MarlerClark Tests Its Closing Argument in OPDC Case: A Sign of Confidence, or Desperation?
Wednesday, February 18, 2009 at 10:49PM 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.
Reader Comments (30)
If there is a "frenetic effort" to keep leafy greens safe, kudos to the spinach industry for admitting a problem and seeking solutions to their food safety challenges. It appears the spinach industry was sued, like OP. Lawsuits seem like the last resort, but if regulation and free-market doesn't do the trick, IMHO the legal system has a place in correcting problems , especially when kids are involved. Cruising through the MarlerClark site, I don't see any "small farm" bias in their lawsuits - most of their suits appear to be against big corporations (the biggest offenders). And, looks like spinach took a big hit.
Marler Clark Settles Last of Dole Spinach E. coli Cases
http://www.marlerblog.com/2008/10/articles/legal-cases/marler-clark-settles-last-of-dole-spinach-e-coli-cases/
Please forgive my sarcasm. TPTB tell us good food is bad, bad food is good, and our IOUs showered upon financial criminals and failures will be our financial salvation. Can we believe anything they say?
Locally Sold Raw Milk May Be Tainted
http://www.msnbc.msn.com/id/29244189/
Is he insinuating that raw dairy farmers aren't making a "frenetic effort" to keep raw dairy from being at risk? This mind-set inplies that working with raw dairy farmers is not an option.
“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.”
Wasn't this debated here previously? I don't recall the "link" to causation, only speculation. Perhaps they plan to manufacture a bullet.
Don,
Symptoms of listeriosis may not show for up to (depending on which report you read) up to 90 days after consumption. By then it may be difficult to trace where the bacteria came from. It is commonly associated with dairy products, hot dogs, deli meats, raw meats, some raw vegetables, and raw or smoked fish.
http://www.asas.org/abstracts/2003abs/082.pdf
http://foodpoisoning.pritzkerlaw.com/archives/cat-whittier-farms-lawsuit.html
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5740a1.htm
http://content.nejm.org/cgi/content/abstract/312/7/404
"Conclusions These results support the hypothesis that human listeriosis can be a foodborne disease and raise questions about the ability of pasteurization to eradicate a large inoculum of L. monocytogenes from contaminated raw milk. "
Also, my mother had a kidney transplant due to complete renal failure (she had a strep infection as a child and ended up with kidney disease and eventually her kidneys both failed). She receive a kidney from a living relative who was a great match. Today is the anniversary of her transplant and it is 34 years today and she is doing great!! She was a transplant patient when it was a very new procedure in this area and medical innovation has come a long way and so have the type of anti-rejection drugs, etc. By the time Lauren may need a kidney things will probalby be even better than now.
I just find the entire premise of his presentation being a pubic trial of the situation and his stretching of facts of what did or may happen to be very diheartening.
Mark
Consumer Advisory: Pennsylvania Health and Agriculture Departments Warn Consumers About Raw Milk Sold in Lawrence County
Recently, individuals who consumed raw milk purchased from Dean Farms were found to have gastrointestinal illness due to Campylobacter, a bacterial infection. Since January 23, a total of six confirmed cases of Campylobacter infection have been reported among raw milk drinkers in four unrelated households in western Pennsylvania. The investigation is ongoing.
http://news.prnewswire.com/DisplayReleaseContent.aspx?ACCT=104&STORY=/www/story/02-20-2009/0004976048&EDATE=
"Harness bacteriocins to reduce Campylobacter counts."
" Proteins that are sourced from microorganisms can reduce levels of Campylobacter
and other pathogenic bacteria in poultry intestines, a team of USDA-ARS
and Russian scientists has discovered. The proteins, bacteriocins, are bacterially produced peptide antibiotics with the ability to kill a limited range of bacteria, usually--but not always--those that are closely related to the producer bacterium."
" Such peptides, produced by Lactic acid bacteria , are effective against foodborne pathogens and offer a good alternative to chemical preservatives. The simplest application of lactic acid bacteria involves adding lactate salts, such as sodium lactate and potassium lactate, to foods. These salts can inhibit the growth of psychotropic pathogens and can protect refrigerated poultry and seafood against C. botulinum, L. monocytogens and A. hydrophila."
