Bill Marler got his first food poisoning case when he was less than four years out of law school. Against the odds, he almost single handedly changed the food industry in the United States. He has represented thousands affected by food poisoning and recovered hundreds of millions. Most importantly, he is a really humble and nice guy.
Justin Hill: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill Law Firm. For confidentiality reasons, names and amounts of any settlements have been removed. However, the facts are real and these are the cases we handle on a day-to-day basis.
Justin: All right. Welcome to Hill Law Firm Cases. Bill Marler just had to listen to my overly-dramatic intro music, but we're learning as we go. We were just talking. I said it's crazy. You don't have a podcast and you said you don't have time and COVID allowed me this free time to do something I'd been wanting to do for a while. Bill Marler is, I don't even think it's arguable, the foremost food injury lawyer in America which has created you to be one of the foremost food safety experts probably around the world.
What I want to talk to you about, food cases, how you got into it. You sent me a little bit of background information. I'm in San Antonio. Migrant farmworker is something that's in the past history of so many people in this city and lawyers I know and friends of mine. Talk to me about how you had some time working as a migrant farmworker.
Bill Marler: [laughs] Yes. When I was 16, it was the summer between my sophomore and junior year in high school. My parents were both teachers, really good people. I had decided that I didn't want to hang around the house and hang around the little town I was living in for the summer. I wanted to go seek adventure. A friend of a friend of a friend said, "Oh, man, you could work in the apple orchards and pear orchards of Eastern Washington and make a fortune."
I was like, "Gosh, that sounds like a great idea." I told my mom and dad. I said, "I'm going to do this." They're like, "No, no, you're not. You're going to get a job here." I was like, "No, no, no, I think I'm going to do it." "No, no, no, you're not going to do it." One Saturday, when they're-- to the grocery store, I packed a duffel bag and hiked down to the road. You could hitchhike back then. By eight hours later, I wound up in a little town on the Columbia River that's known for raising cherries, apples.
I worked that whole summer from Eastern Washington to Eastern Oregon to the eastern side of British Columbia, which is called essentially the Okanagan Valley. It's where all Washington fruits and vegetables were raised. Now, with global warming, it's the hot spot for wine. Now, Oregon pinots and Washington cabs are right up there because we warmed up the planet enough that up here in the Pacific Northwest can grow good wine.
It was a really interesting experience. I think the thing that I took away from it was just how hard those people work. Back then, this is 1970s. Back then, it was White, Black, Hispanic, but a lot of poor Whites. It was a different demographic than really what you see now. Although in slaughter facilities across the Midwest, a lot of the people in the slaughter facilities are Eastern European. I learned a lot about immigrants.
Justin: When you were doing it, was that not the Hispanic migratory farmworkers? Would they not get up that high?
Bill: It was very few. There were a handful. Nowadays, that is what it is. Right now, Washington and the COVID thing, Washington as a state has done pretty well, considering we were the first state that blew up, but we're doing really well in Western Washington. In Eastern Washington where food production is, we're starting to see some of the small towns that have food production facilities blow up with COVID problems. Exactly the reasons for that is that people coming to Washington or is it just the working conditions, it's probably a combination of all those things.
Justin: Yes. Bill, a lot of people that listen to this podcast are lawyers, young lawyers, especially, I seem to hear a lot from. How did you get into the law? We're going to talk about food cases and spend that time. At some point, we all decide, I decided due to a family trauma that we had or a family tragedy, that I wanted to be a guy suing big corporations. That interested me in it. I felt passionate about it. How did you get into the law?
Bill: When I went to college, I wasn't exactly sure what I was going to do. When I was at the end of my freshman year at Washington State University, the Cougars in Pullman, Washington, I stayed that summer to work on a farm primarily because I had an expertise in that now. I stayed that summer and got connected with some the guy that was the student body president. We've decided it would a fun thing to do to run some students for the Pullman City Council. This is at 1977, so I just turned 19 years old.
18-year-olds had just gotten the right to vote just a few years earlier. I got serious about it. I canvassed the entire town and I won by 51 votes. For a while, I was the youngest person elected in the United States to any kind of public office and was the first student ever elected to the Pullman City Council. It was a four-year term. I think that really started to gel my interest in becoming a lawyer. I had visions of being a lawyer and being the youngest president. That didn't quite turn out exactly the way I planned, but no harm, no foul, things turned out just fine.
Justin: Other than being elected to city council, kind of the normal path of college straight into law school?
Bill: Yes. Well, I spent a year after law school working as a paralegal, which I'm constantly glad I did that. I worked as a paralegal and then went to law school, worked actually while I was going to school. I was lucky I did not come out with a lot of debt. Went to work for the big law firm in Seattle at the time. It was called Bogle & Gates. It had 300 lawyers. I wound up doing asbestos defense cases right out of the box.
