E. Coli Cases Prompt Legal Action

Spinach, tainted by E. coli bacteria, has reportedly made about 200 people in two dozen states sick. At least three people are said to have died from the outbreak. Lawmakers and advocates are demanding federal authorities do more to eliminate the contamination. Farai Chideya talks to William Marler, a Seattle attorney representing more than 90 people affected by the outbreak and Marler's client Ken Costello who recently lost his mother-in-law to E. coli poisoning.

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FARAI CHIDEYA, host:

From NPR News, this is NEWS & NOTES. I'm Farai Chideya.

Spinach tainted by E. coli bacteria has sickened roughly 200 people in two dozen states. At least three people are said to have died from the outbreak. Federal authorities say they're working hard to minimize the risk. Now lawmakers and advocates are demanding that more be done.

William Marler is a Seattle attorney representing more than 90 people affected by the outbreak. One of his clients is Ken Costello of Bellevue, Nebraska. Ken's mother-in-law died on August 31st from E. coli poisoning. Both join us by phone, now.

Gentlemen, thank you for coming on the program.

Mr. KEN COSTELLO (Son-in-Law of E. coli Victim): Thank you.

CHIDEYA: So, Mr. Costello, I'm going to start with you. You and your wife Polly are represented by Bill Marler, and you lost your mother-in-law to this bacteria. How did you find out that it was E. coli that caused her death?

Mr. COSTELLO: It was initially not diagnosed in the hospital. Apparently, fairly routine not to do an E. coli test. It was after the - well after the fact when we started to hear news reports mid-September that an E. coli outbreak had in fact occurred in Nebraska, one of the later states to be reported.

When we learned that, we inquired at the county health department if they would test the bag of spinach, which we still had. They would not because her death was not E. coli-related. So I had to find an independent lab and then submitted that the 27th of September and it was returned positive on the 25th of September.

CHIDEYA: So you kind of had to be your own detective on this?

Mr. COSTELLO: Yes. There was so much interest in - that many people had bags of spinach that they wanted to get tested. I think there simply wasn't the capacity on the part of the health department to do them all. And I think that's probably a shortcoming and there needs to be a surge capability where they can test large numbers of samples, you know, well beyond what they normally do in a, you know, in a testing period.

CHIDEYA: You got sick too. What were the symptoms that you experienced?

Mr. COSTELLO: I just had an intestinal cramps, pain, distress and some diarrhea. You know, just felt very blah, didn't want to do anything. Wanted to lay down, go to sleep until, you know, days later when I got better. And finally, I went to this - to my family physician because I thought I just need to get rid of this, it's not going away.

He diagnosed it as diverticulitis because similar symptoms and I've had it a few times before. Got an antibiotic, which is very effective in alleviating the symptoms of that malady, but didn't really do anything at all in this case -and I very gradually improved over the next four days.

CHIDEYA: Let me go to you, Mr. Marler. How did you connect with Mr. Costello? I mean this is now a nationwide issue. And still, in the grand scheme of a country that includes 300 million people, 200 is not a large number - but it's a warning signal that something's wrong. How did you connect with Mr. Costello, and tell us about how you're representing him in this case?

Mr. WILLIAM MARLER (Attorney) Well, I do E. coli cases. It's kind of an odd niche for a lawyer, I suppose, but I've been involved in E. coli cases in some respects from the very beginning - in 1993 in the Jack in the Box E. coli cases up to through the present. So it's not unusual for people to find me through the course of trying to find somebody that knows what they're doing in this instant.

You know, one thing that I think is really important to understand is that, you know, we use numbers like 200 and 3 deaths. That is a number that is grossly undercounting the number of ill people that this outbreak has impacted. Any health official from the CDC or otherwise would tell you that they're likely somewhere between 5 and 10 times the number of people that got sick. It's just simply that more of them are like Mr. Costello who got sick, but not severely so. So this is likely a problem of, you know, proportions that are 3,000 or 4,000 people not 200. So it's really important to put this in context, that this could have been much, much more severe than it already was.

CHIDEYA: You represented families whose children died in the Jack in the Box incident where it was hamburger meat that had E. coli in it.

Mr. MARLER: Right.

CHIDEYA: Is there anything now that you know, that you didn't know then, about who should be responsible for keeping food safe?

