E Coli Lawyer & Attorney : Marler Clark Law Firm : E. coli Blog

Associated Press reporter Jeff Gold authored a story that appeared in today's issue of Newsday and focuses on the inefficiencies and holes in the Topps Meats E. coli recall.  The story begins:

Meat recalled a month ago that could be contaminated with a potentially fatal bacteria was found in seven northern New Jersey stores, state consumer safety officials said Tuesday.

Inspectors in the past week have seized 138 boxes of frozen hamburgers made by Topps Meat Co., which issued a nationwide recall on Sept. 29 for 21.7 million pounds of frozen patties.

State authorities have not determined when the meat was delivered to the stores.

Four of the stores, all in Jersey City, were located after a distributor was subpoenaed by the state Division of Consumer Affairs and provided shop names and locations, agency spokesman Jeff Lamm said.

Inspectors found the other three while visiting nearly 200 stores in Hudson County, he said.

On September 25, 2007, the USDA’s Food Safety and Inspection Service (FSIS) announced that Topps Meat Company of Elizabeth, New Jersey, was recalling 331,582 pounds of frozen ground beef products that may be contaminated with E. coli O157:H7. The company's ground beef products had been identified as the source of an E. coli O157:H7 outbreak among residents of New York, Connecticut, Indiana, New Jersey, Ohio, and Pennsylvania.

At least six people in New York had become ill with E. coli infections after eating Topps Meats' ground beef, and the investigation into these illnesses by the New York Department of Health and the Centers for Disease Control and Prevention was what led to the resulting recall.

By September 29, 2007, Topps Meats had expanded the recall to a total of 21.7 million pounds of frozen ground beef products produced on various dates between September 25, 2006 and September 25, 2007. On October 11, 2007, the CDC announced that 38 confirmed illnesses had been tied to the outbreak in 9 states: Connecticut, Florida, Indiana, Maine, New Jersey, New York, Ohio, and Pennsylvania.

FSIS issued an outbreak update on October 26, 2007, and announced that a joint investigation between FSIS and the Canadian Food Inspection Agency had identified meat trim provided to Topps by Canadian company Ranchers Beef Ltd. as the source of the outbreak.

The recalled products were sold under Topps brand as well as Pathmark, ShopRite, Mike's, Kohler Foods, Rastelli's Fine Foods, Roma-Topps, Sam's Choice, Sand Castle, and West Side labels. All recalled products will have a USDA establishment number of EST 9748 on the back panel of the package or in the USDA logo.

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The United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) today issued a press release with an update regarding the E. coli outbreak investigation and recall of Topps brand hamburger patties.  FSIS used the update to announce that in a joint investigation between the Canadian Food Inspection Agency and FSIS, investigators had determined that Ranchers Beef, a Canadian company, had supplied E. coli-contaminated beef trimmings to Topps, and that Ranchers Beef, Ltd., has been "delisted" since October 20, meaning the company has not been eligible to export meat to the United States since that date.

According to the press release:

On October 25, the CFIA provided FSIS with PFGE patterns, or DNA fingerprints, from tests of beef trim from a Canadian firm, Ranchers Beef, Ltd., Canadian establishment number 630. This firm provided trim to the Topps Meat Company. While the firm, which had been located in Balzac, Alberta, ceased operations on August 15, 2007, some product remained in storage and was collected and tested by CFIA as part of the joint investigation of the Topps recall and as part of CFIA's own investigation into 45 illnesses in Canada from E. coli O157:H7.

The press release continued:

Today, PulseNet provided verification to FSIS that this PFGE pattern matched those from patients who were ill and from positive tests conducted by the New York Department of Health on product (both intact packages and open packages from patients' homes) that was later recalled by the Topps Meat Company on September 29. PulseNet is the Centers for Disease Control and Prevention's (CDC) searchable database of all PFGE patterns from patients and food products in the United States.

On September 29, Topps expanded an earlier recall to include 21.7 million pounds of ground beef products for possible E. coli contamination.  The recall was initiated after illnesses associated with the products were reported in New York, Pennsylvania, and several other states.  As of October 26, the Centers for Disease Control and Prevention had identified 40 illnesses under investigation as being part of the outbreak. 