After about a year of doing depositions of mesothelioma victims and their spouses, I decided that I couldn't do that. I went to work for a small plaintiffs firm. I was there for about a year and then it was a husband-and-wife team. Really good cases and high-end PI cases. I learned a ton, but they got divorced and the firm blew up, so I was without a job. I wound up getting a job at a 50-lawyer insurance defense litigation firm. It was a solid job.
I was married. We just had a baby. I was wanting to make sure I had a stable situation. The thing I did there, and this is, I think, for your young warriors listening, is that I never just decided to just take the cases that I got. I tried to always think about doing my own thing, try to build my practice. The fact that I had plenty of experience, I went to some of the lawyers. If we didn't have a conflict, I said, "There's no reason why I can't take that car case."
One time, I've met a cabby. I was going somewhere. The cab guys were trying to create a different union. They asked me to come to their meeting and help them organize. I went to their meeting and help them organize. From that, one of the guy's sister's kid had been murdered by an escaped convict, a pedophile. I sued the state of Washington. That was my first big plaintiff's case. It caused a lot of grief in the law firm because it was very high profile.
Justin: How old were you then as a lawyer?
Bill: About three years out of law school.
Justin: Okay. Nice.
Bill: The great thing about being overconfident, sometimes you don't know how stupid you are. I think primarily from being on the city council, I felt like I was well-qualified when I'm probably not. As that case was perking, the Jack in the Box E. coli outbreak hit the state of Washington and it was January 19th, 1993. I remember that day. I lived on an island. I still live on that same Island across from Seattle and I took the ferry every day. It was a rainy day.
I was reading the morning newspaper sitting on the ferry and it was like, "There's something going on at a Jack in the Box? E. coli? What the hell?" I got to the office that day and no lawsuits had been filed. I get a call from a former client of mine who I had helped in a workers' comp case. It had been a couple of years earlier. She called me and said, "I don't know if you'd be interested, but I have a friend whose kids are in the hospital with this E. coli thing." I hopped in a taxi of one of my buddies from the taxi service and drove down to Tacoma, which is about 30 miles away, and signed these people up.
Justin: Your snapshot at the time, you had done no products work?
Bill: Well, yes, not any product--
Justin: Asbestos defense, but you were their low man on the totem pole.
Bill: I knew about strict liability and I presumed that food was a product, so strict liability applied.
Justin: Had people done any food poisoning cases at that point?
Bill: At the time, we didn't really know how big this thing was. I came back and I drafted a complaint. I probably shouldn't tell you this story because if it comes back, my wife will get mad at me.
Justin: [chuckles] Go on.
Bill: Go on. Go on farther, you bastard.
Bill: When I was in Pullman, Washington, a woman I dated was-- They have the Edward R. Moreau communications program. It's a well-respected communication. You'll find a Washington State University grad in most newsrooms across America. That's a--
Justin: It's like Missouri?
Bill: Yes, exactly. Yes, for writing.
Justin: Journalism, yes.
Bill: Journalism. Anyway, at the time, I had this girlfriend, pretty serious. Anyway, she dumped me for the guy who wound up being the quarterback for the football team. Years later, here I am, a lawyer with this case and she is the anchor for the local TV station. I called her up and I said, "Hey, it's Bill." "Hi, Bill. How are you doing?" "Great," blah, blah, blah. I said, "I think you owe me one." Anyway, I wound up being on TV that night when I filed the lawsuit and became the face of Jack in the Box of trying to explain to the public what was going on.
Justin: You were a three-year lawyer?
Bill: Yes, three and a half years. October, yes, so three and a half years and--
Justin: Didn't know enough to know what you didn't know.
Bill: Exactly, but I knew more than anybody else.
Justin: You were playing the media. You took a case nobody had done before and "Hey, take a swing."
Bill: Yes. I also had gone to the University of Washington medical school library and walked in and said-- This is before computers. This is crazy. This is before the internet and we didn't have email. I walked in and it was like I don't even know where to look for anything about E. coli. I just walked up to the librarian and said, "Hey, do you guys have anything about E. coli?" I just read all I could. At least I knew how to say it and I knew what the problem was.
Justin: Was this before or after that weird time in the '90s when the book Outbreak or the movie Outbreakcame out and everybody was scared of getting Ebola? Was that before or after that time?
Bill: This was before.
Justin: Okay, because there was that weird time in the '90s when everybody was scared of a pandemic.
Bill: Ebola, yes. Of course, now, we watch those movies and they look very similar to what we're seeing now.
Justin: Yes, that's right.
Bill: I went from having one case to 10 cases to 30 cases.
Justin: All individually filed?
Bill: Yes, and then a really interesting thing happened. There were a lot of good plaintiffs' lawyers in the Northwest, people who are on National Trial College and all that kind of stuff. Here I am, a third-year lawyer from a mid-sized insurance defense firm primarily with all these cases. The plaintiffs' bar was pretty pissed.
Bill: Yes. I went to a meeting with them and they were pretty unhappy. Essentially, I smoothed it over by essentially saying, "Hey, look, I will do all the work. I will prove to you that I know what I'm doing and I can help us all." Really, from that point on, I took control of the case. I offered to do everything.
