Defending Food Safety : Food Safety Defense Lawyer & Attorney : National Food Industry Counsel : National Food Regulatory Lawyer and Attorney, FDA Lawyer and Attorney. USDA Lawyer and Attorney : Gass Weber Mullins Law Firm

Our food safety lawyers work with food companies nationwide, helping them avoid risk, prevent litigation, manage recalls and defend high profile foodborne illness outbreaks and claims. 

Over the last decade, the firm has assisted food companies throughout the country on a wide-range of food safety matters involving regulatory compliance, crisis planning and management, and outbreak litigation.

During this period, the firm has defended food industry clients against high-profile foodborne illness outbreak claims in more than 2o states throughout the country (including Arizona, Arkansas, Alabama, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Wisconsin). These have included outbreaks and claims involving a wide-range of foodborne pathogens, including E. coli O157:H7, Campylobacter, Clostridium Perfringens, Norovirus, Salmonella and Staphylococcus.  The firm's food safety team also assists clients with crisis management and other issues in advance of and following major food product recalls.

Shawn K. Stevens, a member of the firm's food safety team, is one of the only lawyers in America who dedicates his practice entirely to representing the food industry. 

Mr. Stevens counsels food industry clients throughout the country (including some of the nation’s largest food producers, national restaurant chains, and several food distributors and grocers) on a wide-range of food safety regulatory and liability issues.  Mr. Stevens works closely with clients to identify and appropriately manage risk, plan and prepare for possible crises, and also respond to governmental enforcement actions and recalls.  Mr. Stevens also defends industry clients against high-profile foodborne illness outbreaks and claims. Mr. Stevens has additional, wide ranging experience counseling clients in commercial, insurance and medical malpractice disputes.

In addition to his legal practice, Mr. Stevens also speaks regularly to national and international audiences on issues relating to food safety, regulatory compliance, crisis management, and foodborne illness outbreaks, recalls and lawsuits.  Mr. Stevens also serves as a weekly contributor to Meatingplace (as the author of its newest “Legally Speaking” Blog), writes a dedicated monthly food safety column for the National Provisioner, and is a regular contributor to Food Quality Magazine.

Mr. Stevens has also been recognized by his peers as a Wisconsin Super Lawyer Rising Star, and was recently selected as one of Milwaukee's 2011 "Forty Under 40." 

Ralph A. Weber, Ralph A. Weber has represented clients in several of Wisconsin’s highest profile lawsuits over the past several decades, and currently litigates for one of the world’s largest companies in food safety cases throughout the United States. His trial experience includes many lengthy jury and court trials. His appellate experience includes multiple oral arguments before the Wisconsin Supreme Court and intermediate appellate courts.

The prestigious international lawyer reference, Chambers Guide-USA, identifies Mr. Weber as a top commercial litigator. He also has been recognized by his peers through selection to Best Lawyers in America, Wisconsin Super Lawyers, and has been selected one of the Best of The U. S.’s list of “Best of Class” service providers in the United States.

An Adjunct Professor at Marquette University Law School, he taught Trial Advocacy for 15 years, and created a jury research and courtroom facility, the Trial Science Institute. In addition to speaking about litigation subjects, Mr. Weber co-edited a best selling book, Dear Americans: Letters from the Desk of Ronald Reagan (Doubleday, 2003).

Mr. Weber served on the Law Review at Columbia University Law School, graduating in 1982, and then served as a Law Clerk for the Hon. Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit. He graduated summa cum laude from Marquette University in 1978.
 

Amelia L. McCarthy, a member of the firm, specializes in general commercial, health care, food and product liability litigation.

She also currently serves as a Municipal Prosecutor for a Wisconsin community and has served as a Public Service Special Prosecutor for the Dane County and Milwaukee County District Attorney's offices. 

Throughout the course of her career, Ms. McCarthy has tried over 50 court and jury trials. She also successfully defended four class action lawsuits, obtaining three dismissals with prejudice and one nuisance value settlement without having to proceed through class certification.

Ms. McCarthy has been recognized by her peers through selection to Wisconsin Super Lawyers and was recently named one of Milwaukee's Top "40 under 40" business leaders.

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It is no small secret that our collective survival depends, quite literally, on the food we eat.

The availability and affordability of food has a direct impact on our individual health, along with (if we work in the food industry) the success and longevity of our careers. Indeed, if we produce food for others, the quality of the food we market and sell also affects our individual ability to provide for and feed our families. In this regard, every one of us (no matter how large or small our role may be) has an interest in making sure that the food we produce (and, ultimately, consume) is the safest it can possibly be.

