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Bill Marler Goes On The Offensive, Calling Out Industry’s ‘Sorry Safety Track Record’ And ‘Not As Smart’ Pundit

Jim Prevor’s Perishable Pundit, June 16, 2010

Ever since the spinach crisis of 2006, we’ve had the occasion to have frequent exchanges with members of the legal profession — particularly those interested in food safety.

Among those we have interfaced with are the noted plaintiff’s attorney, Bill Marler. Bill is justly renowned as the lead plaintiff’s attorney in many food safety cases going all the way back to the horrible story of the Jack-in-the-Box outbreak, where three people died including a 2-year-old child, and where Bill earned a substantial settlement for his clients.

Bill is not only a good lawyer but in many ways a brilliant strategist. He has positioned himself as a great advocate for food safety, setting up a non-profit, giving charitable donations, giving many speeches, organizing educational programs such as Who’s Minding The Store? at the Seattle University School of Law, at which he invited the Pundit to speak, and writing op-eds, including a well-known and often adapted one for The Denver Post back in 2002 that in food safety circles is called Put Me Out of Business, Please.

All together, this has allowed Bill to avoid being brushed off as a self-serving trial lawyer and given him credibility as an advocate for not just his clients but for food safety generally.

He has done such a good job of this that he has been considered for federal appointments in the food safety arena, and we wouldn’t be surprised if he one day runs for a seat in the US Senate.

Yet ever since The New Atlantis, a Washington, DC-based journal, published as an “Online Exclusive’ our piece, How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions — which explored the possibility of utilizing a change in liability standards to enhance food safety — it seems as if his firm has gone into attack mode.

First, Bill’s partner Denis Stearns declared we were a “tool” of the produce industry… an odd assessment which we discussed in our piece, Marion Nestle, The Perishable Pundit And A Lawyer Named Stearns; We Need Civil Discourse To Advance Effective Public Policy.

That tactic not having been particularly effective, now Bill Marler himself decides to question our intelligence: He read our response to a farmer in Florida that we ran under the title, Pundit’s Mailbag — No Matter What Growers, Shippers Or Retailers Do About Food Safety, ‘You Will Be Sued’ and responded with his own piece: The Perishable Pundit, Jim Prevor, is not as smart as I thought.

In reality, Bill’s disagreements with us have nothing to do with our being more or less “smart”. As best as we can determine, other than the contretemps with his partner, Bill has the following issues with us:

1) He says we “went after Marion Nestle,” although we would challenge anyone to read that article and find any attack by us against Marion Nestle — it is an inconceivable charge.

2) He says that: “Jim is too busy sticking up for the produce industry (as others do for their industry of interest), and ignoring its sorry safety track record over the last fifteen years, to offer an informed critique of the product liability system in the United States.”

It may be clever to say that we are “sticking up for the produce industry” but, even if that were true, that leaves aside the question of whether the “produce industry” is right or wrong.

As it happens, when it comes to product liability the produce industry — which is represented on a national basis by vertically integrated associations that run the gamut from the farmer to the retailer or restaurant — has no agreed position.

And how would “sticking up for the produce industry” preclude one from offering an “informed critique” anyway?

More relevant is his claim that we defend the produce industry’s “sorry safety track record.” Here, though the question which Bill leaves unanswered is what would constitute a “good safety track record,” we can identify significantly less than one 10,000th of 1% of all produce servings that resulted in any illness at all and much less than that which resulted in serious illnesses. We can all look to do better — just as auto makers can look to build safer cars — but it is not clear that this is a bad record.

There are trade offs in life — we can do more testing, bigger buffers, more trapping, etc. Maybe we should, but all these things raise the cost of food, have environmental impacts, etc. Bill Marler gives us no insight into how to balance these concerns and certainly provides no insight that makes clear the produce industry has a “sorry” record on food safety.

3) Bill makes an elaborate point out of the fact that “absolute liability” — in which a plaintiff has to establish only that there is a product-related injury — is different than “strict liability” — in which the plaintiff need show both that the product was defective and that the defect caused the injury. But we were writing in the context of food safety issues for the produce industry and the relevant set of facts is that the product was expected to be eaten raw, had a pathogen (read as a defect), and the pathogen caused an illness or death.

We never said Bill Marler’s job was easy. Obviously there are cases where people get sick and claim it was from a food but can’t easily prove that. Often we rely on epidemiology that is uncertain. That is why plaintiff’s attorneys value having a PFGE “genetic fingerprint,” in which a pathogen can be matched to an illness.

The issue we raised is not whether there is absolute or strict liability — the issue we raised in whether we ought to have a negligence standard.

Obviously plaintiff’s attorneys would prefer not to have such a standard as this because it makes their job even more difficult. Now they would have to prove not only that there was a defect in the product and that the defect caused the injury, but also that the defect is a result of negligence.

We used the example of a parking lot after a snowstorm. If you slip and fall and break your arm while getting your car, the discussion is not over the injury — that is clear — or even over the problem — nobody wanted the parking lot to be so icy, so in that sense one could call that a defect. The issue is whether the parking lot owner was negligent in his maintenance of the parking lot. What is negligent is another issue: there are sometimes legal requirements — say a light every 25 yards — and there are industry standard practices — lay sand down once a day, etc.

