Food Safety Counsel : 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 comply with complex food safety regulations, decrease their food safety risk, prevent unwanted litigation, manage recalls exceptionally quickly and defend high profile foodborne illness claims -- when they do occur. 

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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In many food-borne illness cases, a winning defense begins long before a claim is actually filed.

Whether you are a food manufacturer, processor, distributor, grocer, restaurant or franchisor, there is a strong possibility you will become aware of illnesses potentially linked to your business or product soon after they are reported to state and federal investigators.

Thus, when faced with an alleged food-borne illness or outbreak, it is essential that you immediately understand the full nature of the investigation. Once an illness or outbreak is identified, you should immediately retain competent counsel who can work closely with state, local and federal agencies to, at the very least, accomplish the following goals:

• To directly assist investigators, where appropriate, during the course of the investigation;

• To determine, while assisting in any ongoing investigation, whether your product is (or is not) likely involved with the alleged illnesses or developing outbreak;

• To help quickly define (if your product will likely be implicated) the particular product involved along with the parameters of any potential voluntary recall;

• To prepare and refine appropriate responses (with an eye toward future litigation) to any formal requests from governmental agencies for production information, distribution records and/or proposed corrective actions;

• To track, in real time, the identification of existing and potential future illnesses and claims (this will likely pay significant dividends when such claims are later threatened or filed); and

• Based upon the information developed during the course of the ongoing investigation, to articulate appropriate responses to media inquiries.

Assuming that your company is well positioned at the outset of an investigation, you may be able (through your own internal efforts) to help establish that your product or business is not associated with the outbreak being investigated. Alternatively, if your product is likely implicated, aggressively tracking real time information will allow you to maintain a complete picture of the developing investigation, play an active role in the investigation itself, take immediate and productive corrective actions, if necessary, respond appropriately to media, and begin to develop a response to claims (whether meritorious or not) which will likely later result.

In this regard, focusing early on potential future claims will also pay huge dividends when litigation is later threatened. The information learned in the early stages of an investigation will in many cases allow you to understand, at the outset of an event, the true scope and nature of potential illnesses. In turn, once emerging cases can be pinpointed geographically, additional research can be performed to learn more about the circumstances surrounding each potential claimant. Using contacts established early on with governmental investigators, internet databases and other resources (such as media reports and hospital-facilitated patient websites), it may also be possible to track closely the progress and recovery of potential claimants as well.  Here too, if these potential claimants have already been identified and nature of their illness fully understood, false allegations when claims are later threatened or filed (i.e, the exaggeration of an injury or the understatement of an excellent recovery) can be quickly distinguished and separated from potentially meritorious or more serious claims.

Additionally, as noted, your company must also immediately consider how you wish to present yourself in the media.  A company spokesman should be selected, keeping in mind that this person will likely be deposed and/or his remarks used at trial. It may also be appropriate to have your lawyers respond to press inquiries, especially if you are responding to a statement by a plaintiff’s attorney. A press release that includes quotes on behalf of the company can also work, and may be the most prudent course in rapidly evolving circumstances where much remains unknown. In all events, it is necessary to have in mind what the company’s themes will be at trial, so that early statements will be consistent with arguments that may be made months and years later. Additionally, assuming your company has cooperated fully with governmental investigators throughout the course of an investigation, any statements issued by the government will likely be favorable to your company, and may also (at least implicitly) adopt some of these themes as well.

Once press releases are issued, expect to see significant press coverage and blog entries on the leading plaintiffs’ lawyers’ sites, including www.marlerblog.com. Because the FSIS provides email alerts about recalls, very little time passes between the press release itself and its appearance in the press and on the web. Claims and lawsuits, legitimate and not, of course follow promptly.

Alleged illnesses, outbreaks and recalls can be managed effectively, assuming that you and your company aggressively look for ways at the outset of an investigation to help governmental investigators solve the problem.  In the future, we will continue to offer advice from past experiences on how to best manage potential outbreaks and recalls.

While no two cases are the same, it is essential to remember that an effective defense begins the moment any potential illnesses and outbreaks are identified. 

Copyright 2009 by Shawn K. Stevens

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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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