Marler Clark has filed lawsuits on behalf of two people who were confirmed part of the Topps E. coli outbreak, and represents several other people in claims that are being investigated as potentially associated with the outbreak.

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In yesterday's New York Times, Chris Drew and Andy Martin's article, "Many Red Flags Preceded a Recall of Hamburger" detailed what is known about the Topps ground beef E. coli outbreak and recall.  The story contained the following:

Federal investigators said they had recently learned that the company failed to require adequate testing on the raw beef it bought from its domestic suppliers, and it sometimes mixed tested and untested meat in its grinding machines.

The Agriculture Department acknowledged that its safety inspectors, who were in the Topps plant for an hour or two each day, never cited the company for these problems.

Additionally, Topps, like many other beef processors, had bought an increasing amount of meat from overseas. Some types of meat from foreign countries — where E. coli has not been prevalent — are not required to be tested for contamination. But the Agriculture Department said the Topps case had prompted it to consider requiring such checks.

In response to the problems, the Agriculture Department directed its inspectors on Oct. 12 to conduct a nationwide survey of what meat plants are doing to fight E. coli., and it plans to send special assessment teams into any plants that seem to be lagging to urge them to adopt more stringent measures.

Those more stringent measures were discussed at a news conference held by the USDA's Food Safety and Inspection Service yesterday.  In conjunction with the news conference, FSIS posted a list of new "key initiatives" for federally inspected plants that produce raw beef products.  USA Today reported on those key initiatives today, putting them in perspective of what has happened in the meat industry in the last year with regards to E. coli O157:H7:

There have been 15 E. coli O157:H7 recalls in beef this year, eight of which caused illnesses. That's up from eight recalls last year and no related illnesses.

The rise in recalls and positive E. coli tests for the first time this decade indicate "something has changed," said Richard Raymond, the USDA's undersecretary for food safety.

The USDA now will test meat at large plants about 12 times a year, up from seven. Plants with more problems also will be tested more. Well-run smaller plants may be tested less often than they have been. Before, the USDA tested all beef plants' products about seven times a year.

Meat plants have been required since the late 1990s to have good E. coli controls. Companies had to reassess those plans in 2002. Given conditions at Topps, the USDA says more supervision is needed to ensure compliance and that USDA inspectors can adequately check plants. As of next month, plants must verify that they're effectively controlling E. coli O157:H7. "We can and must do better," Raymond says.

Herb Weisbaum of KOMO 4 TV in Seattle also reported on the state of the meat industry and the USDA's new initiatives.  Notice the last sentence from this excerpt:

As of November, all beef processing plants and slaughter houses will be expected to verify that they are effectively controlling e.coli during processing and slaughter.

Inspectors, who are in meat plants every day, are being retrained to do a better job of making sure proper food safety procedures are being used.

But even the most aggressive testing programs won't catch all the e.coli that could be in the meat. So to be safe, you need to treat all ground beef as if it is contaminated. [emphasis added]

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The Ithaca Journal's coverage of an E. coli lawsuit filed against Topps by Marler Clark highlights the firm's decision to ask the Court to award punitive damages to an 8-year-old child and his mother, who both became ill with E. coli infections after eating Topps ground beef patties at a barbecue.  The Journal quotes Dave Babcock, attorney for the Goodwins, on the decision to seek punitive damages and the USDA's recall policy:

“The USDA knew a child had gotten sick with E. coli for weeks ... in late August,” said Marler Clark Attorney David W. Babcock.

Topps did not make a recall until Sept. 25, he said.

While the Food and Drug Administration is a pro-consumer agency, it has no jurisdiction over meat and poultry.

“The USDA does not even have the statutory authority to force a recall. They cannot recall a product; they can only ask Topps to do so. In this case they didn't,” he said.

According to an Oct. 12 Associated Press article, consumer groups, including Consumers Union and the Consumer Federation of America, are asking that the U.S. Department of Agriculture gain the authority to issue recalls.

Bill Marler of Marler Clark also commented on the punitive damages issue in a press release about the second E. coli lawsuit the firm has filed against Topps:  “We are asking for punitive damages because had the company acted responsibly and recalled its products the day they discovered the E. coli contamination, Kristin and Lucas’ infections could have been prevented.  It was poor judgment on the part of Topps, and although Topps paid for this mistake by going out of business, consumers like the Goodwins paid with their health.”