The issue we were dealing with is whether food safety could be enhanced by switching to a negligence standard. Right now, having good food safety practices might help a company avoid an outbreak. But outbreaks are so rare in relationship to the amount of product produced, such Black Swan events, that it is hard to justify increased expenditure on food safety based on avoiding an outbreak. But if one could earn “credit” for meeting and exceeding food safety standards — so when the FDA issues a “recommendation not to consume,” it exempts farms and processors operating under an approved HACCP plan, for example — or if in court, the company that was exemplary in food safety was held not liable just the way that parking lot owner is — based on his actions — we think there would be more investment in food safety.

In other words, right now an investment in food safety pays off once — it may prevent an outbreak. Under our suggestion, it would pay off twice: once to prevent an outbreak and second to remove liability if there was an outbreak. In other words the return on a food safety investment would be increased and this would cause more investment in food safety, thus safer food, thus fewer illnesses or deaths.

4) Bill claims the Pundit also “ignores the fact that, in the vast majority of cases, proving a product is defective is nearly identical to proving negligence. In other words, when a bag of romaine lettuce is contaminated with E. coli O157:H7 — a result that the manufacturer obviously did not intend, and planned to avoid — the fact of that contamination proves that the manufacturing process fell short of what was intended. And, lo and behold the falling short is… wait for it… negligence.”

Bill can certainly take this argument to a judge and we don’t doubt many would accept it, but it defies the common meaning of the word negligence and is not the standard we are arguing to adopt. The whole point of a negligence standard is that someone had to do something wrong or at least not do something he should have done. If we go back to our frozen parking lot, the fact that the parking lot owner was hoping to create a safe surface to walk on by shoveling, sanding and salting obviously does not mean he was negligent because someone happened to slip.

Equally, if a farmer hopes to ship produce safe to eat and follows all the FDA directives and recommendations, gets himself audited by companies like Primus, locates the farm in an appropriate area, meets or exceeds the standards the ag extension and food safety experts recommend, but still suffers a freak outbreak — his actions would defend him against liability in precisely the way the parking lot owner’s actions will defend him against liability.

It is important to note that we are not arguing for any particular standard to define negligence. In her piece, Marion Nestle called for every farm to have a HACCP plan… maybe she is right. What is clear, however, is that there is both a negative incentive effect on food safety expenditures and a lack of fairness in bankrupting some farmer somewhere who has basically said to us that he will do anything society wants. Fence his field, build a buffer zone, place traps — just tell him what society wants of him.

But if society decided that we recognize that 500-foot buffer zones covered in asphalt are needed for food safety, but we only want 50-foot buffer zones covered in grass because we also value the environment, don’t bankrupt the farmer because he does exactly what we ask him to!

5) Bill also doesn’t like our use of language: “Jim likes to describe the often horrific injuries that people suffer as a result of defective products ‘collateral damage.’ I am guessing that if it was someone in his family who died or was permanently injured, he would be less sanguine about this, and certainly less proud of coining such a term.”

Funny thing… the man who taught the Pundit this term as applied to food safety was none other than, yes, Bill Marler!

In our discussions during the spinach crisis of 2006, Bill was unhappy with the FDA’s Dr. Acheson allowing spinach back on the market when the FDA didn’t know what caused the problem and had no way to ensure it wouldn’t happen again.

We explained our position — that there was no such thing as absolute safety, and it was just a question of where on the continuum of ever-decreasing risk with ever greater expenditure that society wanted to stop. Bill responded that he agreed completely — the open question was what to do regarding the “collateral damage” — meaning the people that get sick because society doesn’t demand we grow everything in an INTEL clean room and have all ag workers in hazmat suits.

The reality is that, terminology aside, society makes countless decisions that we know will result in injury and death. Why not require everyone to drive at 20 miles per hour? That would save lives from fewer car accidents — but we value the ability to speed things up. Why not require that every house be built of stone — no wood framing allowed. That would reduce deaths due to fire — but we value affordable housing.

The issue for us to wrestle with as a society is how do we deal with the people affected by the societal decision to compromise between various values? Describing the harm done to these people as collateral damage is, in fact, a fair description — and one we appreciate Bill Marler teaching us.

6) We are not sure Bill is as good an economist as he is an attorney. He makes this claim: “The fact of the matter is that strict liability evolved in the United States precisely because the collective wisdom of judges AND legislatures decided that consumers should not have to pay the price when companies like Ford ‘elect to value economy’ — as Jim so coldly put it. Companies do not try to create ‘value’ by cutting corners on safety; they try to create PROFITS. And that is not the same thing. How many people do you think would have bought a Ford Pinto if they had been warned in advance that getting rear-ended would cause the car to explode into a life-ending fireball? Not many, me thinks.”

We will accept Bill’s assessment of how strict liability evolved — although the initial move was judicial. That doesn’t mean it is the right situation for food safety in fresh produce.

