Will a Court Suit Help Produce Truth, and Justice, in the CA Children’s Illnesses?
Friday, February 8, 2008 at 10:09PM Yes, it is sad news about the families of Lauren Herzog and Chris Martin suing Organic Pastures Dairy Co.
As I’ve written before, it’s too bad the families haven’t been able to get on with their lives and leave this situation behind. And as Kathryn describes so well in a comment following yesterday’s post, a court suit is a source of negative energy in a family for a long time, since court suits can drag on for years.
Yet I should also say that when things seemed to be getting out of hand in discussions about the case on this blog at various points over the last year, several people, myself included, advised Mary McGonigle-Martin and Melissa Herzog to end their online accusations and consider legal remedies if they really thought they had a case. (If you're new to this blog, I suggest doing some searches under "McGonigle-Martin" and "Herzog".)
With all that being said, a few things puzzle me at this point. First, in all the discussion on this blog, and there has been a lot, I never once recall reading about the medical expenses. I understood the Martins to have been covered by insurance, and that they were investigating with their HMO its procedures in Chris’ illness. I assumed the Herzog family similarly had insurance. (Mary tells me they've been advised by their lawyer not to comment any further.)
If there were outstanding medical bills, and no one seems to be suggesting there are, wouldn’t the insurers be the appropriate ones to file suit? Bill Marler, the “food poisoning” lawyer whom I assume is handling the case (he doesn’t quite say so in his blog posting about the court suit) says Lauren “was discharged with over $250,000 in medical bills” and Chris “was discharged…with over $450,000 in medical bills.” Yeah, every patient leaves the hospital with bills, and in most cases, insurance companies pay them off. Related, the suit doesn't appear to seek specific damages. (I haven't yet been able to obtain a copy of the suit.)
Another thing that’s curious is the “government report” about the case, which is a written description from California’s Department of Health Services, done a year ago nearly to the day. It is addressed to “file” and never seems to have been publicly disseminated. You would think that the California Department of Health, which has been an ardent opponent of raw milk, would have wanted to trumpet its findings.
The memo itself never identifies Organic Pastures by name, referring only to “Brand A dairy.” And, as others have mentioned, it seems especially strange that the California Department of Food and Agriculture would have settled with Organic Pastures via a cash payment over the shutdown of the dairy in September 2006 based on the Health Services' conclusion that “the source of infection for these children was likely raw milk products produced by the dairy.” Or was there some doubt somewhere in the bureaucracy about the veracity of Health Services' conclusion?
There are a few other curiosities, one being the Health Services’ depiction of the six children’s illnesses: “Four patients drank raw milk regularly. One patient drank raw milk only once; he was served raw chocolate colostrum as a snack when visiting a friend. One patient denied drinking Brand A raw milk but his family routinely consumed Brand A raw milk.”
So, if I’ve got this right, five of the six ill children were confirmed drinkers of raw milk during the suspected danger period. And one of those five—Chris Martin—was never diagnosed with E.coli 0157:H7. So really, we have four confirmed raw milk drinkers who had E.coli 0157:H7—one-third of the children are already in doubt about what they consumed or what illness they had. Plus, the report suggests that a boy was the only one who drank raw milk only once, yet many times on this blog, Melissa Herzog said Lauren was served raw milk once while visiting her father (they were separated), and that otherwise she didn’t drink raw milk. So now we have questions about a third illness, or half the children.
If this thing isn’t settled in advance of going to trial, I can see where the lawyers are going to have a field day trying to figure out who did what to whom, and when. And remember, the E.coli 0157:H7 found in the five children was never picked up in all the many tests of animals and milk at Organic Pastures.
Reader Comments (17)
Having just read the article linked by Dave Milano on the prior post, about Smithfield's monopoly of pork production, and how it does it, I'd say the "end" is quashing any and all awareness of the benefits of natural, unadulterated, unprocessed, non-corporate foods. Granted OPDC is a corporation, but it is a mere mosquito biting the flank of the pasteurized milk combine. If my suspicions about the motive driving the attorney who filed this suit are correct, he is scratching the itch for the corporate behemoth. The fact that OPDC is a corporate model for providing raw milk to California, a state with an economy larger than most countries, is all we need to know to understand why damaging its reputation may be the "end" here.