Mr. MARLER: Well, that's a very good question as well. I mean, the one thing about hamburger meat, and that we've seen an amazing change since 2002. There was a large retail outbreak called the ConAgra outbreak. Nineteen million pounds of meat was recalled. You know, there were only - in that instance were 40 people sickened in dozens of states, and a death.

In 2002, and the years before that, that was almost all of the work that my office did was hamburger-related E. coli cases. Since that time, the number of cases of E. coli-related to hamburger meat that I see in my office has dropped to a very, very, very few. The industry, in conjunction with retail outlets and consumer groups and the government, really turned the corner on how to prevent this.

And unfortunately, what - during that same timeframe, from 2002 to the present, there's been an enormous increase in fresh produce and vegetables-E. coli-related outbreaks. And that same sort of focus really needs to be made on these products, like they did in hamburger, to prevent these sort of tragic deaths and illnesses. I mean there are still children in the hospital on dialysis in this outbreak. This is not over. In some respects, they're still counting the bodies. There's another death in Maryland that is related to this. It just has not been counted as such, yet.

So more needs to be done, and they can use the meat industry as a model.

CHIDEYA: Mr. Costello, you can never really put a dollar figure on the life of someone who you've lost. Why is it important for you to pursue a case? And I'm presuming you're asking for damages. I mean, what do you want to happen out of this?

Mr. COSTELLO: Well, ultimately, what we'd really like to have happened, as Mr. Marler mentioned, is, you know, we'd like to see this problem either fully corrected or greatly diminished. We can't bring back the dead, unfortunately. In the real world, sometimes the intentions are well meaning but monetary damages, the fear of them in the future, are what really get things corrected.

CHIDEYA: Tell me a little bit about your mother-in-law who was 81 when she died. What kind of person was she?

Mr. COSTELLO: She was very much engaged in life, looking forward to a big event here in Omaha this week where our daughter is being honored - was to go over the Labor Day weekend with us to a wedding for an old family friend. She just -she cherished spending time with - especially people younger - and was very much an ongoing concern, and lived with us because we wanted her company and she wanted ours. And she's been with us for a year-and-a-half, and was very vibrant and alive.

CHIDEYA: Mr. Marler, I'm just going to end with you. So you have successfully petitioned for financial damages, which can influence corporate behavior and government behavior. What do you think needs to happen if - on a governmental level…

Mr. MARLER: Sure.

CHIDEYA: …particularly?

Mr. MARLER: Well, I'll give you a great example. I was at the hearing here in the California State Senate on Wednesday, and there were a number of industry folks, victims, advocates. And the whole focus was how to prevent one of these outbreaks from occurring again. And that's the sort of focus that needs to be, you know, brought to bear on this issue.

What was interesting is the folks that didn't show up were the CDC, the FDA, the companies - they're really in center of this outbreak. Everybody's waiting for someone to do something, and I was very pleased to see that the state Senate here in California was actually stepping up at least to investigate, to try to figure out. As one of the Senators say, you know, let's try to take as many of these problems off the table. What he meant by that was there has been enough outbreaks, over 20 of them related to fresh spinach and lettuce over the last 10 years. There have been hundreds of illnesses and now, you know, several deaths. The common denominator in all of those outbreaks has been contamination in the field likely related to groundwater contamination or surface water contamination.

So once that bug gets on the lettuce or the spinach, it's nearly impossible to get it off. Some even theorize that the bug is actually, you know, absorbed into the plant's structure.

So what really needs to be focused on in Salinas Valley and, frankly, agriculture generally, is that especially in ready-to-eat product, product that there's not a - you don't cook it, there's not a kill-step involved - you really need to be very careful about what inputs, and water in these products in a big input. So my hope is over the, you know, the relatively short run that they start to resolve a water problem that's probably not just focused on the Salinas Valley.

If we did that, it's highly likely that they would ultimately put me out of business, similar to what they've done in the meat industry.

CHIDEYA: Well, Mr. Marler, Mr. Costello, thank you so much.

Mr. MARLER: Thank you.

Mr. COSTELLO: Thank you.

CHIDEYA: William Marler is a Seattle attorney representing more than 90 people affected by the outbreak, including Ken Costello of Bellevue, Nebraska.

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CHIDEYA: Coming up, the Army sets a minimum troop level in Iraq. Is that a warning signal? And Muslim cab drivers say carrying passengers who've been drinking alcohol is against their religion. We'll discuss these topics and more on our Roundtable next.

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