCoster family said it was “very false and misleading” to suggest the egg company owners were willfully negligent. Unlike the peanut butter case, the Wright County Egg case has no allegations of a coverup, or falsified lab results, or failing to provide notice to customers that bad product had been shipped, said lawyer Jerry Crawford.

  In one recent case, Pritzker was representing a seventeen-year-old girl who lost her kidney function after going out for a steak dinner at a popular chain restaurant with her family to celebrate her good grades. Pritzker couldn’t name the chain because the company negotiated a confidentiality agreement when it paid the teenager’s family in a private settlement.

  The steak she ate was “mechanically tenderized,” a process of stabbing the meat with needles to make it feel and taste like a better cut of meat. Many steaks at chain restaurants are mechanically tenderized, experts said. The problem with the process is that beef often has E. coli on its surface, and the needles that tenderize it can push the bacteria inside the meat. Normally, it’s safe to eat steak that’s pink on the inside as long as the outside is seared to kill off any bacteria. The inside of the steak is clean—but not when you push the bacteria from the surface to the inside of the meat.

  Mechanically tenderized steak has been the source of numerous E. coli outbreaks across the country. In Pritzker’s case involving the seventeen-year-old girl, he sued the manufacturer that tenderized the meat. Under questioning during a deposition, Pritzker learned the company knew its spray equipment meant to kill pathogens was not working properly. They had experts look at it, and they were told it wasn’t functioning as it should. Still, they continued selling the mechanically tenderized steaks.

  Neither the meat producer nor the tenderizer went bankrupt paying settlements to two victims Pritzker represented. Insurance paid the claims, as is usually the case. And as is usually the case, the companies insisted on confidentiality agreements to prevent the lawyers or clients from talking about what happened. The confidentiality protects the company from public scrutiny and keeps food safety advocates in the dark.

  It’s by no means a guarantee that companies forced to pay because of an outbreak won’t do it again. In fact, many of the big meat producers have been involved in numerous outbreaks. The secrecy of the process protects them. And if insurance is paying, the worst that might happen are increased premiums. Imagine a company that makes billions of dollars in annual sales. Paying a few million to people who nearly died eating their steak isn’t going to break the company.

  But it’s not as simple as that, said Pritzker, who has been representing food illness victims and families for twenty years. It’s a common belief among food producers that it won’t happen to them. “I think a lot of companies hate the idea both morally and financially of harming the public,” he said. “But I think there is a huge belief amongst most companies that it won’t happen to us, it hasn’t happened to us and we have good systems.” If companies would invest more up front on safety protocol, they could prevent the outbreaks that end up costing them exponentially more, Pritzker said.

  “These companies hate like hell to have an outbreak. It’s the worst thing that can happen to their business. Do they have any ongoing consequences? Never as much as they should. There is not a single case that I have been involved in that didn’t involve some egregious conduct on the part of somebody in the food distribution chain. Make them pay. Make them have some skin in the game.”

  Number one on most companies’ list of what to do in case of an outbreak is call a public relations firm. Minimizing the damage is the goal. Companies have this on their side when it comes to public exposure: “The public’s memory is very weak,” Pritzker said.

  Experts point to two main reasons that criminal prosecution after foodborne illness outbreaks are rare. First, federal prosecutors have limited resources, so they shy away from cases that might be harder to prove, cases with an unfamiliar pathogen or unusual food source. The second theory is that federal regulators and the industry are too friendly, a relationship that evolved through years of working together. Each time the FDA or USDA creates a regulation, it works with the industry, holding public comment periods throughout a long collaborative effort. Relatively few companies control the meat production in this country, and they work closely with the federal government through their trade association. USDA inspectors are stationed full time in factories. They get to know each other well.

  “Relationships get forged and I think that closeness tends to obscure prosecutorial decisions,” Pritzker said. “The idea is not to protect the industry. The idea is to prevent foodborne illness. Sometimes you need to crush a few egos and a few skulls to create that message.”

  Criminal proceedings have become so unlikely that no one seemed to expect anything of the sort after Colorado’s cantaloupe Listeria outbreak, quickly traced to melons grown by the Jensen brothers.

  “It would seem unfair to go after the Jensens as an example when you haven’t gone after anybody in twenty years,” said Bill Marler of Seattle, the nation’s most well-known food illness lawyer. Felony charges against the Jensens might have been a stretch, but prosecution on lighter misdemeanor charges would send a message to large food companies to focus on safety, Marler said. Jensen Farms’ distributor and auditor, Frontera and PrimusLabs, should have been legally forced to tighten standards after the outbreak, Marler said. “When companies change behavior is when they are held up to public scrutiny,” he said. Two years after the Colorado outbreak, some families clung to a desire for the farm to see tougher justice, but reports of federal interest were vague and sporadic. Some news outlets predicted charges against the Jensens in 2012, a year after the outbreak, but the calendar year turned without a change.

