We Won't Know the Truth About the CA Illnesses Till They Go To Trial, and Even Then...

We on this blog should be candidates for the jury in the suits by the two mothers against Organic Pastures. Actually, we’d probably all be disqualified for knowing too much and having strong opinions.

I’ve been critical of Mark McAfee’s handling of this situation in the past, but I’d like to come to his defense in making reference to the sick kids as having consumed spinach. I think he’s referring to what he was told in the initial hours after the kids became ill, by parents and state authorities.

People have since changed their stories, and the moms have in previous postings pressed their contention that not all the kids consumed spinach during the days before they became ill. It’s important to keep in mind that there have been all kinds of inconsistencies—both in what’s been posted here and what the California public health authorities state. I went through a number of these inconsistencies in a posting last month—to the effect that three of the six cases are in some doubt or confusion about what pathogen they had, what they consumed, where they consumed it, and even the sex of one of the children.

I’m not sure if Mark is making such a statement intentionally, but by now raising his contention that they all consumed spinach, he is reinforcing the fact that lots about these cases is confusing. The stories will only count for something if and when depositions are taken in preparation for a trial. At that point, lawyers can cross-examine the parents, children, public health officials, etc., etc. to point out inconsistencies.

I suspect at that point the confusion will be even more pronounced than it is now. So perhaps we should be glad we won’t be on that jury.

***

In response to Diane Reifschneider’s excellent comment on my previous post, I believe the Farm-to-Consumer Legal Defense Fund has confined itself only to cases that directly affect the rights of consumers to access nutrient-rich foods.

Comments

[Stacey]

I think Mark McAfee is the only one that is confused! The story here has been the same all along. I have read back many months and read what the families have written about the children. Mark also frequents this blog. It boils down to a matter of believing ONLY what you want to believe!!

[concerned person]

There’s a Shiga toxin outbreak unfolding in Texas. Six people in 3 counties are ill and one child already died. At this point, pathogen that has caused everyone to become ill has not been identified. It’s probably ecoli 0157:H7.

Let’s see how long it takes to identify the pathogen and if all the victims have the same matching blueprint. The case we’re discussing on this blog started just like this. It involved many counties in California.

Go to www.ecoliblog.com for details

[Ken Conrad]

Concerned person,

In light of the complex nature of these diseases your assumption is a huge leap of faith.

Ken Conrad

[Kirsten]

Can anyone tell me if the OP labeling have any sort of warning on it? Does it state that it has live microorganisms in it?

Thanks.

[Central Valley Mom]

My OP milk label has a government warning that says "Government Warning: Raw (unpasturized) milk may contain disease causing microorganisms. Persons at highest risk of disease from these organisms include newborns and infants, the elderly, pregnant women, those taking corticosteroids, antibiotics and antacids, and those having chronic illnesses or other conditions that weaken their immunity." Also printed on the label is "Living Foods For Life".

[Kirsten]

Thanks, CVM!

[MaryAnn]

Just curious (sorry if this was discussed before and I missed it)...do folks who enjoy raw milk in the US also drink it when they travel to other countries (Mexico, for example)? I was reading about brucellosis (undulant fever: http://www.cdc.gov/ncidod/dbmd/diseaseinfo/brucellosis_g.htm) in raw mexican cheese and milk. Do raw milk drinkers worry about this, or is it just a bunch of hype?

[David Gumpert]

Mary Ann,
I wrote last June about my experiences buying and consuming raw milk in France.
http://www.thecompletepatient.com/journal/2007/6/30/a-french-view-of-raw-milk-nothing-added-nothing-lost-everyth.html
I suspect, though, that France may well be closer to the U.S. than to Mexico. Still, no matter where you are, I think a lot of the decision comes back to how well you know and trust the producer.

[concerned person]

This was in the news yesterday. Now it has been confirmed it is E.coli. Still no food source identified.