The Martins and Herzogs may be being used as pawns in the corporate game of destroying the competition by any means at hand.
Bob
Mellifera describes Tahitians as essentially self-sufficient food producers (“…everybody's got a little chunk of land they grow sweet potatoes and breadfruit on, and they fish, and the only food they buy is imported stuff that doesn't grow in Tahiti anyway.”) But the government is unsatisfied. Perhaps Tahitians themselves are unsatisfied as well. They want more “real farms” (read: large, American-style mono-agriculture) to bring more money—for the people, and generally for Tahiti (including, not incidentally, the Tahitian government).
Now the thing is, the government bureaucrats and politicos are probably right about the money. Big business does bring money, and would likely increase individual Tahitian’s buying power. But “increases” don’t necessarily mean “improvements,” especially when it comes to money. The change from decentralized food (and decentralized business generally) to monoculture would also change Tahitians from farmers into “workers,” make the government a super-tax collector, and (and here’s the real kick in the behind) link Tahiti forever to outside interests. Those are the first steps an inexorable loss of personal freedoms. All for “prosperity.”
If Tahiti chooses that road or is forced onto it by conquest, in a mere blink of time Tahitian’s will be, like us, suing each other for damages.
(1) I'm with you on the medical claims, but the larger issue here really is future medical and lost work. However, with our insurance policy we would have been out a good bit on those bills.
(2) On the state documents referred to in the report, I have been working on hunting down the primary documents. We'll see where that goes, but a lot of the docs in this case are going to be confidential (patient and dairy info). I thought some would be in the AB1735 file, but the report is such a snoozer I took a nap in the Assembly Ag office. Perhaps when they sent the file to Bill Marler they forgot to make copies and sent him the originals.
(3) Where is the settlement with the dairy? I haven't seen it.
(4) The link between the children is strong enough to have my attention. The child whose parents are raw milk consumers but claimed the child didn't consume it before the outbreak (and yet the fingerprint matched): we are a motley group. If this parent is a friend of mine, why have you not given me a call?
The bacteria wasn't isolated in the Martin case but if there is anything this case should be teaching us it is that it is difficult to identify the pathogen. Look at the cow case: five clusters were positive and then only three cows were identified in the follow-up. The negative test of at least two other cows in the follow-up suggest that this is not all that easy. Perhaps Mary can also verify if they tested her son before they gave the antibiotics.
Does anyone know how a child would develop HUS except through E. coli?
(5) Have folks around here not had sick children?
Is a lawsuit evidence that the victims are wallowing in victimhood?
If I could relate my own mental health struggles to a Monsanto GM food item and sue them for lost work in my postpartum days, lost time with my son who will never be an infant again, and for future struggles I may have as a result, would that be wallowing in victimhood too? In my case, if I could link the two, I would apparently choose to wallow in victimhood (and not because of the money).
The moms here are not the enemies. Pathogens and the declining state of our own health that makes us more susceptible -- those are the enemies.
Amanda
http://www.emedicine.com/EMERG/topic238.htm
http://www.nephrologychannel.com/hus_ttp/index.shtml
Apparently HUS may be contracted from (not all inclusive) eating undercooked meats, recent visits to a petting zoo, a nursing home visit to a relative with diarrhea, visits to water-parks/pools, various medications, other diseases/illnesses,etc.
http://www.pulmonaryreviews.com/sep00/pr_sep00_antibiotics.html
As per this link, the medical profession knew back in 2000 the increased risks of giving antibiotics and the development of HUS, so the physicians who did not correctly diagnose the illness have been neglegent and are at fault,IMO.
http://pediatrics.aappublications.org/cgi/content/abstract/100/1/e12
In the late 90s, studies showed the importance of with-holding treatment when the potential for HUS was present.