  Along with public scrutiny, lawsuits with the potential to put companies out of business can also inspire change. Lawsuits are the main form of punishment in this country for food producers who make people ill, and the targets of those lawsuits are expanding. The three prime targets of lawsuits in the cantaloupe Listeria outbreak had just $17 million in liability coverage for more than 130 illness cases that could easily cost more than $100 million in treatment and lost income. “It’s not going to be anywhere near enough to compensate all the victims,” said Pritzker, who represented some of the Listeria victims.

  The lack of available compensation led to threats to make new legal targets out of grocery stores, distributors, and auditing labs. “If they can get the deep pockets in, they’re going to get them in,” Denver lawyer Prochnow said. Grocery stores have a history of trying to protect themselves from lawsuits. How could they expect to know the safety history of each of the thousands of items on their shelves, they argue?

  Colorado-based Natural Grocers by Vitamin Cottage pushed state legislation, which was not successful, to protect grocers from liability in merely passing on products made by others. Colorado outbreak investigators linked seven Salmonella cases from PCA in 2009 to peanut butter made onsite at Vitamin Cottage stores, apparently using the tainted peanuts. The bill’s sponsors in the state legislature thought they were protecti
ng rural grocers from spurious lawsuits; they say that when they learned that it would be a major change in liability law, they killed the bill.

  Vitamin Cottage spokesman Alan Lewis said the initial intent of the legislation was to help small businesses that currently have no protection—not to absolve them of any responsibility. “Any good retailer takes responsibility for what they sell and makes good on any deficiency or problem with the product,” he said. “That’s different than betting your business on every can of soup that you sell.”18

  Grocery stores and other retailers argue that the trial attorneys who get between them and customers end up costing everyone more money. Supermarket food typically has a 1 percent markup that goes toward the store’s insurance bill. If customers who were sold bad food complained directly to the store instead of hiring a lawyer, the store could settle the claim on its own, they argue. The legal battle that ensues after an attorney gets involved might result in more money in the lawyer’s pocket, but not much more for the consumer than if the store had handled it directly, grocery store owners said.

  And deadly outbreaks are expensive. After a spinach outbreak in 2006, about $100 million was spent to settle 110 lawsuits. Attorneys’ fees vary widely but generally are in the range of 15 percent to 30 percent or more of settlements.

  State laws vary governing who has liability for bad products. Some states, such as California, allow more companies in a food chain to be targets for claims, with few limits on awards. Colorado law makes it harder to sue stores in addition to the producer where the defect started. Plaintiffs must show a retailer contributed to the flaw in the food.

  In the cantaloupe Listeria lawsuits, which numbered in the dozens, attorneys considered going after retailers for not demanding tougher farm audits, failing to test for pathogens themselves, and failing to wash the fruit one more time before sale. But grocery store owners say going after them is not entirely fair—it’s unreasonable to hold grocery stores responsible for the safety of every item on their shelves.

  “They have to rely on manufacturers to take care of that end of business and to make sure food items are ready for customer sale when they get them,” said Mary Lou Chapman, president of the Rocky Mountain Food Industry Association, which represents more than three hundred grocery stores in Colorado and Wyoming. Chapman supported the Colorado bill that would have protected grocers unless they caused the contamination, or knew it was there when sold.

  Yet some food safety advocates say it’s time for grocers to take more responsibility than that, especially with foods that cause repeated damage. Hamburger, unpasteurized dairy, spinach, cantaloupes, and other products have often been at the heart of dangerous outbreaks. “At some point, the grocery store has to make a legal or moral decision: ‘We’re not responsible for the food we sold these people,’” Marler said.

  The weight of responsibility finally grew palpable to everyone involved in the Jensen cantaloupe outbreak on a crisp, early fall day in downtown Denver in 2013, more than two years after harvested melons rolled through Listeria-laden water in a dusty farm shed. Eric and Ryan Jensen shuffled into a cavernous federal courtroom, shackled at the wrists, fourth-generation farmers whose alleged crime started with a seed planter. The brothers were advised of six misdemeanor charges each of introducing adulterated food into interstate commerce. Each count carried a possible penalty of up to a year in prison, and up to $250,000 in fines. They pleaded not guilty, but shortly after indicated they had reached a deal with prosecutors to enter a guilty plea. Days later, the Jensens sued their third-party auditor for failing to point out any of the problems investigators eventually found, a legal maneuver that promised an escalation of food safety fingerpointing for years to come.

  The Jensens declined to talk to reporters, as they had since a wire service photographer had found a bewildered Eric Jensen kicking at unharvested cantaloupe out in his fields, late in the summer of 2011. The Jensens’ attorneys emphasized at the courthouse that the brothers had cooperated with food safety investigators from the beginning, and they felt sorrow for the victims of Listeria.

