Modern grocery stores present shoppers with a wide array of food choices, but most of us tend to think more about our food preferences than whether the options available are safe to eat. We can take food safety for granted most of the time thanks to a complex network of food laws, regulations and oversight, largely informed and enforced by attorneys.

Students in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law have the rare privilege of studying foodborne illness law with two of this country’s top food safety litigators: Bill Marler and Denis Stearns.

Bill Marler got his start in food safety litigation when he represented Brianne Kiner, a young girl who was severely sickened after eating a hamburger tainted with the deadly E. coli O157:H7 bacteria from a Jack in the Box franchise in the 1990s. Around 700 people fell ill during the outbreak, and four children died. Marler ultimately represented many of them.

 

Foodborne Illnesses

Denis Stearns served as opposing counsel in the lawsuit and later joined Marler’s firm, Marler Clark, in Seattle. After two years of litigation, Marler won a $50 million settlement for the plaintiffs, including $15.6 million for Brianne. It was the largest foodborne illness award in U.S. history. Since then, the two attorneys have been determined food safety advocates, representing clients in personal injury cases involving seriously ill plaintiffs who ate contaminated food. Bill Marler continues to lead Marler Clark; Denis Stearns now practices in his own specialized part-time practice, Stearns Law, PLLC, an Artisanal Law Firm in Port Townsend, Washington.

The Centers for Disease Control and Prevention estimates that 48 million Americans are sickened annually by foodborne illness, representing roughly one in six Americans. Of these individuals, 128,000 are hospitalized and 3,000 die each year. Not only does foodborne illness cause considerable suffering for those who fall ill, it also entails a significant economic cost. The USDA’s Economic Research Service estimates that the 15 pathogens that account for 95% of identifiable pathogens in foodborne illness impose an annual cost of $15.5 billion.

Identifying the cause of foodborne illness is one of the great obstacles to obtaining an award for a plaintiff who is the victim of foodborne illness. The problem? The key piece of evidence – the food – is frequently lost, having been eaten or discarded.

Plaintiffs often must be part of a larger documented outbreak, such as the Jack in the Box E. coli outbreak, to demonstrate that a particular food made by a specific manufacturer caused the plaintiff’s illness. Or, as in the case of Marler and Stearns’ client Rick Schiller, he ate some of the chicken contaminated with salmonella that sickened him but put the rest in his freezer, allowing investigators to affirmatively trace the strain of salmonella to chicken producer Foster Farms.

While Marler and Stearns have made names for themselves as among the most respected and successful attorneys practicing in food safety litigation, they are also tireless advocates for making food safer for consumers. “Put me out of business,” is Marler’s oft-spoken refrain. Stearns is a noted scholar in food law.

 

Government Policies

Marler was an advocate for making E. coli an “adulterant” under federal food law, meaning that the sale of any product contaminated with E. coli is considered illegal. The USDA adopted a zero-tolerance policy for E. coli in ground beef after the Jack in the Box outbreak, which was the first time the federal government classified a pathogen as an adulterant in meat or poultry. Later, the USDA expanded this zero-tolerance policy to cover other beef products and added additional strains of E. coli to the list of adulterants. And the policy changes have had a significant effect: Marler reports that, whereas E. coli in hamburger constituted 95% of his cases, today he has very few cases involving that pathogen in hamburger.

Today, Marler and Stearns are pushing for a similar rule for salmonella, a pathogen that is frequently found in poultry. Salmonella accounts for over 1 million cases annually and nearly 20,000 hospitalizations, costing the United States $3.7 billion each year. Marler filed a petition with the USDA asking the agency to label a dozen particularly virulent salmonella strains as adulterants. While the USDA has rejected that petition, it is proposing significant changes to salmonella regulation.

 

Learn More

In the LL.M. Program in Agricultural and Food Law, we address these cutting edge issues in classes like “Food Safety Litigation” offered by Marler and Stearns and throughout our specialized curriculum. The program is offered 100% online. It can be completed in two semesters (24 credits needed) with the option of up to four years to finish. Demand is increasing for attorneys who understand the complex issues covered in the program.

The program offers a full range of distance components to combine the educational benefits of classroom interaction with the efficiencies of remote participation. Distance students may participate in on-campus classes live through synchronous videoconferencing when scheduling permits. Classroom capture and online exercises provide a convenient alternative. In addition, the program offers innovative hybrid courses, self-paced, guided online study, and condensed on-campus opportunities.

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