Shiga E. Coli Outbreak, Death Reported in Texas

An outbreak of Shiga E. Coli has officials in Texas working frantically to determine its source. The Texas Department of State Health Services (DSHS) issued a health alert after six cases of the serious diarrhea illness broke out in Bastrop County. Health experts say it is unusual to have this many cases of what appeared to be a food borne illness related to the Shiga E. coli toxin in just a few days. In addition to the six illnesses, one child died. Texas’s Lee and Fayette counties have joined Bastrop County in reporting outbreaks of the toxin.
On Friday, a news release issued by the Texas DSHS stated that the, “Results of laboratory tests to identify a specific bacteria are pending. Shiga toxin illnesses are typically food borne. A common source for the illnesses has not been identified.” The incubation period ranges from one to eight days, though typically it is three to five days and symptoms are gastrointestinal in nature. The Shiga toxin is rare; the U.S. Health Department says it only sees 100 to 200 cases a year, so the Central Texas outbreak is cause for concern.
Shiga is short for Shiga toxin-producing Escherichia coli, which is a type of enterohemorrhagic—or E. coli—(EHEC) bacteria that can cause illness ranging from mild intestinal disease to severe kidney complications. Other types of enterohemorrhagic E. coli include the common and often deadly E. coli O157:H7 which is quite virulent and produces a powerful toxin that can cause severe illness and even death and is the leading cause of food and waterborne illness in the U.S.
Typical symptoms of Shiga E. coli include severe abdominal cramping; sudden onset of watery diarrhea, frequently bloody; and sometimes vomiting and a low-grade fever. Generally, Shiga E. coli is mild and self-limited, lasting one to three days; however, serious complications such as hemorrhagic colitis, Hemolytic Uremic Syndrome (HUS), or post-diarrheal thrombotic thrombocytopenic purpura (TTP) can occur in up to 10% of cases. The toxin can also result in death in severe cases.
Cases and outbreaks of Shiga toxin-producing E. coli have been associated with the consumption of undercooked beef (especially ground beef), raw milk, unpasteurized apple juice, contaminated water, red leaf lettuce, alfalfa sprouts, and venison jerky. The Shiga E. coli toxin has also been found in poultry, pork, and lamb. Person-to-person spread, via fecal-oral transmission, may occur in high-risk settings like day care centers and nursing homes. Further studies are being done to better understand the modes of transmission. And, although anyone can become infected with the Shiga toxin, the highest infection rates are in children under age five. The elderly also account for a large number of cases.
In mild cases, antibiotics have not been shown to shorten the duration of symptoms and may actually make the illness more severe in some people. Some severe complications, such as HUS, require hospitalization.
Health officials are warning, if you have severe or bloody diarrhea, go immediately to the hospital. Patients may also experience abdominal cramps.

[Sylvia]

David,

I hope that OP does not settle. I realize that some may settle just to stop the high costs of what can drag into a long court battle.

I think if he were to settle, even if no proof was shown; there are too many people who would look at that as an act of admission. And those who oppose the freedom to choose what they consume would win this battle in more ways than just OP or Claravale being put out of business. Underground raw milk? You betcha.

Last night, I watched part of that committee who is overseeing the fiasco with the slaughterhouse, I forget the guys name, I think he is from Mi or Mn? Anyway, I thought he was on a roll, he was really making the owner of the slaughterhouse look really bad...until he said that it appeared that all our foods should be "irradiated" for safety. He lost my cheering section with the word irradiated.

http://www.cdphe.state.co.us/dc/Epidemiology/stec_fs.html

Shiga toxin can be from many different avenues, not just food.

http://www.aafp.org/afp/20000401/tips/11.html

http://www.journals.uchicago.edu/doi/abs/10.1086/380634

Beware the leafy greens...or BBQ

http://www.kxan.com/Global/story.asp?S=7992595


http://www.kansas.com/news/nation_world/story/336686.html

Do you think our troops can sue kbr for giving them contaminated water?

[Dave Hopton]

Sylvia, I wholeheartedly agree with you—it would be a travesty of justice if Organic Pastures were to pay a settlement to those two sets of parents in this case, which is the option that Steve Bemis brought up for some reason. However, his point about the “dice-throw of a jury” is well taken. Steve also makes the point, though, that Marler’s case must be proven by a preponderance of the evidence. And even Bill Marler acknowledges that a successful prosecution of pathogenic contamination against Organic Pastures (and the stores which sold their products) requires being able to prove “…that it [the pathogen] was in the product.” See the following link:

