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Marler Clark dominates one-half
of the 66th floor
of the Columbia Center, Seattle's tallest office building. It's
Friday, and Marler, in standard partner attire-shorts and a polo
shirt-stands at the window with a phone in one hand and double
nonfat latte in the other. He's up so high, he can stare the
Olympic Mountains right in the face.
But he's focused on his call. He's talking about his trip to
Georgia three days earlier to tour a ConAgra-owned peanut butter
plant, the source of the Peter Pan and Great Value
Salmonella outbreak reported last February. The plant
officials thought he would send an employee to look around;
instead, to their dismay, he showed up in person. During the tour,
he noted where it looked like someone had shot BBs into the factory
ceiling to drain rainwater from the insulation. He also wandered
away from the tour and into a room where the walls had holes to the
outside and raccoon tracks through the dust.
A few minutes after describing the scene in Georgia, Marler gets
another call. This time it's from a family poisoned by the peanut
butter. The wife has to have part of her lower intestines removed,
and they don't have any money, says Marler, as he spies the phone
number on his cell-phone screen. "I'm trying to get the ConAgra to
advance them enough prior to the settlement to pay their hospital
bills."
Now, instead of fighting for firm resources and struggling to
convince the senior partners that his plaintiffs' cases are worth
pursuing, Marler is the senior partner. Instead of waiting
for the news to tell him about the outbreaks, he's out
investigating for himself. Marler doesn't just go to the library to
do his homework. He goes to Salinas Valley (where he and his
investigator were able to trace the source of the spinach outbreak
before the FDA even issued a consumer warning), and Georgia, and
Oklahoma (where ConAgra is headquartered). His firm has an
epidemiologist on staff who helps determine whether a client has a
legitimate complaint, and advises the lawyers on cases. And Marler
has a friend, a former Lewiston, Idaho, journalist, whom he sends
around the country to investigate when outbreaks happen.
Marler's firm also has a public-service mission. That first
year, the partners formed OutBreak, a nonprofit consulting firm
dedicated to training the food industry in how to prevent
outbreaks. "Lawyers tend to take a lot of personal and political
hits for being ambulance chasers . . . money grubbers," he says.
"I'm sensitive to that." By sharing cautionary tales of past cases,
the partners hope to scare food producers into prioritizing food
safety. Marler routinely challenges them to "put me out of
business."
Right now our food-safety system works against food safety, says
Dennis Stearns. For example, if restaurants had paid sick leave,
more food workers wouldn't be passing illness on to customers.
"Right now under some versions of the food code, managers at the
beginning of each shift are supposed to go around and ask, 'Does
anyone have diarrhea?' And people are supposed to raise their
hands," says Stearns. "Even if you're on your death bed, you're
expected to find someone to work your shift. The whole thing is
stacked against people staying home and not working."
By sharing their expertise, the lawyers are fully aware they are
providing good PR for the firm. But they also hope to prevent bad
food-handling decisions. In April, Marler flew to Washington, D.C.
to attend congressional hearings where some of his clients were
testifying about the need for better inspections and more
regulations, and to deliver written testimony about the safety of
our food supply.
Marler has never had a case where he could say it just happened.
"There is always a situation where a company has made a decision
not to do something or to do something, and now they have to deal
with the consequences," he says. With Jack in the Box, the company
had already heard customer complaints that the burgers weren't
thoroughly cooked, and the Washington State Legislature had
mandated cooking the meat to a higher temperature. But the company
wouldn't let go of its quick-cook times. That was the mistake, says
Marler. In the case of Odwalla, the company had heard from
customers made ill by their juices. Even worse, after touring the
California plant and citing plant sanitation concerns, the U.S.
Army had rejected a proposal to sell Odwalla juice at its
commissaries. All this happened prior to the outbreak, says Marler,
but the company continued to sell juice to pregnant women and
children.
"There's never a situation where some nice, decent businessman
just got caught making a tiny error," says Marler. "They had the
information. They didn't do anything. And people died."
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