Probably the most curious presentation at yesterday’s raw milk symposium was by Bruce Clark, the “Clark” of the food poisoning law firm MarlerClark.

His session at the International Association of Food Protection symposium (discussed in my previous post) was entitled, “A legal perspective on raw milk consumption”, but it might have been more accurately entitled, “A dress rehearsal of MarlerClark’s closing arguments in the case of Lauren Herzog vs Organic Pastures Dairy Company.”

Pacing in lawyer-like fashion before a huge blow-up of a photo of 12-year-old Lauren (shown above), Clark made his case about the little girl who became extremely ill from E.coli 0157:H7 (a second child, Chris Martin, became similarly ill from hemolytic uremic syndrome, but no E.coli 0157:H7 was found in him), in a situation blamed by the California Department of Health Services on Organic Pastures raw milk. The illnesses resulted in suits by parents of the children.

I almost hesitate to raise this matter yet again, since it’s generated so much heated discussion on this blog over the last two years. But the court cases are now in the deposition phase—a period in which lawyers cross examine potential witnesses, and a period during which both sides in legal cases tend to adopt a very low profile.

Yet Marler-Clark decided to take the opposite tack. Clark’s presentation was strangely provocative (entitled “Here’s What ‘Real Milk’ Does”), reminiscent of the video of Chris Martin on life support posted on YouTube last August. What is going on here? Well, maybe after I recount Clark’s presentation, the answer will become clearer.

Clark provided the bare facts of the case—that Lauren Herzog consumed raw milk while with her father one weekend in late August 2006 (her parents were separated). She spent 25 days in the hospital, including twenty days on dialysis, incurring $300,000 of medical bills.

Then came the melodrama:

“This 12-year-old experienced 20 days of dialysis. She was critically ill and now has proteinuria and high blood pressure. These kidneys have been damaged. The filtering units in her kidneys are gone.

“She is forecasted for end-stage renal failure, probably as a young adult…She will then require chronic dialysis until she can receive a cadaver transplant. It will last 14 years. She is at a higher risk for cancer and heart disease (because of the immunosuppressant drugs required). In the best scenario, her life expectancy has been shortened by 15 to 20 years. Her future medical costs will be several million dollars.”

The presentation quieted the 40 or so attendees, and I’m sure, had he asked for a vote from the food protection crowd, it would have been guilty. Michael Schmidt, the Canadian raw dairy farmer, asked Clark what made the situation of Lauren Herzog different from children who became similarly ill from spinach at the same time during 2006. Clark really didn’t answer, except to say, “In the spinach industry and the meant industry…there is a frenetic effort to keep leafy greens from being at risk.”

He was also asked if the children’s condition might have been worsened by giving them antibiotics early in their illnesses. He pointed to a study that he says shows “a small increase in the risk of getting HUS (hemolytic uremic syndrom)” from antibiotics. “We do find doctors who don’t find this bug (E.coli 0157:H7) early.”

I asked Mark McAfee of Organic Pastures what he thought of Clark’s exercise. “He’s trying his case in the public arena.”

McAfee told me that the parents of Lauren Herzog and Chris Martin are seeking $15 million per child, or a total of $30 million. Clark in his presentation said only, “OP’s insurance is a maximum of $1 million” per child. He indicated Marler-Clark would prefer a settlement in that $1 million per child range because, when a member of the audience asked why he wouldn’t go after the entire dairy, he said, “A company in bankruptcy” isn’t going to yield a lot of cash after creditors get finished.

McAfee indicated that the insurance company representing OPDC may not be inclined to settle. “The whole thing hinges on causation, and them not being able to obtain the link, to demonstrate that the milk was contaminated with E.coli 0157:H7.” Epidemiological evidence isn’t the same as causation, he said. “That is the bullet they need.”

To me, Clark’s jury-like summation had a tinge of desperation associated with it. If you do a tear-jerker presentation in a public forum while depositions are being taken, maybe you can intimidate the other side into a settlement. The court case is tentatively scheduled for July.