Justin: Did the other plaintiffs' lawyers have cases? Is that why they were--
Bill: Yes, they all had cases. They had one here, one there. Pretty soon, people were like, "Well, you've got 30 cases here. You take this one."
Justin: Did people think they were viable or were they taking a swing because you were? You see that in towards. You see it where everybody's like, "That's crap, but that guy is going to swing. I might as well ride along."
Bill: Yes. I think at the time, nobody knew quite what was going on.
Justin: What was the theory?
Bill: The theory was at the time that Jack in the Box had not cooked the hamburgers to a sufficient temperature to kill E. coli.
Justin: It was almost a negligence case then at that point, right?
Bill: Yes. As we got to know more, it became essentially as we started-- I started thinking about it as the hamburger was the product and the defect was the E. coli and the defect was not cooking it properly like-
Justin: - a manufacturing defect.
Bill: - manufacturing defect. That became the overarching theory. It became really clear that there were some-- four kids died and there were 50 children who had developed acute kidney failure. There was one girl who I wound up being retained by their family probably six months into the outbreak. She was hospitalized for over six months and they had every day-- You're too young to remember this. Back during the Iran hostage crisis in the '70s, it was every night, there was like, "Day 52 of the hostage crisis." Every night on TV was "Day 52 of Brianne Kiner."
Justin: Is that right?
Bill: Oh yes. It was like just a drumbeat of that, but circling back to the relationships with lawyers is that like projects in college. If you offered to do stuff, then don't be like say, "Hey, I get your fee," or you're just doing it for the right reasons. If you offer to do stuff, it's amazing how many people will let you do it. The thing that came out of after two years of litigation and me transferring law firms in the middle of that, I decided that about a year into it, I went to the partners of the firm I was in.
By then, I had about 100 cases. It was pretty clear that by then, I was figuring out and I'd been hired by this family of this child and a couple of people who've lost children. It was pretty clear that this was going to be a big deal. I had to say, "Hey, look, make me the 23rd partner and I'll just get my 1/23rd share of whatever." They were like, "No, no."
Justin: They said no?
Bill: "You're not in law school." I'm like, "Okay." I actually went to the senior partner of the firm. Wonderful guy. About a year after I left, he passed away. The family asked me to speak at his funeral, which pissed everybody off for the firm. Nonetheless, I went to him and said, "Pinckney." His name was Pinckney Rohrback. "Pinckney, what should I do?" He goes, "Bill," he goes, "You gotta do the right thing for your client and everything else will be okay." That night, I wrote a note to the managing partner and said I'm leaving the firm. I joined another firm, wrote a letter to all my clients saying, "You have a choice. You can stay with the firm. You can come with me. Your complete choice." All but one client came with me.
Justin: Wow, today, that would lead to a ton of fee fight lawsuits where you all go--
Bill: No, no, no, it wasn't cool at all. They were mad. They threatened to sue me. I said, "Hey, let's do mediation," went to mediation. I agreed to give them half of my fee at the end of the case. Whatever the fee was, I gave them half. They were like, "Awesome." I tried to take a big deal. Through to my first mediation, we settled $25 million worth of cases. I walked a check over to them for $2.5 million.
Justin: Did you have any idea what the value was in these cases?
Bill: No, they didn't either.
Justin: I read the book Poisoned. That's the seminal book about--
Bill: That tells the story.
Justin: Yes, about that litigation and they didn't-- Jack in the Box didn't take you seriously at all at first, right?
Bill: The great thing about discovery is it's such a fun tool. I remember the breaking point. I don't know if it's in the book, but the breaking point of that litigation was I realized that there was shareholder litigation that was alongside of us. There's all the shareholders of Jack in the Box who sued Jack in the Box for essentially causing this outbreak and making their stock price go down.
I knew that the litigation was going on and they had a protective order, but I didn't. I called up the lawyer and I said, "Hey, could you come over and look at some of my documents?" He was looking at the documents that I'd called in and he goes, "Well, I can't tell you what other documents I have, but I have other documents that you probably-- they're copies of your documents but with handwriting." I moved to intervene in the shareholders' litigation.
Justin: That's great.
Bill: In fact, I argued that motion. The guy on the other side of it was Bruce Clark, who's now my partner. He represented Jack in the Box. The court ruled in my favor and I was able to get access to all those documents. Once I got that, yet everything became clear that Jack in the Box knew about the cooking temperatures, made a conscious decision to ignore it because it interfered with their two-minute turnaround cook time. That timing was more important than the temperature.
Justin: Wow. [chuckles]
Bill: After that, it was just like the cases just settled.
Justin: How many cases did you end up having in that?
Bill: Just a little over a hundred of mix and sizes. Unfortunately, some death cases, kids with acute kidney failure.
Justin: Wikipedia said one of them settled for 15.9. Is that accurate?