To date, we’ve done an excellent job. Nevertheless, despite our best efforts, the existence of naturally occurring pathogens in our environment – and by extension in many foods – remains a real part of our business and lives. Given the limitations of science and, in no small part, consumer behavior, no one is immune. Every month, for instance, approximately 6,000,000 Americans will develop some type of food-borne illness. This also means that – each year– nearly one in every four Americans will be affected. Of these, approximately 325,000 individuals will be hospitalized, and nearly 5,000 could die.

And, no matter how much we care about food safety, this trend is not only likely to continue, but will likely accelerate. Given recent and substantial improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported. By extension, these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

This resulting increase in reported outbreaks, along with a corresponding increase in media coverage, has also affected public and governmental interest in food safety. The politics of food safety, of course, translates exponentially into more regulation and a significant increase in food litigation. Thus, if your company has not yet faced a food-borne illness claim, chances are in the short term it will. Additionally, for this reason, businesses should begin contemplating how to best position themselves (from both a food safety and liability standpoint) to anticipate future problems, reduce company exposure, and react appropriately when an alleged food-borne illness or outbreak does indeed occur.

Not all food-borne illnesses claims, however, have merit. As noted, as a direct result of the growing public and political awareness in food safety, we have also witnessed an explosion in food-borne illness and outbreak litigation. In turn, we also know that, because of limited resources and other reasons, some outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. In these and other cases, many claimants (and their attorneys) continue to sue the wrong party.

Thus, here too, it is critical that food companies understand how food-borne illnesses are tracked, identified and confirmed, what to expect in a food-borne illness investigation, how to respond during an outbreak or recall, how to react when confronted with a potential claim, and how to properly defend their business and reputation when lawsuits are ultimately filed.

In any event, this is why we are proud to offer our Advance Series on Managing Food-borne Illness Outbreaks and Claims. For nearly a decade, our food safety team has helped food companies across the nation prevent litigation, manage crisis and defend claims (both meritorious and non-meritorious allegations). In the coming weeks and months, this series will provide additional and timely insight on what food companies can do to anticipate risk and reduce potential exposure, to effectively respond to and manage food-borne illness outbreaks and claims, and to effectively defend food-borne illness litigation and lawsuits when they do, indeed, occur.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of the incredible efforts hard working Americans to provide safe and affordable food to our families, we feel inclined, when lawsuits overreach, to protect and defend yours.

Again, thanks for a job well done. And, welcome to www.defendingfoodsafety.com.

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• Return to Defending Claims.

Each year, approximately 325,000 Americans are hospitalized with a food-borne illness. As a result of improved governmental surveillance, more outbreaks are being identified and more people are bringing claims.

Unfortunately, however, most outbreak investigations fail to identify the real culprit, and some even identify the wrong source. In many cases, the claimants (who mistakenly think they got sick from “the last thing they ate”) sue the wrong party.

Given current trends in surveillance and a resulting increase in litigation, it will be essential for any company faced with potential or threatened food-borne illness claims to gain, at the very least, mastery of the following information:

• How food-borne illnesses are tracked, identified and confirmed;

• What to expect in a food-borne illness investigation;

• How to respond during an outbreak or recall;

• How to react when confronted with an alleged claim; and

• How to properly defend your business and reputation when lawsuits are filed.

Thus, we are proud to offer our food safety litigation library.  Through the advice and knowledge contained within the following chapters, you too can discover the information you need to defeat, or fairly resolve, food-borne illness claims.

Copyright 2009 by Shawn K. Stevens

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So, here we go again. Thinking about food rather than eating it. But, that's okay.

Because helping food companies decrease the risk of potential litigation, finding the real source of an outbreak (when it does occur), helping a faultless company avert a crisis, working to extract an innocent food producer from a stray investigation, or simply proving decisively before trial that a food-borne illness claim lacks all merit, is well worth the small sacrifice of delaying a meal.

For nearly a decade, we have worked nationally with food companies and food safety professionals preventing litigation, managing outbreaks and defending claims.

During this period, we have observed (first hand) what really happens inside our processing plants, grocery stores and restaurants, and are here to proclaim, without hesitation, that we are proud to eat the food you make. Additionally, while our food safety system may never be perfect, it is extremely well suited to identify problems when they arise, to encourage quick and effective solutions, and to help ensure that our food supply remains one of the most plentiful, affordable and safest in the entire world.

Thank you for a job well done!

Welcome to www.defendingfoodsafety.com.

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According to reports, Congress will likely hold public hearings on the ongoing salmonella outbreak and recalls.  Representative Henry Waxman (D-California) stated recently that the hearings, anticipated within the coming weeks, will likely focus on the Blakely, Georgia facility owned and operated by the Peanut Corporation of America (“PCA”).