  Jeni Exley watched the federal judge discuss bond conditions with the Jensens from her spot on a stiff, wooden bench near the back. Her father, Herb Stevens, and the contents of the family refrigerator had been a key link in the fast state investigation that led officials directly to the Jensens. Herb’s listeriosis led to two years in a nursing home, and his eventual death, but he was never listed among the thirty-three “official” deaths because of the long delay.

  Exley cried quietly outside the courthouse as the Jensens signed bond papers and hurried to a waiting car. “I wanted to humanize this for me,” she said. She had never seen the brothers, even in photographs. “I’m glad they were charged. I don’t think they did anything on purpose, but I think they had very sloppy farming practices.”

  The U.S. District Attorney’s charges against the Jensens quoted numerous FDA documents and experts in building the case. Five days later, the months-long feud among national leaders culminated in the first shutdown of the federal government in seventeen years. The FDA furloughed 45 percent of its staff, nearly all in food oversight, according to Food Safety News. The agency acknowledged its routine inspections of food operations in the United States would drop to zero—hundreds canceled every week—as long as the shutdown lasted. The CDC, meanwhile, had to send home nine thousand of its thirteen thousand employees. It soon brought back just a dozen—to help seek the source of a widespread outbreak of Salmonella in raw chicken.

  II

  How to Feed Your Family Safely and Sanely

  6

  Handle with Care (and Bleach)1

  Let’s call it “defensive eating.” The government, food producers, and food packagers all have their vital roles in delivering safer food to Americans, and other chapters in this book hold them to account. But food safety experts say consumers also have a responsibility in making sure the food they buy and serve is safe to eat. It’s like this: homeowners aren’t to blame if a burglar steals their jewelry, but police still warn people to lock their doors.

  The following pages can help you lock pathogens out of your kitchen.

  Some of the advice comes from the world of science. Safety experts, splashing and cooking and swabbing for bacteria in university test kitchens, are reconsidering some of the basic tenets of produce handling. The worst foodborne illness outbreak in modern times had the effect of scaring farmers, government inspectors, and home economists into faster action. Before the cantaloupe Listeria outbreak in 2011, many people thought nothing of grabbing a melon from the fridge and slicing right into it. Consumer advocates didn’t make a big deal about washing melons. Now, most people would at least rinse it before slicing, and food scientists say some people—particularly the very young, old, pregnant, or immune compromised—should wash a melon’s porous, pocked rind with soapy water, then pat it dry.

  Food safety advice is changing as the world grapples with illness outbreaks, not just from undercooked meat but from spinach, sprouts, tomatoes, and peppers. “It’s scary for those of us who give advice, because our world’s been rocked,” said Lydia Medeiros, a consumer food safety researcher at Ohio State University. “We want to give people good, honest, clear advice. And sometimes we don’t know.”

  Colorado State University was among the laboratories quickly taking the lead in researching safer growing and handling techniques for cantaloupes in 2011. The challenges range from the high tech to the mundane and show just how befuddled even the experts can get by a sudden new development. One of the early ideas discussed by CSU experts, in collaboration with colleagues in the cantaloupe industry, was a new sticker for every cantaloupe telling consumers to thoroughly scrub the netted rind, according to Marisa Bunning, assistant professor for extension and food safety at CSU. But stickers don’t stick to cantaloupes, for the same reasons the bumpy rind is a cozy home for pathogens such as Lister
ia.

  “What I’ve learned is that cantaloupes are a challenge, and we’ve got to readdress it,” Bunning said. “We don’t know what the best practices would have been to tell consumers to avoid becoming sick. That’s why we’ll set up experiments.”

  At an Ohio State University lab, researchers watched pathogens enter tiny pores on spinach leaves and then contaminate a dangerously large area of food. Then they wondered what that meant for an apple or pear that has rolled off the counter and bounced on the floor. The mushy, bruised part of the fruit is more likely to harbor bacteria, so it’s best to cut off not just the bruised section but also the area around it just to make sure.

  For cantaloupes and other produce with a rind or peel, researchers need to know more about whether pathogens use surface pores or scars to contaminate the fruit or are spread to the inside when a knife is drawn through the whole fruit. The research is tempered by the realities of life in American kitchens. It’s highly unlikely an eighty-five-year-old woman is going to hold a four-pound cantaloupe under running water for the long minutes it takes to scrub the whole surface.

  Although food safety experts are suggesting more vigilance and consumer responsibility, they warn against becoming obsessed. “We know that there is an inherent risk in all the foods that we consume,” said Therese Pilonetti, who manages the Colorado health department’s grocery-store-inspection unit. Use common sense, she urges. Even in Pilonetti’s line of work, where she hears the worst of what can go on in the farm-to-table food chain, she doesn’t bother bagging every item of produce when grocery shopping—she doesn’t want to waste so much plastic. She does make sure meat goes in a separate grocery bag from produce, and she washes down her kitchen with a bleach-water solution. She uses tap water and a scrub brush to clean fruits and vegetables.