For about two years, a debate has flared on and off on this blog over whether raw milk produced by Organic Pastures Dairy Co. made six California children ill in September 2006. Mary McGonigle-Martin has pushed most insistently that OPDC’s milk was the culprit.

I challenged Mary in blog postings to stop complaining and, if she truly believed in her argument, use the institutions our society provides for pursuing injustice—namely, the court system.

Finally, in early 2008, Mary (along with the family of Lauren Herzog), did file suit, and I thought, well, finally, this thing is going to get resolved—either via a court trial or a negotiated settlement. What I didn’t anticipate is that the battle leading up to some kind of resolution would be so bruising.

We’ve seen a posting last summer by Mary McGonigle-Martin on YouTube of a video of Chris Martin on life support. (Mary removed the video a few days later, apparently after complaints by Mark McAfee of Organic Pastures Dairy Co. that the video could prejudice the case.). There’s been a presentation about the case by a lawyer for the children at a food protection seminar.

Now, we have the most intriguing submission yet: a collection of “expert” opinions posted by the families’ law firm, MarlerClark.

The reason this submission is so intriguing is because it seeks to address the biggest hole in the case, dating from the initial reporting of illnesses in September 2006, when investigators turned Organic Pastures upside down looking for pathogens: the absence of a direct link between the strain of E.coli 0157:H7 found in children who became ill, and the dairy itself—a so-called “smoking gun.” In a lengthy document, Bill Marler states that he has plugged that hole of “identifying the causal connection” between Organic Pastures milk and the sick kids.

Has he?

The emotions that always seem to surround raw milk came out when I inquired Friday with Marler as to the document’s legal purpose. He addressed my previously expressed skepticism about the “smoking gun” in his blog posting, answering “one of my fans” (me), by saying his document “was prepared by me (Marler) and given to counsel for Organic Pastures and the grocery stores so they would better understand our position in the litigation. We have nothing to hide. I also told him (me) with respect to his version of the facts – ‘Obama could be a Muslim and the earth could be 5,000 years old. All possible, but very, very unlikely.’”

Leaving aside the trash talk between Marler and me, the crux of the document is the opinions of six “of the most respected leaders in the field of epidemiology.” It makes truly fascinating reading, because it so well presents the assessment process that epidemiologists go through in analyzing a case of food-borned illness. In reading it, I tried to reserve judgment, and instead attempted to understand the thinking. Reserving judgment wasn’t easy.

The first, and presumably leading, expert quoted, Dr. William Keene, an epidemiologist with the Oregon Public Health Division, goes through a mathematical assessment of the probability of so many of the children who became ill being linked to Organic Pastures, and states, “To put it in plain English, it is implausible that this association would occur by chance alone.”

But he betrays his prejudice against raw milk when he explains the supposed contamination of Organic Pastures’ raw milk: “It’s pretty much the same story over and over, there is no mystery in this process. Raw milk is virtually always contaminated with bovine feces, and the evidence indicates that Organic Pastures milk was no exception.” This, of course, is a falsehood, based on evidence that unpasteurized conventional milk is often laced with pathogen-containing feces—he says as much when he notes that “there are traces of cow manure in pooled milk after collection…”

Given his apples-and-oranges comparison of Organic Pastures raw milk with conventional unpasteurized milk, it’s difficult to accept Keene’s nearly condescending explanation of why the pathogens in the sick children were never found at the Organic Pastures dairy. He tells us that “0157 shedding by bovines can be very intermittent, such that positive samples on one day can be followed by negative samples for days or weeks thereafter. In summary, the lack of matching 0157 culture results at the dairy is not at all inconsistent with the conclusion that Organic Pastures was the source…Public health agencies do not have the resources to collect and test potential thousands of samples over a period of months to fully document the obvious.” Well, at least it’s obvious to Keene.

Another expert, Michael Osterholm, a professor at the University of Minnesota’s School of Public Health, seems to argue that a stray mystery germ may be the culprit in the case. He explains that “the lack of isolation of the outbreak strain of E.coli 0157:H7 from the cattle on the farm is not unexpected. I know from previous outbreaks that a specific strain of E.coli 0157:H7 may be transient in a bovine population. Unless investigators were sampling at the farm on the day or days of production associated with the outbreak case consumption it is possible to not detect that strain in the raw milk. In addition, it’s possible the outbreak strain was in the milk on the day that investigators did sample but the presence of the organism was not uniform throughout the bulk tank or it was in levels not detectable by our current laboratory techniques due to the competition of other bacterial contamination (i.e. such as other fecal coliforms). The human gut is the ultimate bioassay and will tragically ‘detect even one or two E.coli bacterium’ that then leads to infection.”

His argument seems both a candid admission about the limits of existing tracking techniques, and a questionable case for relying on circumstantial evidence. In other words, the fact that we lack the capabilities to find the culprit pathogens shouldn’t stand in the way of handing out blame.

Mark McAfee was understandably upset by the ongoing postings by the MarlerClark firm, telling me that Marler is posting the experts’ opinions to avoid a trial of the case and force a settlement. “He’s contaminating the jury pool with this…He doesn’t want to take it to court. They like to settle cases. They like to fan the flames.”

He argued further than epidemiological evidence isn’t admissible in court. But he acknowledged that insurance companies often bow to the settlement pressures because “they don’t want to see children in court.”

It should be noted, though, that McAfee and the Weston A. Price Foundation aren’t totally innocent of making questionable claims in the case. As one example, in a January 2008 press release, the Weston A. Price Foundation stated that “thorough investigation of the milk, the cows and even the manure at Organic Pastures Dairy failed to find virulent E. coli or any other pathogen”.during the September 2006 investigation. Yet the Department of Health Services February 2007 report stated that three cows were found to harbor the pathogen. It was a different strain than what sickened five of the six children, but it was E.coli 0157:H7.

When I originally advised Mary McGonigle-Martin to go to court, I hoped the case would eventually get in front of a jury. It is a fascinating case. There definitely is a strong circumstantial case that the six children who became ill were made sick from drinking raw milk. But is circumstantial evidence enough, when there are questions even about the circumstances, such as whether administering antibiotics to two of the children possibly worsened their illnesses? It’s also a fact that, despite the arguments of Marler’s experts, there is no smoking gun, and it seems questionable to actually use that absence as further evidence of guilt. (“We may not have seen you commit the crime, but we know your type’s modus operandi.”)

The legal case may be ever more clouded, and the tactics questionable, but the Marler document definitely helps us understand how the so-called “experts” think, and how much in this arena remains frustratingly elusive, and thus the venue of high-priced opinion and theory.