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Marler Clark client Emily McDonald's mom was interviewed for a story that is online on the Albany Times-Union website.  Catherine McDonald expressed her concern that other people might have recalled Topps hamburger patties still in their freezers, and spoke of Emily's illness with Cathleen Crowley, who has interviewed other Marler Clark clients from the Albany region.

One important message that was delivered in the story was the fact that Emily's doctors did not treat her with antibiotics without knowing whether she was suffering from E. coli or not.  The administration of antibiotics is believed to be a potential contributing factor to children developing hemolytic uremic syndrome. 

As Ms. Crowley reported:

Doctors could not give Emily antibiotics or pain killers, which can slow the expulsion of the bacteria from the body and cause more complications, said Josh Schaffzin, the state Department of Health's medical director of the regional epidemiology program.

After 2 days in the hospital and several weeks recovering at home, Emily was able to start school with her third-grade classmates at St. Pius X School in Loudonville. She's returned to her soccer team and is starting saxophone lessons.

"But she'll never eat a hamburger again," her mom said.

The USDA issued an update to the Topps E. coli recall on October 6, highlighting the products included in the expanded recall.

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Topps Meat Company, the company whose ground beef products were identified as the source of an E. coli outbreak and recalled over 21 million pounds of ground beef in recent weeks, closed today.  Topps Chief Operating Officer Anthony D'Urso, told the Jeff Gold of the Associated Press that a few employees will remain at the processing facility to help USDA scientists investigate the source of the E. coli outbreak, but that the company would not reopen. 

From the AP article:

Topps Meat Co. on Friday said it was closing its business, six days after it was forced to issue the second-largest beef recall in U.S. history and 67 years after it first opened its doors.

The decision will cost 87 people their jobs, Topps said.

On Sept. 25 Topps began recalling frozen hamburger patties that may have been contaminated with the E. coli bacteria strain O157:H7. The recall eventually ballooned to 21.7 million pounds of ground beef.

Thirty people in eight states had E. coli infections matching the strain found in the Topps patties, the Centers for Disease Control and Prevention reported. None have died.

In an article for the New York Times, Kareem Fahim and Andrew Martin reported that USDA officials acknowledged that the recall could have been announced much faster, admitting that a positive E. coli sample from Topps brand meat was identified weeks before the recall was announced.  In the article, David Goldman, who is assistant administrator in the FSIS, stated that, “There is room for improvement,” in the recall process - improvement that food safety advocates have been calling for for years. 

Details on the early warnings USDA had about the outbreak, as reported by the Times, follow:

The Florida case appeared to be among the earliest warnings that Topps burgers might be tainted. On Aug. 17, 15-year-old Samantha Safranek ate a Topps hamburger that her mother bought two days earlier at a Wal-Mart in Broward County. She had cramps two days later and became so ill by Aug. 23 that she was hospitalized. E. coli poisoning was diagnosed on Aug. 26.

The girl’s mother, Ana Safranek, called the federal Department of Agriculture and the Florida Department of Health on Aug. 28. Inspectors removed an open package of Topps frozen burgers from the family’s freezer and sent them to government labs for testing. Those patties tested positive for E. coli on Sept. 7, agriculture officials said.

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Reporter Stephen Hedges questions the way the Topps E. coli recall was handled in an article published today in the Chicago Tribune.  He chronicles the E. coli outbreak investigation and the response by USDA, giving the timeline from the first reported E. coli illness to confirmation of that illness and confirmation of E. coli in Topps hamburger patties and finally the recall and its expansion. 

One of the points Hedges makes in the article is that USDA knew of a positive E. coli test from a meat sample and a human sample over two weeks before the recall was initiated:

Amanda Eamich, a USDA spokeswoman, said that the USDA's recall committee first met on Sept. 25 to consider the Topps case, 18 days after E coli was confirmed in a Topps hamburger, according to Robertson's e-mail, which was provided to the Tribune.

The committee, comprised of department officials, concluded then that it should request a Class I recall of the Topps meat, she said.

Class I is the USDA's most serious recall class. It means that there is "a reasonable probability that eating the food will cause health problems or death."

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