I too, would be out for blood if I believed some entity or person harmed my child. I would go after those who are at fault. As others have posted, it may be that the parents are being lead to go after any and all potential parties for other reasons than making the true guilty party pay.
http://www.reuters.com/article/bondsNews/idUSN2331519620070423
http://www.marlerclark.com/news/dole_spinach_WSJ.htm
I do not have a problem with advocates going after those who are truely at fault. The person who posted unprofessionally on this blog turned my stomach.
I thought at the time that "Lisa" was probably Marler or someone working for him and that he was hoping someone would get sick and blame raw milk, because it's a lot easier to go after someone like Mark than Cargill or ADM, with their vast armies of corporate lawyers -- even though they're the ones making people sick. To be fair, Marler seems to have gone after them too, at times. But I think he was fishing for a case against a small producer because they're easy pickings. The fact that the report appears so bogus, and he flagged it on his blog as this hugely authoritative, damning document ("have any of the raw milk fans even read it???"), strengthens my suspicion that he knows the case is fake, but hopes to win it anyway. Or at least generate some buzz for his business.
Insert cynical lawyer joke here...
http://www.thecompletepatient.com/journal/2007/7/19/no-matter-how-you-slice-the-data-and-theres-lots-of-it-its-d.html
I assume the story then is that they can rule out medications (since they know what Chris had) and other types of bacteria because of the way HUS progressed in his body.
If they can diagnose it as 0157:H7 then the question is: from where? Someone else's poop? A public pool? A petting zoo? A raw milk product involved in five other cases?
AuLait -- the cow poop tests were two months after the outbreak. I don't know how many new generations of 0157:H7 might form in two months. That would be an interesting factoid.
On the spinach -- haven't we all been told this is about spinach? There is no case here for spinach as far as I can tell contrary to a press release just six weeks ago (which also has several inaccuracies when we consider the state report):
http://www.westonaprice.org/federalupdate/aa2008/04jan08.html
That the state mentions it only tells me they know that we have all assumed it was spinach.
Can someone tell me a story tying this data to spinach? I would like to hear it.
AuLait, the number I've heard on the "substantial settlement" was 11K. Should we really use that amount of chicken scratch as evidence that there was no raw milk outbreak?
Someone tell me a great story here. Tell me how these children are linked. The story the report tells me is that there was a raw milk outbreak from 0157:H7 back in Sep 2006.
Amanda
"I too, would be out for blood if I believed some entity or person harmed my child. I would go after those who are at fault. As others have posted, it may be that the parents are being lead to go after any and all potential parties for other reasons than making the true guilty party pay."
Sylvia, I concur...sort of.
If someone...anyone...harmed one of my sons through neglect, I would send them a lesson never to be forgotten. If someone wants to play hardball, I've been known to give lessons.
However, what about when your "if I believed some entity or person harmed my child" included a small farmer who was doing all possible to do things right? Who was taking proper precautions? Who was doing everything that could reasonably be expected of said small producer?
Bottom line...what about when "shit happens"?
Because it does. Accidents DO happen, and mistakes ARE made, regardless of how careful a producer might be...regardless of how many regulations a state might have, regardless of what the USDA might accidentally do to "protect you" while actually protecting big agri without regard for you. Accidents DO happen.
So...do you sue everyone, as your post suggests? "I too, would be out for blood if I believed some entity or person harmed my child. I would go after those who are at fault."
What about when "some entity" is your neighbor who meant no harm, exercised due caution, and simply made a mistake? The only difference between a neighbor and a small farmer you charactereize as "some entity" is address...are they close enough to be considered a neighbor, or is there some magical distance, or some magical gross annual sales amount, that turn them from a "neighbor" into "some entity"?
The bottom line is that the only difference between your neighbor who makes a mistake and some company (like McAffees Organic Pastures) who happens to be a couple of miles too far from you to be "a neighbor" is ONE thing...a fast talking lawyer who convinced you that the ONLY way you can be made whole is to sue...and of course, when you sue, sue everyone for everything. I believe lawyers characterize it as "throw enough shit on the wall and some will eventually stick."
