So, following up on my blog post of a couple weeks ago, I finally got a chance to read “Poisoned: The True Story Of The E. Coli Outbreak That Changed The Way Americans Eat” by Jeff Benedict. “Poisoned” tells the story of Bill Marler’s lawsuits against Jack-in-the-Box for the 1993 E. Coli O157:H7 outbreaks at its restaurants.
I was excited to read the book because, based on the review that I read in The New York Times, I expected the story to be a real-life David v. Goliath legal thriller in the mold of Jonathan Harr’s “A Civil Action” (the book about the legendary Woburn, MA toxic tort case that was made into a motion picture starring John Travolta).
Sadly, “Poisoned” is not much of a legal thriller. Nor does it really touch upon much of the technology/science behind food safety and the way that Marler’s litigation changed food safety protocols. I was hoping the book would deliver on one of those fronts – either as a legal thriller or, as its subtitle suggests, a story about the technical side of food safety.
Part of the reason why “Poisoned” did not work for me as a legal thriller was that there was not much of a legal battle. Jack-in-the-Box’s legal liability was clear. After the epidemiologists did their work, there was no doubt that the source of the E. Coli O157:H7 outbreak was Jack-in-the-Box.
A cooked hamburger is a “product” and strict liability attaches to the manufacturers and retailers of dangerous and defective products. Strict liability is a regime of liability that is stricter than a negligence standard; all the Jack-in-the-Box victims had to do to win under a strict liability standard was show that Jack-in-the-Box caused their injuries. Under strict liability, an injury victim does not have to show fault or negligence of any kind.
Even worse for Jack-in-the-Box, the E. Coli victims had a really powerful claim under a Washington state consumer protection law. Most of Jack-in-the-Box restaurants cooked burgers to an internal temperature of 140 degrees. This was in accord with federal regulations. However, right before the E. Coli outbreak, Washington state changed its state regulations and mandated that hamburgers be cooked to an internal temperature of 155 degrees. Cooking the burgers at this higher temperature would have killed off any E. Coli. But most Jack-in-the-Boxes in Washington state hadn’t begun to follow the state-mandated higher-cooking temperature.
This violation of a state public health regulation gave the Jack-in-the-Box victims a claim under the state’s consumer protection statute. The consumer protection statute allowed plaintiffs to recover three times the amount of their actual damages. So not only was Jack-in-the-Box staring at strict liability claims, the value of those claims was multiplied by three under the consumer protection law.
Under normal circumstances, the prospect of such liability would have threatened to bankrupt Jack-in-the-Box. But shortly before the E. Coli outbreak, an insurance executive who served on Jack-in-the-Box’s board of directors convinced the board that Jack-in-the-Box was dangerously underinsured and convinced the board to raise Jack-in-the-Box’s liability coverage to $100 million dollars for incidents such as the E. Coli outbreak.
With $100 million on his hands, Bob Piper, Jack-in-the-Box’s defense attorney, had more than enough money to settle all of the claims. Piper was Jack-in-the-Box’s second defense lawyer, after its first had embarrassed itself with some aggressive litigation tactics that made for really bad PR. Piper’s main objective was to avoid bad PR for his client and settle the cases, thereby earning future business from Jack-in-the-Box.
Midway through the litigation, Piper and Marler went to dinner and Piper said, “I think the time is ripe for settling the case for record money.” Marler’s cases then went to mediation, where the cases were settled for record money. The Brianne Kiner case settled for $15.6 million.
So, as a legal thriller, “Poisoned” did not have much suspense.
Nor did it deliver much food safety science either. Passing reference is made to Jack-in-the-Box’s implementation of the NASA-inspired Hazard Analysis and Critical Control Point (HACCP) food safety protocol, the same system that NASA developed to make sure that astronauts do not get food poisoning in space. But “Poisoned” does not delve into the topic.
“Poisoned” does, however, emphasize how much lawyering revolves around character. Bill Marler, as the story makes clear, is a tremendously stand-up guy whose worldview does not revolve around money. In fact, the Jack-in-the-Boxes cases came his way from a woman whom he once helped with a personal injury issue and for which he took no fee at all. Marler’s compassion and demeanor impressed the victims’ families. He was more than generous to his former law partners in a squabble over legal fees from the Jack-in-the-Box cases.
In fact, it was Marler’s even temperament that probably helped the cases to settle on such favorable terms. He always maintained an open dialogue with Bob Piper and, unconventionally, reached out to and met with the insurance adjustors personally. When it came time for mediation, the insurance adjustors recognized Bill from having met him previously — and they hadn’t even met face-to-face with some of their own lawyers who were there!
Since the Jack-in-the-Box cases, Marler’s settled more than $600 million worth of food contamination cases. He spends much of his time lobbying for food safety measures that could put him out of business. It seems he has always been a man on a mission, rather than merely a man with a case.
This blog in maintained by the Boston foodborne illness & contamination lawyers at The Law Office of Alan H. Crede, P.C.