" ARS microbiologists at the agency's Poultry Microbiological Safety Research Unit used the bacteriocins to reduce Campylobacter numbers in bird intestines by 99.999% in small research trials. Large research trials will be needed to determine if the approach is commercially feasible."
"According to the researchers, this is the first treatment used in the last 25 years to achieve a significant reduction of Campylobacter in trials involving chickens. The bacteriocins reduced the numbers of Campylobacter by a millionfold when fed to chickens."
"Preliminary data indicate bacteriocins may be effective in reducing other foodborne bacteria such as Salmonella and E. coli. Foodborne bacterial infections are responsible for billions of dollars of economic losses worldwide. The U.S. CDC notes that Campylobacter is one of the most common bacterial causes of diarrheal illness in humans in the United States. The CDC has identified poultry as the primary vehicle for its transmission to humans. Controlling Campylobacter in poultry would reduce public exposure to the bacteria."
Lactic acid bacteria, something that raw milk is full of,is the latest way to control campylobacter.So to have a campylobacter infection we would have to consume something with our milk to inhibit or kill all of those lactic acid producing bacteria.
Every bit of research I have ever reviewed says exactly the same thing.
Amen and OOHRAH to you!!
Bacteriocins and colicins kill a broad range of pathogens including ecoli 0157H7. Lactobaccillus does the same thing with listeria and other pathogens. Gut biodiversity and bioactivity is critical to sustainable medicine and prevention.
Western doctors, drug companies and the FDA are either blind, stupid or clueless when it comes to this internal ecosytem balance and how to protect and enhance immune strength. As a direct result, 245 people died today of MRSA, and VRSA.
Not one thing in the news....thats pretty quiet for an American tragedy this massive.
This just plain pisses me off!!! When are they going to get it....antibiotics are abused and deadly. These greedy idiots are quickly creating weak humans in a world run by superbugs that could care less about us. Superbugs see us as food to be eaten alive.
DRINK RAW MILK and be protected from pathogen illness and immune depression!
Please excuse my preaching....
The light is so damn bright from what I see from the raw roots going forward...those in power see only darkness and are leading the sheepeople off the edge and taking their money and their lives as they fall off.
Mark
If you say it enough times it doesn’t make it true. Raw milk can be contaminated with pathogens and it DOES make people ill.
People have a right to choose raw milk, but don’t exaggerate the facts and paint a full proof pathogen free picture regarding the risks when choosing raw milk to drink. It’s irresponsible. Children suffer.
cp
http://www.marlerblog.com/2009/02/articles/lawyer-oped/e-coli-o157h7-impacts-your-friends-neighbors-the-young-and-old/
cp
Here’s another detailed article on Hemolytic Uremic Syndrome.
• About 10% of individuals with E.coli 0157:H7 infections (mostly young children) goes on to develop HUS
• A typical person is born with about one million filtering units, called nephrons, in each kidney. During HUS, the lack of blood flow to the nephrons can cause them to die or be damaged. Dead nephrons do not regenerate.
• In general, the longer a patient suffers kidney failure, the greater the loss of filtering units as a result. At some point, the damage to the kidneys’ filtering units can be so severe that the patient will, over a period of years, lose kidney function and suffer end-state renal disease (ESRD), which requires chronic dialysis or transplantation.
• Studies done to date on HUS outcomes have largely confirmed a positive correlation between more severe kidney involvement acutely, particularly the need for extended dialysis, and increased incidence of future renal complications. However, it has been shown in multiple studies that even moderate kidney compromise in the acute phase of HUS can result in long-term complication due to damage to the filtering units in the kidneys.
• Among survivors of HUS, estimates are that about five percent will eventually develop end stage kidney disease, with the resultant need for dialysis or transplantation, and another five to 10 percent experience neurological or pancreatic problems which significantly impair quality of life
What this article didn’t mention is that 50% of children who develop HUS do not require dialysis. In other words, there can be mild cases of HUS where complete renal failure does not occur. This particular article focuses on the 50% of children who did require dialysis and the future medical consequences of having suffered acute renal failure.
