I had the chance to chat Nov. 1 with Bill Marler, Seattle, Wash.-based lawyer the food safety law firm Marler Clark. Here is the first part of the conversation.
2:00 p.m. Tom Karst: Looking at the Food Safety Modernization Act, from your perspective as a food safety lawyer, does that law change anything about how you approach (food safety liability) cases? In your view at least, does it change who is responsible and who is liable compared to previously?
2:01 p.m. Bill Marler: From a liability perspective, there is nothing in the law that changes anything from who is more or less liable to the person who gets sick. There is no change that shift the burden from one entity to another entity as it relates to the person who gets sicks. But that doesn’t necessarily mean that what happens in litigation isn’t going to be impacted by the Food Safety Modernization Act. Frankly, if the Food Safety Modernization Act is implemented in full, in many respects like the Leafy Greens Marketing Agreement is implemented, what I think we hope we see, is frankly less litigation because we will see less people getting sick. And so, I’m hopeful that will have a bigger positive impact on the consumer. It might have a negative impact on my pocketbook, but it will have a positive impact on the pocketbooks of companies I would have otherwise sued.
2:02 p.m. Karst: You are involved with the (Jensen) cantaloupe case. What makes that case notable in your perspective. I know every outbreak is different in ways, but what are the unique things about this one that you see?
2:04 p.m. Marler: From a personal perspective - more so than from a legal perspective - it is just sort of stunning of the number of people who have died and the number who are still hospitalized. I think for me personally, I have spent so much time over the last couple of weeks talking to families of someone who died, the husband or wife of someone who died, or a young couple that has lost a baby, or families who are still watching their loved one in ICU going on eight or nine weeks. I think about this listeria outbreak is that I’m sort of stunned by the severity of the outbreak and that’s a hard thing to quantify. From a food safety perspective, I can’t say I was shocked by the outcome of the FDA inspection. Listeria likes cooler, wetter environment. When you are looking at eastern Colorado and cantaloupe growing, and cooler wetter environments only make sense inside a packing house. So I guess I wasn’t shocked by the FDA’s findings of positive samples and bad practices. Most outbreaks I have seen in 18 years of doing this are caused by people doing bad practices, doing things that frankly they all know they shouldn’t do but they do them anyway or they are not paying attention to details. I think that is what you got here.