As the FDA continues its investigation into the ongoing outbreak, early reports have suggested that salmonella was isolated, on various dates in 2007 and 2008 from certain PCA products, by private labs PCA employed for routine testing. These reports have also indicated, however, that subsequent testing resulted in negative findings.  Because the specific protocols followed by PCA and the labs in question (along with the specific circumstances surrounding the sampling and testing of such products) are not yet fully understood, all parties will need to wait for the investigation to be completed before any final conclusions can be made regarding the ultimate merits or implications of these reports.  Additional information may also be learned from the proposed hearings, during which it is anticipated that representatives of PCA and the laboratories in question may be called to testify.

On Wednesday, January 28, 2009, PCA expanded its initial recalls (announced on January 13, 2009 and January 18, 2009 respectively) to include additional products produced at the facility since January 1, 2007 (see our reports below).  For continuing updates regarding the growing list of products affected by the expanded recall, please visit the FDA Peanut Butter Recall Website.  The American Peanut Council has also published a list of products reportedly not affected by the ongoing recalls.

To date, more than 500 people may have become sick, and as many as eight people may have died, in connection with the ongoing outbreak.  Although most of these illnesses are presumed to be associated with peanut butter, not all cases may be directly linked.  Early reports have indicated that at least one person from Wyoming (who was carrying the outbreak strain) did not appear to have any known exposure to peanut butter products.

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Beginning in August and September 2008, a few, sporadic cases of Salmonella Typhimurium started to appear on the CDC PulseNet radar screen.  This was not unexpected, as numerous cases will exist at any given time throughout any given year. Through October and November 2008, however, the number of cases believed to be associated with this pathogen began to increase. Using Pulse-Field Gel Electrophoresis (“PFGE”) testing of culture-confirmed isolates (taken from various stool samples), the CDC determined that many of the newly-reported cases appeared to be related. In turn, these findings led to the first national case-control study, conducted on January 3 and 4, 2009, associated with the outbreak (learn how food-borne outbreaks are tracked).

According to the CDC, preliminary analysis of the study led investigators to suspect that peanut butter was a likely source of the outbreak. Following the preliminary findings, the Minnesota Department of Agriculture then began testing various peanut butter products, and eventually reported it had isolated the outbreak strain from an open 5-pound container of King Nut creamy peanut butter.  On January 10, 2009, after test results were shared with King Nut, it immediately initiated the first voluntary recall of peanut butter in the investigation.  Soon thereafter, the Connecticut Department of Public Health reported that it had isolated salmonella from an unopened 5-pound container of King Nut peanut butter. According to officials in Connecticut, the salmonella found in the container also appeared, by PFGE, to match the outbreak strain.   

Relying on trace-back efforts, investigators discovered that the King Nut peanut butter at issue was manufactured by the Peanut Corporation of America (PCA) in Blakely, Georgia. These preliminary findings prompted PCA, on January 13, 2009, to initiate the second voluntarily recall in the investigation - this recall included various peanut butter and paste products produced at the facility after July 1, 2008 (as additional information was developed and shared by investigators, this initial recall was later expanded on two occasions). Although these products were not sold directly to consumers, they had been distributed to numerous institutions, food service providers, food manufacturers and distributors.  In turn, because some of these products were also reportedly used, in part, as ingredients in other products (including cookies, crackers, cereal, candy, ice cream, pet treats, and other foods), additional precautionary recalls followed.  The following list outlines the progression of the subsequent voluntary and precautionary recalls (and, some expanded recalls), as industry worked very closely with the CDC and FDA to determine what raw materials and products could potentially be affected:

Friday, January 16, 2009:  

• Kellogg Company (Select Austin® and Keebler® Branded Peanut Butter Sandwich Crackers, and Select Snack-Size Packs of Famous Amos® And Keebler® Soft Batch Peanut Butter Cookies); and
• Peanut Corporation (First Expanded Recall of Peanut Butter).

Saturday, January 17, 2009:

• Hy-Vee Inc. (Select Bakery Products With Peanut Butter);and
• Perry's Ice Cream Company (Select Peanut Butter Ice Cream Products).

Sunday, January 18, 2009:

• McKee Foods Corporation (Select Little Debbie® Peanut Butter Toasty and Peanut Butter Cheese Sandwich Crackers);
• South Bend Chocolate Company (Various Candys Containing Peanut Butter);
• Ralcorp Frozen Bakery Products (Select Food Lion Bake Shop Peanut Butter Cookies);
• Ralcorp Frozen Bakery Products (Select Lofthouse Peanut Butter Cookies, Chuck's Chunky Peanut Butter Cookies And Pastries Plus Gourmet Cookies);
• Ralcorp Frozen Bakery Products (Select Wal-Mart Bakery Brand Peanut Butter Cookies); and
• Peanut Corporation of America (Second Expanded Recall of Peanut Butter).