According to PowerPoint slide, this child received dialysis for 20 days and her kidneys never fully recovered their functioning do to the loss of too many nephrons. As a result, she has protein in her urine and high blood pressure. Now that her kidneys are damaged, how long will they last? What does this translate to medically 10, 20 or 30 years from now?
cp
We are all saddened when our children have to suffer.You seem to imply that raw milk can be the cause of this suffering.Even the USDA and the CDC realize that lactic acid producing bacteria could have prevented these illnesses.The way to prevent further suffering is to use these lactic acid bacteria to eliminate those "pathogens" from our food.Raw milk would be a "prebiotic" because it feeds the lactic acid bacteria in our gut.Kefir and many lacto fermented foods like sauerkraut are probiotics because they add lactic acid bacteria to our gut.
As long as disinformation about the cause of these illnesses continues to be spread children will continue to suffer.Why don't you join the USDA and the CDC in pointing out the solution? Everything we eat that inhibits or kills lactic acid bacteria is the cause of this suffering.Everything we eat that feeds and adds to the number of lactic acid bacteria in our gut is the solution.
The same thing is happening to Rick Santelli who spoke the truth about the confiscation of our nations wealth via the bailouts on CNBC Thursday monrning he was also mocked and ridiculed by very high sources, but the TRUTH does not change.
The establishments absurd promotion of fake food and fake fiat money is sad indeed!!!
"On a diet of hay, there is no residual starch to be fermented in the colon. Thus, the acid level remains low and the E. coli remain acid-sensitive. Acid-sensitive E. coli are easily destroyed in the human stomach. "
It would appear if tptb truely wanted to eradicate or drastically reduce E.coli 0157:H7 they would push for changing the factory farming practices and diets of the animals. They are not doing this. By telling people to pasteurize/irradate/chemically induce shows they only wish to cover the problem not correct it.
http://www.ericsecho.org/whatisec.htm
Just more of the same.
"Western doctors, drug companies and the FDA are either blind, stupid or clueless when it comes to this internal ecosytem balance and how to protect and enhance immune strength. "
Mark,
They know boosting and promoting healthy "natural" nutrition would decrease if not eleminate most illnesses thus they'd lose $$$. Can't have that now, can we.
Since E.coli 0157:H7 is more often found in that pound of ground beef of more than 100 cows, I would expect to hear from those on the bandwagon for change. The group is silent. I haven't seen it in the newspapers nor on TV.
When our gut flora is impaired, we become more susceptable to invading organisims. The SAD, and pharmacuticals are the major contributors to impairing the natural status of the gut and workings of our bodies. What is being done to promote change? What is being done to educate the population of the causes? Eat more processed foods? Take more pills? Have some more toxic vaccinations?
Maybe the state of the economy will force people to eat healthier. That bag of mixed beans will make a huge pot of soup that can go far and the cost is low. Maybe more will grow some veggies in thier backyards. Unfortunately, I fear most don't know how to balance nutrients. I am finding I am just learning.
Those obsessed with control have not been humbled enough by the organism’s keen and capable ability to survive and therefore any understanding they may have of the importance of symbiosis is mitigated by fear, superstition and insecurity. They continue to narrow-mindedly adhere to their crush, kill, and destroy mentality, as a result what little knowledge they have acquired nurtures their ego and therefore their war mongering philosophy.
Ken Conrad
How would this help? Outbreaks are linked to both factory farms and grass fed, organic operations (the spinach outbreak traced to an organic vegetable farm next to cattle on pasture raised for a grass fed beef niche market). Since the end of Alta Dena, most of the raw milk outbreaks appear to be linked to animals on non-grain diets - although this information is not well documented by the states/CDC, but comes from the dairies on blogs, websites, etc..
"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)."
I'm curious what specifically this child or others should have "consumed" before starting on raw milk and colostrum. Looking at WAP and other websites, there isn't a description or health education information on "prepping" the immune system - should her dad have fed fermented sauerkraut and beets before starting raw dairy? Take protbiotic pills first, for how long? Each time someone gets ill from raw milk, the "blame" seems to point toward the consumer because of their "immunity," yet there is no health education on the raw milk sites beyond advertisements of how the produce helps the immune system? It kinda makes my head spin (the circular argument).