Justin: There were big settlements in those cases.
Bill: There were big settlements.
Justin: I heard of your name the first time when I was a baby lawyer at a firm that-- my first job. The firm was known for Ford rollover and Ford cases. A guy named Mikal Watts was a big auto products guy. A lawyer I got to know said he tried to call with a spinach case back in the day and said that they said, "Well, we don't do that kind of stuff." Somebody referred him to you. The number he said that case settled for. I remember thinking, "How on earth does a food poisoning case--" but the girl had HUS. They had the bag of spinach they had frozen. It got tested. It was a very clean cut and dry case.
Bill: Actually, I think I know that case. She was a college student.
Justin: That's right, yes.
Bill: A college student and she and her husband actually live in Austin.
Justin: Maybe John O'Quinn's firm send it to you because my buddy sent it to O'Quinn and O'Quinn sent it to you.
Bill: They kept their mitts on it. We worked that out. In fact, I remember it was-- Actually, it was one of the last of the group of spinach cases and we mediated it in Wisconsin in the middle of the freaking winter at the Pfister Hotel if you've ever been to. It's a great classic old hotel. It's neat. It's a neat place, but we mediated that and settled it.
Justin: That guy, it's funny. He is a minimum-limits, car-wreck defense lawyer. That case paid for his kids' college and all that kind of stuff. He stumbled into that case and knew the right place to send it and got a great result for the client. Other than Jack in the Box, you've been involved in spinach, peanut butter. Has any other food outbreak case rivaled Jack in the Box and sort of--
Bill: Oh yes. No. It's funny because every once in a while, I go, "Oh, this is going to be the biggest case I've had" or "This is going to be--" I've been involved in every single case that has occurred in the United States. Major and minor. One of the most tragic cases I was involved in was there was a 2011 outbreak of listeria, which is a really nasty pathogen linked to cantaloupe.
It killed 33 people in the United States. I represented 30 of those families. It was a clear case of liability. The problem was is that there were lots of problems with respect to insurance coverage. We wound up working our way from the grower to the shipper all the way to Walmart and Kroger, bankrupting everybody below the retailers, and then putting the arm on Walmart and Kroger.
Justin: Bill, talk to me about that because I remember when those listeria cases came in. I remember reading about listeria and I thought there was a 30-day incubation period. If I got sick with listeria tomorrow, I'm not going to remember what I ate 30 days ago. If I had cantaloupe, maybe, maybe not.
Bill: There's a great paper that I wrote. Look, I don't know. It's probably been 15 years ago. It really hasn't changed. It's a little white paper I've got on billmarler.com. It's called Separating the Wheat from the Chaff. It's kind of a how-to of how to do a food case. You can read it backwards and defend it or you can read it forward. Food-borne illness cases are unique because each of these pathogens have incubation periods that can vary widely from a day or 24 hours to weeks.
Listeria can be up to 70 days after ingestion. Most cases, it's within a week or two of ingestion because, usually, it impacts somebody with a pregnant woman or someone with immune-compromised. It's not quite as difficult to sometimes pull all that together. That's always a challenge. Anytime you have a small outbreak where it's one person or two people, it's really hard to put those together sometimes. It's sometimes a lot of money chasing a rabbit that we can't catch.
Justin: You have your own epidemiologist in-house. What is the role of an epidemiologist for you in working up these cases?
Bill: Our office runs essentially like a public health organization that has a prosecutor attached to. When we intake cases, we're doing the same thing that health departments are doing, especially like during COVID where health departments are not investigating these cases. We're doing those investigations ourselves. We're interviewing people. We're getting receipts. We're doing food histories. We're doing all of those sorts of things, trying to figure out whether or not we can link a person's illness to a particular product. That's what our epidemiologist does. That's what food-borne epidemiologists do all over the country right now. They tend to be more focused on COVID for understandable reasons.
Justin: From your law firm's standpoint, that's almost really vetting whether it's a case. Once it's actually in litigation, does the epidemiologist have much of a role anymore?
Bill: Not our in-house one, but sometimes we then have to-- Not to say that she's not qualified as an expert, but obviously, we have to get an outside expert to look at this. In fact, I was just working on an expert report today on a seminal case I've got in Washington, DC, and getting an expert to, in a sense, opine what our epidemiologist has already told me. You have to go through those hoops.
Justin: It's your own in-house consulting expert.
Bill: Exactly, yes. We have a full-time nurse who helps us. She's been with me for 20 years. She knows more about food-borne illnesses. She knows more than I do. We've been involved-- Right now, I think you and I've talked about this. I'm involved with a listeria case in South Africa right now where I'm representing or assisting in funding and working on a case involving 1,000 people who got sick and 200 who died from eating a product called polony, which is a kind of a nasty form of baloney that's eaten by-- It's kind of like spam. It's eaten by- [crosstalk] white and black. It's a ubiquitous South African product like Spam is here in the United States.
Justin: Is there a legal system that allows for recovery over there?