This BS will stop, and we might actually have a chance to make headway, if and when we stop with the infighting that only feeds the greedy lawyers, and all get together and fight this war from one side. Maybe I spent too much time near a liquor store today, but I believe that CAN happen. Will it? I dunno...it's up to you folks...I'm just a little dumb farmer.
Bob Hayles
Thornberry Village Homestead
Jasper, GA
Thornberry Village Homestead...a small goat dairy owned by God, managed by Bob and Tyler.
Yes, "shit" does happen. As I stated in my post, I felt it was the physicians at fault for not diagnosing the E-coli correctly and someone prescribing antibiotics and giving it to the patient,thus they ended up with HUS.
Shit does happen, it happened to my son when he was 14. And no, I did not sue his friends parents. If I had thought they had done something with intent, I'd have sued. But, as said, shit happens and you deal with it and move one.
I've not been sued, but have heard that if your name is on a patients chart you have the potential to be named in a lawsuit, even if it was not you who caused or contributed to whatever error occured.
BTW, careful with the booze and being on the farm, my great uncle was 3 sheets to the wind and got kicked in the head by a mule, he was never quite the same.
It appears that the state didn't investigate all avenues that the E-Coli may have come from. It appears the attitude was, Oh they drank raw milk, so that must be the source, and stopped looking.
The "report" that was on the Marlar blog from the state showed that the state was inconclusive as to exactly where the E-Coli came from. It was speculation.
http://en.wikipedia.org/wiki/2006_United_States_E._coli_outbreak
"The report found 26 samples of E. coli “indistinguishable from the outbreak strain” in water and cattle manure on"
The spinach also appears inconclusive. Mid Sept 2006 the FDA advised the public not to eat spinach. The bagged salad threat with E-Coli was made known at least by Aug 2006. http://www.associatedcontent.com/article/52460/bagged_salad_e_coli_threat.html
http://health.dailynewscentral.com/content/view/0002432/41/
According to this the cow poop was tested within 7-10 days of the FDAs spinach news.
http://www.ethicurean.com/2008/02/08/raw-milk-suit/
Oh I get it, Amanda, you are against raw milk.. enough said. Duh sometimes I am slow.
Bob
On the spinach, I don't know that much about the timeline in that outbreak. I wrote something in the comments on the Ethicurean about why it doesn't look like spinach to me.
You should read all of my posts at the Ethicurean and here. You may learn that I wrote the analysis of AB 1735 and the press release on the initial campaign. That's how much I'm against raw milk.
I'm sorry to cause cognitive dissonance here. I just happen to know that raw milk may have a pathogen in it and yet I still drink it.
Amanda
The use of antibiotics in HUS is controversial. There are no perfectly right cookbook answers. Studies, including meta studies, have been less than persuasive. I say this not to judge either side, but merely to temper some of the related conversation.
With that said, I would also like to repeat something I wrote here nine months ago regarding studies that purport to "prove" one thing or another (just my own opinion of course):
Good physicians... know about the difficulties in establishing firm rules about medical practice, and as a result they sometimes hold best-practice standards at arms length, especially when faced with potential tragedy in a patient. I can only sympathize with doctors who do that, because they run the risk of losing big no matter what the outcome. I don't know, but it is certainly possible that in Chris' case the doctors made considered decisions about risk and benefit, and decided to go with their intuition.
*****************************
and Bob,
Regarding this:
'If someone...anyone...harmed one of my sons through neglect, I would send them a lesson never to be forgotten. If someone wants to play hardball, I've been known to give lessons.'
In court, "negligence" is defined as "mistakes." It seems to me that we all harbor a double standard to some degree. In or out of court, the plaintiff side easily rationalizes revenge; the defendant side sees only mania and incoherence in the defendant.
I see the problem ultimately as systemic and socio-political. There is far too much distance (i.e. far too little relationship) between plaintiffs and defendants.
David asked the right question in his headline. "Will a court suit help produce truth and justice...?" Unlikely, as long as humans are in charge of the system.
I apologize, you are right, I do need to read entire posts so that I don't jump to conclusions.Again I am sorry.
Amanda