Food Safety and Accountability

Over at the Ethicurean this weekend, there was a long post regarding Bill Marler, a prominent lawyer who has made his name (and fortune), suing food companies for selling food contaminated with E. coli and other pathogens. I don’t know much about Marler’s history, so I can’t say if his interest in food safety is anything other than a convenient professional venue, but he has been litigating these cases for fifteen years. The Ethicurean post was related to his December 30 post regarding what he considers the coming Food Safety challenges this year.

To be fair, I do agree with some things that Marler feels are important. Depending less on global production of food stuffs, poor funding for food science, environmental impact of food production, lack of pet food standards, and so on. However, Marler also specifically targets farmer’s markets and CSA organizations.

Outbreaks linked to local food and/or farmer’s markets. Community Supported Agriculture (CSA) groups and food co-ops need to demonstrate knowledge and practice of food safety, and be inspected. In addition to produce and meats/fish, prepared items are currently unsupervised.

Okay, I don’t know about the markets Marler visit, but I know that at my co-op the take food safety seriously (and I’m pretty sure they receive regular health department inspections), and at the Farmer’s Market, nearly all the vendors are professional caterers, and I’ve never seen anything dangerous. That may just be my experience, but frankly, I’ve seen far less sanitary conditions in normal restaurants.

My problem with Bill Marler is that he doesn’t exercise discretion. On Ethicurean he once commented that “if I have a legitimate client sickened by a food product, it frankly does not matter if the manufacturer is Con Agra or Mom and Pop. A child who suffers kidney failure or death certainly does not care who poisoned them.”

There is truth to that, and if I had a child suffer from Listeria poisoning and die, I would be distraught. I would be angry. I would be looking for fault. But the question everyone one of us (including lawyers like Mr. Marler), comes from that definition of fault. Every single action we partake in, including eating, bears with it a certain element of risk. Contamination and outbreaks will happen. This is a fact of life (and one that I suspect Mr. Marler’s bank account depends on).

At just as much of a risk is the fact that when we find ourselves ill, we generally just wait until it passes. My wife and I both got fairly ill during the Christmas shopping season the day after our final day of shopping. We both sincerely suspect it was the dinner we’d had at the Qdoba (though proving that is difficult), and we were both fairly ill for a day or two. It passed, and we’re both fine, but had illness been the precursor to something more serious, our decision to do nothing about it at the time may have proved fatal. Even if we had gone to a doctor, the doctor may likely have prescribed the same course of action we were already taking (though it’s possible a blood test would have been performed).

Let’s say, hypothetically, that we had gotten worse, and one or the other of us had died from food poisoning. Who would be at fault? The purveyors of the burritos? The distributor who sold them the food stuffs which poisoned us? The producer who sold said foodstuff to the distributor? Perhaps the doctor who failed to diagnose us in time?

Food Safety is important, I am in no way denying that. People preparing food should wash their hands. Kitchens should be cleaned regularly. Animal carcasses should be cleaned of their own filth before butchering begins. However, just because a bad thing happened, doesn’t mean that there is negligence.

Ethicuean Writer Ali tells the story of a Massachusetts Dairy Farm which had a listeria outbreak which left three adults dead (and led to one miscarriage). Immensely unfortunate. Marler represented one of the affected families in the lawsuit which followed the outbreak, and now that dairy is no longer operating. The real shame here, is that apparently the evidence was that the dairy was doing all they could to ensure a quality product. They genuinely cared about the health of the animals, fed them well, and once the outbreak occured they worked hard to mitigate the impact.

And yet, they are now closed, unable to continue operations after the suits filed against them. This was an unfortunate happening. There is absolutely no doubt of that, but was it really worth putting that small dairy out of business? That was probably a dairy that you could go visit, see exactly how the animals lived before you bought any of their products, and I’m sure the people would have gladly shown potential customers around. Contrast that to larger operations, who operate in secrecy, and respond slowly even after problems with their products are discovered to be tainted.

These small producers genuinely care about what they produce. The producers at our farmers market know many of their customers, if not by name at least by face. If I got sick, and my illness was traced back to one of those producers, they would likely respond personally. They would claim responsibility, and they would try to prevent it from happening again.

Every time I open my mouth, I’m taking a risk. Whether what I’m about to eat is from our friendly farmer’s market, our own garden, or some industrial producer who’s source I’d have difficulty tracking down, that risk is everywhere. But what we should be looking for before we sue, and this applies not only to food safety but all aspects of life, is fault. Intent. Did they knowingly (either out of ignorance or lack of concern) operate in a fashion that raised the risk of illness? Then perhaps there is fault to be examined. But if a producer genuinely tries to operate in a manner conducive to producing a healthy product, and lessens the contamination vectors by exercising reasonable methods (ie, proper cleanliness, keeping un-composted feces away from fields and so on), is the level of fault (and it’s not fair to say there is no fault) such that a lawsuit is even reasonable?

Ethicurean Ali ends her post (which, looking back mine is awfully similar to) talking about how she generally likes Bill Marler, and that she feels he is a great hope in the fight for food safety. A part of me wants to agree with her, but I’m not sure I can. Bill Marler, appears to me, to be among the worst kind of personal injury attorneys. Targeting anyone he thinks he can get away with, focusing on clients which a jury is likely to get emotionally involved in (like children) which can lead to greater judgments. Admittedly, Marler has done work which has held a lot of negligent producers accountable. His stance that the meat packing industry needs to hold higher standards of sanitation, I completely agree with. But his statements on Ehticurean and elsewhere, and parts of his own litigation record, suggest to me that food safety concerns would be far better served by an individual that cared more about reasonable standards than suing anyone who has accidentally poisoned someone, regardless of their efforts to prevent food-borne illness.

Update: I have reread the above, and traded a few comments with Mr. Marler on Twitter. Considering how the above reads, he’s been very polite, inviting me to call and discuss the issue (as of this writing, I have not done so). I want to reiterate what I said above, but which was masked behind some of my other statements: Bill Marler has done a lot of good for food safety. He has done a lot to take on the meat packing industry, particularly with their attitudes that we should just cook the hell out of their contaminated meat. I agree wholeheartedly with this, and my knowledge of certain cases (such as the dairy case discussed above) is certainly less than Mr. Marler’s, though I still disagree with that particular action.

Food Safety is a complicated issue, and I do not wish to imply that the issue is solely the realm of the consumer. Producers should be held accountable. It in on the level of accountability which is reasonable where I suspect I disagree with Mr. Marler.

There is another source of frustration that led to the tone of the above, which I am leaving as is. Namely my frustrations with the current state of the US Tort system. I believe that the system is too prone to manipulation by those who wish to do so, and that all too often the damages awarded through that system are far too punitive. It is fair to say that Mr. Marler has personally benefited from that system which I feel is broken. It is unfair to say, or even imply, that his legal interest in the field of food safety is solely to pad his own pocketbook.

My words contained an unfair amount of venom toward Mr. Marler. I disagree with him on the issue of Raw Milk, and I suspect our definitions of what constitutes reasonable efforts to avoid contamination may differ. I still stand by my stance that what I’ve read makes me think that Mr. Marler is not best possible advocate for food safety that those of us who support local food production (and certainly Raw Milk) could ask for. However, to characterize him as an ambulance chaser more interested in padding his own pocketbook than helping other people was grossly unfair.

Mr. Marler, I apologize for this mischaracterization. While we are going to disagree on several issues, the work you’ve done has had positive impact, and it is unfair to make light of that. I think I will take up your offer to call, though not today. If nothing else, I need to spend some more time familiarizing myself with you professional life.