Bill: This is really fascinating. About five, six years ago, they essentially adopted a US version of a Consumer Protection Act kind of claim. I think it was about a year after it had been instituted, I had been asked to come to South Africa to speak at a food safety conference. I'd never been to South Africa, so I flew down there and got to go on a safari too, which was a blast.
Bill: Anyway, I explained to them how we do things here in the US. There was a lawyer there who represented companies who were-- They're trying to figure out what's this Consumer Protection Act going to mean. He and I kept in touch over the last five years. When I saw this listeria outbreak hit the public, the one that I'm working on now hit the public in about probably in October, November of 2017, I called him and I said, "Man, you guys got 150 people sick. It's got to be some kind of product like cheese or deli meat." He's like, "No. It's the water," and blah, blah, blah." I'm like, "No, man."
March of 2018, I had been invited to come to South Africa to speak at a food safety conference again. I was like, "Oh, man." That's a one full-day, 24-hour flight. It's a long time to get there. It's Seattle to Amsterdam, Amsterdam to Johannesburg. It's a long flight. You can go Seattle to Atlanta, Atlanta to Johannesburg, which is 16 hours one way. Anyway, so I said, "I think I'm going to do it by video," and blah, blah, blah, so we're talking about it. The conference was on Wednesday. That Monday, the health department announced in South Africa that this outbreak was now 800 people that had been linked to Tiger Brands polony, which is the largest meat supplier in Africa.
Justin: I mean, polony just sounds gross.
Bill: It's just terrible. Google it later. Anyway, so this was six o'clock in the morning on a Monday and I was sitting there going, "I wonder if I can get to South Africa by Wednesday." I called my travel agent and I said, "Mark, I need to get to South Africa by Wednesday." He goes, "Well, we could rent a jet." I'm like, "No, no, no, you got to get me there commercially." He was like, "He's okay. Let me make some calls." What happened that Monday morning, I was in Arizona.
I flew home, had my wife meet me at the airport with a suit and some other clothes. I got on a plane from Seattle to Amsterdam that day. I made it to South Africa Wednesday morning an hour and a half before my speech. I took a shower, shaved, gave my speech, and it was nuts. It was like reliving Jack in the Box because it was like, "Oh, my God. How could this ever happen? Oh, my God. Jeez, it's terrible." Here I was like, "Well, let me tell you what's going to happen."
I was on TV that night and on the radio because people didn't have anybody to talk to. We started getting phone calls in Seattle from South Africans saying, "My wife died, my child died. I need help," and so there at my office is calling me like, "What are you doing?" I found a law firm in South Africa in a fight with the diamond mines over silicosis injuries, and so I contact them and said, "Hey, would you guys like to work on this case?" They were like, "Sure." We filed a class action and the court has appointed us as class counsel for all 1,000 victims.
Justin: Are there damages caps there?
Bill: No, it's the Wild West.
Justin: It's a court that decides, right? Not a jury.
Bill: It's one judge. It's one judge. There's precedents that have been set on values. More importantly, it's about figuring out what happened and why and how you can prevent this from happening. This is a terrible tragedy for-- I could go on, but I went to-- Johannesburg is like-- It looks like, and for the most part, most parts of the town, like any major European or American city, but surrounding it is the township of Soweto.
One of the clients was a young mom whose child had been born prematurely and had some problems and I just wanted to go meet them. I went to the hotel. There was a concierge and I said, "Hey, I would like to rent a car so I can drive out to Soweto." They're like, "Oh no, no, no, Mr. Marler. You're not going to do that." They got me a tour guide. Too big, 300-pound dudes with arms as big as my thighs and with guns. We drove out to Soweto in an up-armored Toyota Land Cruiser. I went out there and just wonderful people. Poor, but-
Justin: - good people.
Bill: This should not have happened to them. I don't know what's going to happen financially. My goal here is to-- Getting anything for these people would be important. Making sure that this kind of thing doesn't happen again is almost as important.
Justin: You're very humble about all these things that you've done, so I want to talk to you about your advocacy. Before I want to just be a kind of a nerd, what are the three biggest, in terms of total value of all the cases, food poisoning or food outbreak cases you've worked on?
Bill: Well, most of these cases are confidential. I've settled E. coli cases from 5,000 to 30 million per individual. Unfortunately, just like any other damages, there's a relationship between how bad off someone is to how much they can get.
Justin: What about in total value? Was spinach the biggest?
Bill: Yes, probably, probably. We represented 105 of the people and most are severely-injured people. We used up all their insurance money. Right now, I'm working on a case probably from a damages point of view. Probably, the most severely injured victim of a food-borne illness case that survived, it's a two-year-old boy who ate E. coli-contaminated romaine lettuce, suffered a brain bleed.
He can't walk talk, feed himself. He's also going to lose his kidneys. The issue, from a damages point of view, it's just horrific. There's obviously going to be issues about life expectancy.
Justin: Is a brain bleed a known complication with E. coli?
