Crusading for safe food

SEATTLE -- You might say that E. coli has been very good to William Marler.

Ditto for salmonella, listeria, hepatitis and the like. If there's an outbreak of foodborne illness anywhere in the country -- spinach, cookie dough, hamburgers, you name it -- chances are Marler will be filing lawsuits.

"I love my job," the Seattle lawyer says. "I represent poisoned little children against giant corporations."

Talk about a winning formula. Marler, 52, says he and his firm, Marler Clark, have pried $500 million in settlements out of companies that have sickened customers. Depending on your point of view, making millions of sick people may be a good thing or it may be a bad thing. But right now, food safety is unequivocally a big thing.

In March, President Obama said the nation's lax food-safety policies have created a "hazard to public health." He appointed a high-level policy group to "upgrade our food safety laws for the 21st century." Then a major report warned it would be way too easy for terrorists to poison the food supply.

In the midst of all of this, 80 people were infected with the bacteria E. coli after eating Nestle cookie dough.

This year, food safety legislation was introduced in Congress -- legislation that, for the first time in years, seems to have a chance of passing.

Wear it on a T-shirt

Now, Marler's not only trying to wring money out of food companies, he's trying to change the way our food is safeguarded in the first place. He's been lobbying his political buddies, arranging for clients to testify in Congress and even sending them to reporters at The Washington Post and The New York Times, both of which put his clients' E. coli ordeals on the front pages.

"I'm impatient," he says. "For God sakes, get the bill out of the Senate."

And then, in early fall, he hit upon an idea: T-shirts.

"Pass meaningful food safety legislation before Thanksgiving," the drab gray shirts, sent to every U.S. senator, say.

"Put a trial lawyer out of business."

His smiling face, with a line through it, is emblazoned on the front.

It's funny. And it's serious.

Brianne Kiner was Marler's introduction. In 1993, when the 9-year-old Redmond, Wash., girl was hospitalized with E. coli infection, her kidneys failed. Her pancreas crashed. Her liver stopped working. She suffered seizures and was in a coma for 40 days.

When she came to, she had to relearn to walk. To chew. To use the bathroom. Her health problems -- and expenses -- are lifelong.

All this from eating an undercooked hamburger from Jack in the Box. Three kids died in that outbreak, and another 500 Washington residents were sickened.

Brianne's family hired Marler, who then was with the Keller Rohrbak firm, to file suit. He had been out of law school for just five years.

Some call him a publicity hound. Marler calls it fighting fire with fire. Jack in the Box had a media strategy, and so did he. He figured, the more public the outbreak was, the more likely Jack in the Box would cave. With the family's blessing, he helped put Brianne's plight on the national news.

The firm was hired by 200 other families to file claims against Jack in the Box, too.

Marler got Brianne a $15.6 million settlement. Settlements for his other Jack clients ran into the millions. (Generally, clients get 65 percent to 75 percent after costs, and the firm gets the rest.)

After Jack in the Box, he went back to being a general-practice plaintiff's lawyer. Then, in 1996, came Odwalla. The all-natural juice company sickened 66 people with its unpasteurized juice. Considering the hubbub around Jack in the Box, victims knew where to turn.

By this point, Marler knew the system to protect us from foodborne illness is full of holes. Regulations are a hodgepodge; oversight authority is scattered between the U.S. Department of Agriculture and the Food and Drug Administration.

Who's responsible?

Generally, the government deems it the food companies' responsibility to make a safe product. For example, FDA does not require food processors to test for pathogens; the company can decide whether to do it, according to The Pew Charitable Trusts, which is pushing for tougher regulations.

For meats, USDA can inspect, but it has limited power to close plants or order change. And while it's illegal, for example, to sell hamburger that tests positive for E. coli 0157, a particularly virulent strain, food processors aren't required to test for it in their finished products.

This untested meat nonetheless gets stamped with a USDA label and sold to consumers.

"I think our government is as complicit in the process as the companies are," Marler says.

The scariest part? Just a few cells of E. coli in your food could put you through what Brianne went through.

The Centers for Disease Control and Prevention estimates that 300,000 Americans are hospitalized and 5,000 die from foodborne illnesses each year. Some 76 million are sickened.

Back during the Odwalla outbreak, however, there wasn't as much awareness of the issue. But after that, Marler had a hunch. In 1998, he recruited his former Jack in the Box legal adversaries, Denis Stearns and Bruce Clark, and started a law firm that specialized in food-borne illnesses -- a radical idea at the time.

Today, they have clients all over the country. Media coverage helps, but the lawyers also were early in recognizing the power of the Internet. They not only set up a Web site for the firm, they also created sites with comprehensive medical information on every conceivable foodborne illness -- and included links back to Marler Clark.

After all, sitting at the bedside of an ailing loved one tends to focus the mind. What is this illness? And how can I possibly afford the medical care? If you Google E. coli -- or listeria, or salmonella or even foodborne illness -- you'll find a Marler Clark site in the top 10 hits.

They do not accept every case. The firm first has to pinpoint the cause of the illness -- a particular lot of ground beef, an ingredient in a restaurant meal. That process can take months, and like most plaintiff's firms, it bears the costs upfront. If the firm can't make a positive match, it declines the case.

Some say Marler's no trial lawyer. In fact, he's tried just one E. coli case through to a jury verdict. It went in his favor. The vast majority of the firm's cases settle.

Of course, the law of "strict liability" is on his side. If a customer gets sick, whoever made the tainted food is financially liable, whether or not they were negligent.

This, of course, strikes the food industry as unfair.

Making enemies

"There's plenty of people in the meat industry who, if they looked in the rearview mirror and saw they accidentally ran over Bill Marler, they'd put the car in reverse and make sure," says David Theno, a food safety expert hired to revamp Jack in the Box after the outbreak.

Theno, it should be noted, considers Marler a friend.

He's been called an "ambulance chaser." A vulture who "thrives on misery."

Marler loves it.

The task of finding real-live Marler haters, however, proved difficult. Some likely candidates, such as people in the spinach industry, who he's sued, declines to comment; others, such as Rosemary Mucklow, director emeritus of the National Meat Association, have nice things to say, despite all the lawsuits (and the rank-and-file's failure to clap).

Which brings us back to his oft-repeated plea: Put me out of business. What he really means is he's tired of seeing so many people get horribly sick. He thinks a lot of illness could be prevented with stricter food safety laws, the sort Congress is considering.

Next step

Some time ago, he decided that just suing food companies wasn't enough. He travels across the country, and even the world, to speak about food safety to those who are in a position to do something about it -- the farmers, processors and officials in charge of it all.

He tells them about his clients: the children on ventilators; the once-vibrant men on dialysis; the moms who've lost their intestines to the ravages of foodborne pathogens. And he lets them know how a jury might view things.

Marler calls it the "You shouldn't poison people" speech.

Meanwhile, Marler is working on another angle. He wants to become the undersecretary of agriculture for food safety, a job for which he's applied, and for which former Washington Gov. Gary Locke, now Obama's commerce secretary, floated Marler's name.

"My wife has said, 'I don't think you have the patience for it,'" Marler says. "And maybe that's ultimately true. But when you know you're

right. . . ."