Autos are made by very few companies with enormous resources. Produce is grown by countless farmers under conditions of exposure to the elements. Even if strict liability is right elsewhere, it doesn’t follow that it produces the maximum food safety expenditure and effort in fresh produce.

Bill places a great emphasis on the motivations of companies, saying that, for example, Ford would be looking to improve profits when it makes a trade-off and accepts a less safe car in order to have a car that it can produce less expensively. Yet we would say that even if this is truly the motivation, it scarcely matters. Honda will do the same thing and so will Toyota and General Motors, and the competitive pressure winds up compelling them to offer lower prices to consumers.

In addition, less expensive cars open new markets. If profit-driven auto companies only sold cars at the price of Bentleys — many fewer cars would be sold. So there is no contradiction between auto companies wanting to maximize profits and also wanting to have lower cost vehicles to sell.

Besides we don’t view PROFITS as a dirty word. Where does the money come from to develop the safer products of the future — profits.

Although Bill thinks the idea of a company “electing to value economy” over safety is “cold,” we submit that it happens every day in every industry and there is no alternative to it.

When you are designing a car, you can design a bumper to withstand a 15 MPH collision, a 30 MPH, 70 MPH or a 100 MPH collision. Each step is a trade-off in price/weight/fuel economy etc., against safety. The same applies to every building built and countless other things.

The Pinto may well have been an egregious case and, perhaps, many who bought it would not have done so had they understood better the tradeoffs that were made in its design. That, however, is more an argument for transparency or better disclosure than for avoiding all trade-offs.

It is also not obviously true. It is pretty common knowledge that larger, heavier cars are safer — yet people often choose to buy smaller, lighter cars. Some may prefer them but, often, they buy them because they are cheaper to operate and less expensive to buy.

Besides there are so many factors that enter into safety issues that one flaw may not be that significant. Gary T. Schwartz, then a Professor at UCLA School of Law, wrote a paper titled The Myth of the Ford Pinto Case that was published in the Rutgers Law Review. In it he included a compendium of fatalities for different cars based on per million cars in operation.

Take a look and judge for yourself whether even knowing with 20/20 hindsight the fatalities on the Pinto would have persuaded you not to buy it:

CAR MODELFATALITIES
19751976
AMC Gremlin274315
Chevrolet Vega288310
Datsun 1200/210392418
Datsun 510294340
Ford Pinto298322
Toyota Corolla333293
VW Beetle378370

Lee Iaccoca, who was in charge of development for the Pinto, famously commanded that the Pinto had to be under 2,000 pounds and sell for under $2,000. Given this full transparency, it is simply not obvious that this very price-sensitive market would have gladly paid 10% more to get 10% lower fatalities.

7) Finally, Bill Marler makes it clear that it is not really any problem with any specific proposal we have made that motivates; it is an absolutist standard that simply ensures there is no room for discussion: “Jim’s position is that the produce industry should be free from liability because it tries just so darn hard. Well, as far as I’m concerned, the produce industry is not trying hard enough until people are no longer killed and injured as a result of eating its unsafe and defective products. And, if they are unwilling to do that, then they should be sued.”

Some of this is classic “straw man” tactics — we never said the industry should be exempt from liability. What we argued is that once societal standards are set — those who conform to those standards should not be liable. In other words, if the rule is that cars must have bumpers that prevent damage up to 15 mph, don’t sue the car maker if the car gets damaged at 60 MPH.

We also never said that the trade’s current food safety efforts were always adequate.

But we did say that most farmers would be happy to meet any standard at all that Bill Marler or the FDA could define — if meeting that standard would mean they were deemed not negligent and thus not liable in the event of a food safety outbreak. Demand a bigger buffer, set a standard for water testing, declare how high each fence must be.

The truth is that Bill Marler doesn’t do this for the exact same reason the FDA doesn’t do it: Because neither has any idea how to achieve zero foodborne illnesses without sacrificing other values such as the environment or affordable food.

If they actually went ahead and set standards, they would have to wrestle with real life issues, such as how we can produce enough food to feed the world’s growing population. Inevitably the standards they would set would be a compromise and someone would fall ill or die.

But if Bill Marler or the FDA sets those standards, then they would be responsible. Currently they both get to float above reality and demand “safe food” when the reality is that there is no such thing — that every step we take, to increase testing or enlarge buffer zones, etc., is just a step in risk reduction.

Both Bill Marler and the FDA like to demand a vague standard like “adequate fencing” or “appropriate testing” and then, when reality intrudes, hold some poor farmer responsible as they hold that the very fact someone got sick proves, ipso facto, that the standards used were inadequate.

It is a cruel game that destroys farmers and business people and does not help food safety.

We work hard to encourage a discussion and dialogue on these issues, but when the leading plaintiff’s law firm in the food safety world runs around calling people names — “tool”, “not as smart” — it really detracts from the serious business of finding better ways to create safer food.


Oh, and Bill also suggested we audit a course on product liability law his partner teaches. Well, we don’t live in Seattle so couldn’t actually do it, but we are always interested in learning, so if they pass along the text, we pledge to read it.

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