http://www.nctimes.com/articles/2008/03/02/news/top_stories/21_36_423_1_08.txt#

Since no evidence that establishes such a link has been disclosed on this blog, the only logical conclusion that can be drawn is that Marler’s investigations have unearthed several facts, of which we who have followed this situation for the last eighteen months or so on The Complete Patient are unaware. This evidence will undoubtedly be revealed as the pre-trial process unfolds. There must be more substance than the California Department of Health Services memo referenced in Marler’s complaint because, while it may be close enough for government work, it is physically impossible that it qualifies as a preponderance of the evidence. Talk of settlements seems premature until all the new facts are revealed—otherwise it seems the only choices that Organic Pastures has are (1) either succumb to Marler’s extortion attempt or (2) take its chances with Marler’s emotional blackmail of the jury.

In the absence of additional new facts and supporting evidence, this case should not even get to a jury, having been dismissed on summary judgment in the not too distant future by the trial judge for lack of evidence.

[Sylvia]

Thanx for your input Dave H. I don't know the meaning of "preponderance of the evidence". I'll have to look it up later. I know that some things with government can boil down to word games.

Someone, I think on this blog, said a while back, that most people who drink raw milk, research information about it and about those whom they buy it from before they begin to consume it.

The last two lines in the link you posted, says a lot to me. I would assume that Mary researched raw milk and knew of the risks, so "Why would someone want to go out and put their child at such risk?" (Keep in mind those are her words, not mine). The comments at the end of the article show that many believe it "has to be raw dairy" even without proof. The outbreak currently in TX. 3-4 counties have illnesses http://www.elgincourier.com/articles/2008/03/13/news/news04.txt and they still can't find where it came from. How long did it take to alert those in the northeast of the contaminated pasturized dairy?

With all the propaganda against raw dairy and the push for irradiation,pasturization,etc, how will we win our right to choose and obtain our foods legally? I get flashbacks of that old movie, Soilent Green, in my mind.<shudder>

[Steve Bemis]

Sylvia - my post about settlements was near the end of David's previous posting. I won't repeat it here. Preponderance simply means, more likely than not, or 51%. Dave - I didn't propose settlement, I merely suggest, that with the overall statistics saying that 95% of all cases settle, and assuming Mark's defense is provided by insurance company lawyers, that settlement before the jury stage is highly likely, unless the discovery process makes it crystal clear that there is no case. There is one early stage in litigation, in which the jury is not involved, where each party attempts to convince the judge that their case is so strong that the trial should go no further ("summary judgment"). At that point, as a matter of law, the judge can decide there are no facts about which a jury could reasonably differ, and if judge's determination is that those facts are crystal clear that there is no case, then the case is thrown out, never to be brought again (defendant wins by summary judgment) or if judge decides it is slam-dunk for the plaintiff then plaintiff wins on liability (but the jury would then have to determine damages). In many cases, judges will determine there is a reasonable difference in the facts, and the case will then simply proceed to the jury phase, and once started down that path and costs continue to rise, there may occur some stage where both sides reach a level of uncertainty with their own side of the story, so that settlement looks like a better and better option. Settlements cannot happen unless both sides decide it is better to settle than to go to a jury, so it really is not to be interpreted as a "loss" by a party to settle (would defendant think it would have been better never to have been sued?? of course!) since the other side was at some level uncertain about their case also. If Mark demands his day in front of the jury, at a point when his insurance company recommends settlement, his insurance company may say fine, but that will be your risk, not ours, and he will bear the full risk of what may come from the jury, probably without further insurance assistance.

[Steve Bemis]

BTW as clarification, my comments above reflect typical dynamics in litigation. I am not involved, and I have no specific knowledge about Mark's situation or his case.

[Sylvia]

You can be found guilty with a probability of 51%? And OJ walked?

[Steve Bemis]

OJ is a good example - he walked in the CRIMINAL case because the standard there is "guilty beyond a reasonable doubt," and obviously the jury thought there was some doubt. Not sure what percentage that is (90+%???), but it's 'way more than "more probable than not" (51%). You may remember, when the families then sued him in the CIVIL (damages) case in front of a different jury, the families convinced that jury, he was found liable, and there was a multi-million dollar judgment, which for all we know he's still paying off. In the criminal case, it's jail or your life so the standard is much higher than when the stakes are for mere money.

[Sylvia]

It would seem to me that the stakes are high when someones lively-hood is at stake.