Monday, January 19, 2009:

• Meijer (Select Meijer Brand Peanut Butter Crackers and Ice Cream);
• Abbott Nutrition (Select ZonePerfect® Chocolate Peanut Butter Bars, ZonePerfect® Peanut Toffee Bars and NutriPals™ Peanut Butter Chocolate Bars);
• Kroger (Select Ice Cream Products);
• Clif Bar & Company (Select CLIF® and LUNA® Branded Bars Containing Peanut Butter);
• Evening Rise Bread Co. (Select Peanut Butter Cookies and Bars); and
• General Mills (Select LÄRABAR and JamFrakas Peanut Butter Snack Bars).

Tuesday, January 20, 2009:

• Country Maid (Select Classic Breaks® Peanut Butter Cookie Dough);
• Nature's Path (Select Peanut Butter Optimum Energy Bars);
• PetSmart (Select Grreat Choice® Dog Biscuits);
• Ready Pac Foods, Inc (Various, select products);
• Premier Nutrition (Select TWISTED and TITAN Branded Bars);
• Boca Grande Foods (Select POCO PAC®, and GRANDE GOURMET™ Peanut Butter Products);
• Dinners Ready Meridian (Select Asian Marinated Flank Steak, Indonesian Chicken and Chicken Satay Prepared Meals);
• Weis Markets (Select Weis Quality (WQ) Cheese Peanut Butter Sandwich Crackers and WQ Toasted Peanut Butter Sandwich Crackers);
• Nash Finch (Select Bakery Products With Peanut Butter); and
• Kroger (Additional Select Ice Cream Products).

Wednesday, January 21, 2009:

• NutriSystem (Select Peanut Butter Granola Bars);
• Blanton's Candies (Select Peanut Butter Sticks);
• Landies Candies Co. Inc (Select Peanut Butter Filled Chocolates);
• Lovin Oven, LLC (Select Health Valley Organic Peanut Crunch Chewy Granola Bars);
• Best Brands Corp. (Select Peanut Butter Frozen Cookie Dough); and
• Chef Jay’s Food Products (Select Cookies, Bars and Brownies).

Thursday, January 22, 2009:

• Aspen Hills, Inc. (Select Cookie Dough Products);
• South Bend Chocolate Company (Expanded Recall of Select Candy Containing Peanut Butter);
• Rain Creek Baking Corporation (Product Withdrawal of Select Peanut Butter Turtles, Baskets and Princesses);
• General Nutrition Centers, Inc. (Select GNC Triflex Peanut Butter Soft Chews);
• Perry's Ice Cream Company (Expanded Recall Of Select Peanut Butter Ice Cream Products);
• Jimmy's Cookies (Select Peanut Butter Cookies);
• Arbonne International (Select Figure 8 Peanut Butter Chews);
• Parker Products, Inc. (Select Peanut Butter Cups And Other Products); and
• Trader Joe’s (Select Trader Joe’s Peanut Butter Chewy Coated & Drizzled Granola Bars, Nutty Chocolate Chewy Coated & Drizzled Granola Bars and Sutter’s Formula Cookies).

Friday, January 23, 2009:

• Brent and Sam’s (Select Sam’s Choice Brand Cookies);
• Brent and Sam’s (Select Archer Farms Brand Cookies);
• Amway Global (Select NUTRILITE Energy Bars); and
• Whole Foods Market (Select "Whole Foods Carob Energee Nuggets”).

Saturday, January 24, 2009:

• ShopRite (Select ShopRite Peanut Butter on Toasty Crackers and ShopRite Peanut Butter and Cheese Cracker Snacks).

Although the list of precautionary recalls has been extensive (and could still increase as new information is discovered and shared by investigators), it is important to recognize that all of the recalls were voluntary, and most were precautionary. Although many of the recalled products likely did not carry the bacteria at issue, most recalls were nevertheless announced in an abundance of caution because, at the very least, the possibility was there. Additionally, as to those samples in which the pathogen was isolated, there is a good chance that the bacteria was not evenly distributed; thus impacting only limited products, but not others. For this reason, all parties will need to wait for the investigation to conclude to determine whether only a very few or potentially more of these products actually carried trace elements of the pathogen at issue.

Additionally, as an aside, you may recall that we reported (early on) that at least one American staple - Girl Scout Cookies - was not in any way associated with the ongoing outbreak and recalls.  To learn more about additional products not implicated, please visit the American Peanut Council, which has published a (still growing) list of peanut butter products and brands NOT affected in any way be the current recall.   

In the coming days, we will of course continue to watch and report as this investigation winds down.  We anticipate this will likely be soon, as illnesses associated with the outbreak appear, at this point, to be declining.  For this and many other reasons, we also once again express our gratitude to both industry and public health officials, scattered throughout the country, working collectively to bring this outbreak and investigation to its closure.  
 

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