Bill: Yes, it happens. A lot of times, what happens in E. coli is that the toxin gets into the blood system and splits the red blood cells, and so it doesn't carry adequate oxygen. A lot of times you have like these microthrombi but this kid, these these schistocytes, these little pieces of red blood cells can clog up in your capillaries and stuff. What happened here is that it, a big- he stroked. You look at his MRI now a year after this thing, it's amazing he's not, he just he's amazing he's functioning at all.
Justin: With what's going on with COVID and everything. I think we're all a lot more knowledgeable as a society about chicken farms and pig farms and all that type of stuff. Do you see anything changing in the food industry just due to a food safety perspective? Do you personally think, "I'm never eating pork again?" What do you see changing or coming about?
Bill: Setting aside COVID for a second, there's no evidence whatsoever that it's food-borne? Although the Chinese have just recently had a spike in COVID cases in Beijing. They're trying to blame it on Norwegian frozen salmon.
Justin: [laughs] I didn't see that.
Bill: Everyone tries to blame everybody for whatever.
Justin: COVID made everybody talk about MERS and SARS a lot more. I think people just started knowing more about it.
Bill: The answer to your question is right now because everyone's focused on COVID we really don't know what's going on behind the scenes with respect to food-borne illnesses. It's not an issue of competency from the public health department, but it's just that they're obviously focused on other things, understandably. That's one thing that's going on is the surveillance of those diseases are not happening. We've actually seen a downturn in calls and intakes of confirmed cases. We get a lot of phone calls from people who are, "I've got this problem, what do I do?" and "I don't want to go to the doctor because of COVID." The way these outbreaks get figured out, is somebody goes to the doctor gets a stool culture, that's what prompts the investigation. If people aren't going, people aren't being counted. The other thing too is with restaurants being shut down, people are eating at home and so you're not having outbreaks at a restaurant setting where there'll be so many of them that you'll notice. It's unclear to me what this whole COVID thing's going to do, except I think that we'll see less litigation that stems from this period of time. Because I think there'll be less illnesses that will be actually linked to a particular thing.
Justin: What about just industry-wide? It makes sense. Industry-wide, do you see any changes in the way we're going about making food or growing animals that you think is going to make food safer or less safe as we move forward?
Bill: That's a great question. That's a good opportunity. I hadn't said something, but the from 1993 to about 2002, about 95% of the revenue of my law firm was E. coli cases linked to hamburger. We were really a one shop kind of place. We had a random Salmonella case, Listeria case and Botulism cases, but the bulk of what we were doing was E. coli cases linked to hamburger. After about 10 years of litigation he had taken a bunch of money from the beef industry, probably $400 million and new regulations coming into effect and the industry stopped fighting about it and started focusing on it. We started seeing the E. coli cases linked to hamburgers absolutely just drop. I remember the summer of 2003 and there wasn't a E. coli outbreak linked to hamburger and I was like, "Hmm. Maybe we were too good at what we did."
Justin: No that's great though for America.
Bill: It is. No. Unfortunately, for all the people who've gotten sick from cantaloupe and spinach and leafy greens, we're still incredibly busy. We're trying to now squeeze those guys down. I tell you that story because I actually tell that story to the industry all the time. You can fix these problems. With respect to these outbreaks, the vast majority of them are caused by mass production of food. It's the bag, triple washed product. It's the big packing shed that's doing Listeria tainted cantaloupe. Most of these outbreaks are caused by mass production. I could pop up some photos from the Romaine lettuce 2018 litigation from Yuma, Arizona, 240 people sick and five dead and a bunch of kids with acute kidney failure. It was essentially linked to the water that flowed past 100,000 cow CAFO that's essentially across the street from where they grow Romaine lettuce. It doesn't take a smart person, let alone a dumb lawyer to go, "Hey, that's doesn't seem like a really good idea."
Justin: If that water gets into the roots, could it make people sick or does it have to get on top of like sprayed on it or something?
Bill: It can go into the roots. There's literature on that topic. In this litigation, there was a cluster of cases that were- that appeared on paper anyway, to be linked to farms that were about 50 miles away from this CAFO. The defense was, it couldn't be us because we're 50 miles away from the CAFO. To be honest with you, that makes sense, how could it? As we dug and dug and dug into the litigation, we found a really interesting fact that not only that farm but other farms that were also by paper linked to this outbreak were also a long distance away from the farm. The common denominator was the same-- They used the same aerial spraying company. Then we went after them. We subpoenaed their documents, found out guess where they are getting their water there into their planes to spray, from the canal and you're like- [chuckles]
Justin: What leads it to be that one outbreak that year and not there'll be an outbreak every single year previously?