"Lactic acid bacteria, something that raw milk is full of,is the latest way to control campylobacter.So to have a campylobacter infection we would have to consume something with our milk to inhibit or kill all of those lactic acid producing bacteria. "
miguel - I enjoy your comments very much, especially your knowledge of lab testing limitations, interpretation, etc. However, I'm having trouble understanding this viewpoint. It sends me in circles again. Shouldn't the LAB have killed the "pathogens" in the raw milk before cosumption? Why were they still alive requiring the consumer to again take some unspecified immune protection measure before drinking the product?
IMHO, the best thing to do when these outbreaks or recall events happen is look for "what went wrong" from the farm to the consumer: how did poop get into the milk and how can it be prevented from contaminating the product next time? Or, was there temperature abuse somewhere during storage or transportation - how can that be fixed?
The test for ecoli 0157:H7 tells us exactly how to get ecoli 0157:H7 to grow as fast as possible. Everyone who is trying to sell these rapid tests is trying to come up with the way to make the population of ecoli 0157:H7 explode.That is their goal in designing the test.
Why don't they grow it in raw milk???
Why is it necessary to inocculate the test medium with an antibiotic that ecoli 0157:H7 is resistant to?
Why do they use a broth consisting of soy fat and protien and glucose??( sort of like most salad dressings(soy oil and high fructose corn syrup with flavorings and preservatives))??
I will grant you the possibility that a "pathogen" may exist in the raw milk.In order for that "pathogen" to survive in that raw milk,the lactic acid bacteria need to be disarmed or eliminated.Pasteurization would do this.Any thing added to the milk to retard souring will do this.
Assuming you drink some milk with a "pathogen" in it,That pathogen needs conditions like those in an ecoli 0157:H7 test in order to survive and reproduce. If the lactic acid bacteria remain alive in the milk,then the digestive process will favor the lactic acid bacteria over the "pathogen".All of the way through our digestive tracts the possibility exists that conditions might change to favor either the pathogen or the lactic acid bacteria.An example would be the administration of an antibiotic or consumption of a toxic phood additive which would favor the pathogen.
Because you are focusing all of your attention on the "pathogen",you are missing the importance of our immune system's natural ablity to eliminate the pathogen.All it really has to do is keep the ecoli 0157:H7 from realizing a quorum so that it never has the numbers to release it's toxins and cause illness.
Fresh milk that has been kept cold,does not contain very much lactic acid.The lactic acid is what kills the "pathogen".If the milk did contain very much lactic acid it would taste sour and not keep it's fresh taste for long.The growth of the lactic acid bacteria really speeds up once the milk is consumed and it warms up to your body temperature.It's numbers increase exponentially doubling every 20 minutes.Suppose you ate the milk on some corn flakes with sugar added.There are lots of things about the sugar and corn flakes that will inhibit the reproduction of the lactic acid bacteria and encourage the "pathogen".This is true of many of the phoods we eat.The phood additives and the unnatural processes( the extrusion of cereals under high temp and pressure) suppress the production of lactic acid which is our natural defense against those pathogens.
We cannot possibly eliminate the chance that a pathogen is in our food ,but we can avoid phood that contains substances that interfer with our own natural defenses against pathogens.
Prepping the immune system.
Simply avoid replicating the conditions that those ecoli 0157:H7 rapid tests tell us will favor the explosion of the ecoli population.This will require that you eat only food that has been grown from healthy soil,that contains no residues of chemicals that upset our natural immune system and that haven't been processed in bizzare ways with preservatives added.
Let me see if I’m following your logic—before people drink raw milk (in the event it may contain a pathogen) they must make sure they are eating a perfect diet free from anything considered “bad food”. Because if they’re not, the pathogen may multiply in the digestive track instead of being killed off by the good bacteria.
How can one determine if their balance of good and bad bacteria is the correct ratio needed to fight off pathogens before consuming raw milk?
Also, would you be in favor of taking probiotic supplements to boost the immune system before drinking raw milk?
cp
LOL on the ethics.