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E. coli outbreak could result in lawsuits

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Law firms at opposite ends of the country are looking into the recent E. coli outbreak in the Rochester area.

Paul V. Nunes, a partner in the Rochester office of Underberg & Kessler LLP, said he met Monday night with the family of a local victim.

“We have been contacted by a young Rochester woman who was one of the ones who was hospitalized in this outbreak,” said Bill Marler of the Washington firm Marler Clark, a national law firm dedicated to representing victims of food poisoning. “I understand she was called by Wegmans. She purchased the product there, tested positive and the health department informed her she is part of the outbreak.”

The firms are investigating individuals who have potential legal claims stemming from the E. coli O157:H7 outbreak linked to a leafy green product packaged for Wegmans at State Garden Inc. of Chelsea, Mass.

Wegmans Food Markets Inc. on Friday issued a recall of approximately 31,000 pounds of Wegmans “Organic Spinach and Spring Mix” sold in 5-ounce (UPC 77890 16437) and 11-ounce (UPC 77890 16411) clamshell packages in the produce department of its stores in New York, Pennsylvania, New Jersey, Virginia, Maryland and Massachusetts between Oct. 14 and Nov. 1 due to possible E. coli O157:H7.

Paul V. Nunes

The product, according to the Wegmans release, is a blend of organic spinach and spring mix, that had been associated with 16 reported illnesses in New York state from E. coli O157:H7. As of Tuesday, the number had risen to 19 reported cases.

Wegmans reported it has worked closely with the New York State Department of Health and Department of Agriculture and Markets since learning that illnesses may be associated with the product.

Nunes said exposure to E. coli O157:H7 is serious. He said it starts with a diarrheal illness which may be accompanied by bloody stools. It can also progress to hemolytic uremic syndrome which can lead to kidney failure, coma, stroke and death.

“E. coli is not a walk in the park,” Nunes said. “We know that the illnesses have spread across five counties: Monroe, Niagara, Steuben, Wayne and Erie.”

He said at least 10 of the reported illnesses have occurred in Monroe County. Nunes said the early indication is that the product came from California.

Nunes monitors Food Safety News, a daily Web-based publication of Marler Clark, whose managing partner, Marler, called him last week.

The two have worked together since Marler learned about Nunes’ involvement prosecuting a claim where the federal government had been engaged in the experimental injection of plutonium into unknowing hospital victims dating back to the 1940s, including 11 in Rochester. The incidents came to light in 1995 when then-President Bill Clinton issued an apology.

“Bill Marler heard about my early involvement in those cases and called me and said ‘You’re my guy,” Nunes recalled. They have worked together on several Western New York-related cases since, including E. coli and salmonella.

“I think the interesting thing about the Marler office is this is as much of a public service as it is an outreach by a law firm,” Nunes said. “The people who benefit from reading the Food Safety News are not clients. They’re just average folks who want to know that they food they eat is safe.”

Jeff Jubelirer, a spokesman for State Garden Inc., said the company is working with the Massachusetts Health Department and the U.S. Food and Drug Administration.

“Obviously, we’re concerned,” he said. “There have been 19 reported illnesses, all within your area, all Wegmans. We’ve isolated it to that.”

He said the Massachusetts Health Department is investigating the State Garden plant in Chelsea to try to identify or confirm a link. He said the health department told the company it did not need to do anything further at this point, but that the company voluntarily issued its own advisory Friday, across the entire Northeast.

“People are sick and that’s scary and that’s bad, but we don’t want people to assume it has to be our plant,” Jubelirer said, noting the company gets lettuce from all over the country and processes and packages it for various customers, including Wegmans. He said the affected product has a “best buy” date of Oct. 23 and has been removed from store shelves.

“No one can buy this now,” Jubelirer said. “The thing we’re concerned about is that people still have it in their refrigerators.”

He added that no illnesses have been confirmed in relation to State Garden products; that the lots were limited to distribution only to Wegmans and only to the Rochester area.

Wegmans, according to its website (www.wegmans.com) advises anyone with the lots to throw them out. Refunds are available at its service desk. For more information, contact Wegmans Consumer Affairs at 1-800-WEGMANS (934-6267), 8 a.m. to 5 p.m. Monday through Friday.

“We bring formal proceedings against those who are at fault,” Nunes said, noting they rarely sue grocery stores. “You can’t possibly imagine that a retailer is going to test all the products on their shelves. The root of this problem is in the manufacturers and the suppliers.”

The most recent case the two firms worked on had to do with pine nuts sold at Wegmans last fall. Marler said there were 20 cases involving suits against the shipper and manufacturer of the nuts.

All have been resolved for undisclosed amounts.

He said food poisoning cases are strict product liability. Victims recover lost wages, medical costs, future medical expenses, and pain and suffering.

“This happens far too often,” Marler said. “The 2006 spinach outbreak was a huge wake-up call. The numbers of outbreaks have actually fallen off quite a bit in the last six years. Some companies started to do bacterial testing. Testing products is not foolproof, but a good snapshot of whether the process is cleaning a product properly. We’ll be interested to see if State Garden and the shipper were using testing protocols. The short answer is if more companies did more testing, we would see less outbreaks and less time talking to lawyers.”

Marler said he has issues with bag salads in general. He said mixing and matching leafy greens and washing them with other products spreads contamination. He recommends people buy spinach in bulk and wash it themselves, especially products consumed by old and young people and people with compromised immune systems.

“It keeps happening because we have underfunded efforts to keep our food chain safe,” Nunes said. “More and more products are being made quickly, there’s mass volume and products coming from multiple sources, including outside the United States.”

Nunes believes there should be more FDA inspectors and that food safety laws could be toughened to include criminalizing grossly negligent acts of individuals and corporations.

“Food safety has always been evolving in this country, but we need to recognize we still have a ways to go,” he said. “If you look at the statistics as to how many people are made sick or injured by tainted food and these same numbers are injured in Toyotas, we’d be taking the cars off the road and finding out what’s wrong and fixing the problem.

“Do we do a good job? Is food safety in the United States good? Yes. It is improving? Yes, but the question is can we do more? The answer to that question is yes.”

Noting that it was Election Day, Nunes said people need politicians and leaders who make food safety a priority. He said a lot of it comes down to money.

“People are saying it’s not enough of a risk,” Nunes said. “Someone is saying, ‘I’m accepting the risk that someone is going to get sick and I’ll pay those damages and it’s cheaper than making the system safer. It’s not a terribly sexy issue until something really bad happens. Why do we have to wait for something really bad to happen?”

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