Bill: Usually it's a kind of a combination of like perfect storm, like a big rainstorm or a period of heat, something that might damage the roots, damage the leaves enough that the E. coli can get a little toehold in there. There's usually kind of a combination of things. Yuma, Arizona thought they were immune from these outbreaks because they'd never happened before and most of them happened in the Salinas Valley in California. They thought, "Well, it wouldn't happen here because it's really hot and dry." Until they happened. Then then you look at it and go, well clearly would not have happened had you not had 100,000 cows. Sometimes it's just, it's amazing how common sensical-- There was an article put out by the FDA, recently of a follow up investigation to an outbreak that occurred in 2019. Their conclusion was, "Hey, we think it's related to cows because there's cows nearby." I did a blog about it. You know that character on TV Captain Obvious?
Justin: Yes. [laughs]
Bill: I put a little picture I said, "No, blank Captain Obvious".
Bill: That was because of the E. coli outbreak. Of course some of my friends at the FDA I'm probably not going to get a Christmas card from them anymore but-
Justin: Talk a little bit about that. There's lots of lawyers who go do what they do and they make money doing what they do, and they're really happy going and sitting on their money throne and then there's guys like you who do great work for your clients but you're also an advocate in the industry. You speak to governments and trade associations, what kind of capacity do you work in the advocacy side outside of being a lawyer?
Bill: We do quite a bit. I've testified in front of Congress. We were really involved in the passage of the Food Safety Modernization Act in 2010. In fact I think I may have a T-shirt or two around still but I passed out T-shirts when you could do that kind of thing on the senate side to all 100 senators. There was a T-shirt that said, it had a picture of me on the lapel with a red X through it like a ghostbuster’s, and on the back it said, "Put a trial lawyer out of business pass meaningful food safety legislation by Christmas".
Justin: That's awesome.
Bill: I passed those out to every single senator. I spent almost three weeks in DC being able to go meet so and so. I met every crazy senator you can imagine. Some of them were like, "What? What? You're a trial lawyer? What do you- what?" We've been doing that and right now you may know that new thing we're doing is we've made a petition to the USDA to ban salmonella from chicken. You'd think that that would be common sensical but it's completely okay for the poultry industry to knowingly sell contaminated chicken to the public.
Back in 1994 the USDA banned the sale of E. coli contaminated beef. That took about 10 years to work its way through the system. What we're advocating now is there are about 30 strains of salmonella that cause human illness and we're asking the USDA to do exactly what they did to hamburger. Right now we've got a petition, the industry is not very happy.
Justin: Who are you teaming up with on the NGO or advocacy side to help push those types of legislation?
Bill: There's surprisingly few NGOs, there are a handful of them and we've gotten Food and Water Watch, Center for Science in the Public Interest, The Pew Trusts. There's a handful of people who've- Consumer Reports signed on to our petition. We got a great group of people who are helping and then the three main petitioners are three of my clients who got sick. We told their stories in the petition.
Justin: Does Ralph Nader's group have anything to do with it?
Bill: No. They're focused on some other things but we've tried to get a lot- most of the groups involved, some have a slightly different take and some of them are understandably wondering why in the hell is this lawyer from Seattle doing [crosstalk]?
Justin: Are there any legislators you found are really particularly interested in the food safety issues?
Bill: Yes, there are some. Senator Gillibrand from New York, Congresswoman Rosa Delauro, Dick Durbin. In fact I have a funny story about Dick Durbin. It would have been in ‘07. The house would flip back to Democratic control in 2006 for a while and the food safety legislation that had been boxed up for a decade when our friend Newt Gingrich was running the house was starting to move forward. I was in DC meeting with Senator Durbin because the Senate was crafting their own version of a bill and I was working with the Laura's office and trying to make sure the Senate Bill is going to be similar.
Because they sometimes do their own thing and when they come to amend it's so different that they can't do it in committee and it doesn't work. I had met with him and his staff and I was walking down the hallway in the Russell senate office building, walking down towards the elevator and these-- If you’ve been in those buildings they’re just huge long. The senate offices are enormous. Anyway I'm walking along and then one of the door on my left I noticed it was the other senator from Illinois at the time Barack Obama.
I'm walking and just as I walk by the door Barack Obama walks out the door. We're walking down the hallway kind of together towards the door, not saying anything, and I push the elevator to get on and he looks at me and he goes, "What were you doing in Durbin's office?" I was like, "I'm a lawyer, I’m doing this food safety stuff." He goes, "I know you. You're the E. coli guy."
Justin: How awesome?
Bill: That was cool. That's my claim-
Justin: Any interaction with him as President?
Bill: Yes, I gave a bunch of money to him and then I did make the shortlist for undersecretary of agriculture for food safety but beef industry just went bat shit. There's just no way that-- It was fun to be vetted by the FBI. At least I got vetted and I guess they didn't find anything- [crosstalk]
Justin: Bill, you and I are currently working on the pasta cases which that thing has to probably be the biggest outbreak in San Antonio and maybe ever. There was 800 people sickened.
Bill: It's one of those cases that we've done everything we can do to move the thing along and it's really an issue of under-insured company and we're making all the arguments that we can make, you and I can make, to get the insurance company to step up. I'm guardedly optimistic that the insurance company is going to see the position that we are taking that there's more coverage than they originally suggested-
Justin: In the Magna Carta.
Bill: Yes, that my office grafted about a year and a half ago. I'm hopeful that the insurance company will see it our way or close to it so all of the people that we represent and frankly all the people who have claims will get compensated as close to fair as we can do.
Justin: Bill, we have young listeners who listen to this, young lawyers and other lawyers and I think a lot of people when they get a call on a food poisoning case go, "Yeah, I'm not doing that". I think just so many of those get called to lawyers and lawyers just ignore them, what is your advice for lawyers who get these calls in terms of how to properly vet them and then decide what to do which, send them to you. How would they hold on to them?
Bill: [crosstalk] Tony, I'll send them to you.
Justin: Also that.
Bill: You can justify this, Justin, we work really super collaboratively with our local council. I never focus on fees and who's doing what, I love my job. I'm lucky that way and I found a niche that I really enjoy it and I'm really damn good at and our office is really good at. There are a lot of times where very good lawyers take these cases and try their hand at them and they'll call and ask for an expert and I'll give it to them and they'll muddle along and then somewhere along they'll call me back and go, "now what?"
If somebody wants to refer a case and keep their fingers in the pot to figure out how to do this that's fine with me. I don't need to do every case and I think it makes sense to collaborate but I also urge people if they don't know what they're doing pick up the phone or shoot me an email and I'm happy to help.
Justin: I would say I'm never too proud to learn and every time I worked with you on a case, I've learned a lot. These things have their own language, they have their own background information. You got to get to even know if it's worth moving forward on and you all have been so gracious and so humble and so informative for my office to move and learn these.
Bill: We've developed relationships with, most of the time on these- especially these nationwide cases, we know who the lawyer's going to be for the case. We already know the adjuster. They know that we're serious but reasonable. I was actually talking to-- I actually had an E. coli case up in Chicago where I represented 48 people. The cases limped along for like a year and a half in litigation and now with COVID, it's going to limp along for another, who knows how long until we can get a trial. I was talking to the defense lawyer the other day and they were like, well, and there's probably another 20 cases. One lawyer here, one lawyer there and I've been trying to get the plaintiffs all together and try to work out a demand.
They're like, these cases are, you guys want too much money. I'm like, you got to make offers, make people nervous. I said, the one thing about strict liability is once I have you, once I figure out causation and you're stuck, then the issue is how much is it worth? Reasonable minds should be able to come to a conclusion of what a reasonable value of a case is. I said I tried a lot of cases in the first five, six years of my practice. I haven't tried very many cases in the last 25 years of my practice and it's not because I'm adverse to trying cases, it's just that once I prove strict liability, the issue is damages. To you, defense lawyer thinking I'm being unreasonable, think about the fact that in the last 25 years, almost all my cases settled. Somebody's reasonable and the defense was reasonable. What's the difference about our case right now? It hasn't settled. Is it because I'm being unreasonable or you're being unreasonable? She was like, oh, I hadn't thought about that.
Justin: I've dealt with some Chicago defense lawyers before. They liked to butt heads.
Bill: Yes. The system, Cook County may be good at the end of the day for trial.
Justin: Five years later.
Bill: Oh my God. This place, it's like they have these cattle calls. I moved for summary judgment in that case. The defense didn't respond and the court didn't grant my motion. He was like, well, there could be facts. I'm like, but there aren't any, anyway, it's just different.
Justin: Well, Bill, I'm a law nerd about lawyers, and really you're a hero. I think to a lot of us out there who know what you've done and you've blazed a path and you've done it yourself and you're a voice for the victims and you're a voice for all of us as well. Thank you. How could people learn more about your firm Marler Clark? You also run a fantastic blog. How could they get to that blog?
Bill: marlerclark.com. As it sounds, marlerclark.com. We also have a lot of resource websites. If you go to marlerclark.com and look at the very bottom, there's a bunch of different links to different websites that we've developed over the last 25 years. They're about the bacteria or viruses that we deal with and also some of the main complications and a great resource. If you're trying to dip your toe in the water of these kinds of cases and it's good for consumers. In fact, we're old enough, I'm old enough now. When the internet started and people were doing websites, you thought of them as a big brochure. When I first started practicing law, you'd have a brochure about your firm in the lobby. Who goes to your lobby anymore? Essentially, that was our thinking. You created a website, "here's our", and then we did the same thing for these bacteria and these illnesses that relate to that. We developed them along with experts over the last 25 years. They're pretty comprehensive. Those are good resources for people. Email's a great way to find me. As you know, Justin, I'm on 24/7.
Justin: Very quick to respond. What's your email?
Justin: Well, Bill, I went way longer than I planned to but I was gonna hope to keep you for a long time. While you sit tight, let me play my dramatic music and then we'll chat on here again.
Bill: I can't wait.
[01:05:42] [END OF AUDIO]