Abell's Kentucky Law Blog

Salmonella Outbreak Leads To Criminal Investigation

The salmonella outbreak originating from a Georgia peanut processing plant has led to opening of a crimnal investigation the Baltimore Sun reports, "Criminal Investigation Opens for Peanut Plant." The investigation follows disclosures last week that the Peanut Corporation of America knowingly shipped tainted peanut products from the plant. The outbreak has killed at least eight people so far, sickend over 500 and led to one of the largest product recalls in the nation's history. For a list of products recalled click here.

Robert L. Abell
www.RobertAbellLaw.com

Peanut Butter Maker Knowingly Shipped Tainted Product

The Georgia peanut butter maker identified as the source of the salmonella outbreak that has killed eight people and sickened over 500 knowingly shipped salmonella-tainted peanut butter 12 times in 2007 and 2008, the Washington Post reports, "Peanut Processor Knowingly Sold Tainted Products." The Post reports:

Officials at the Food and Drug Administration and the Centers for Disease Control and Prevention, which have been investigating the outbreak of salmonella illness, said yesterday that Peanut Corporation of America found salmonella in internal tests a dozen times in 2007 and 2008 but sold the products anyway, sometimes after getting a negative finding from a different laboratory.

The company was not required to disclose its tainted products to federal or state officials.

In addition to killing eight people and harming more than 500, the salmonella outbreak has caused recall of more than 100 products. To review the list click here.

Robert L. Abell
www.RobertAbellLaw.com

Salmonella Outbreak Produces Lawsuit by Vermont Family

A Vermont family, whose 7 year old son was stricken by salmonella after eating peanut butter, has filed a lawsuit against the Peanut Corporation of America biz.yahoo reports, "Vermont Couple Sues Over Salmonella Outbreak." The lawsuit claims that the child was sickened after eating Keebler Cheese & Peanut Butter Crackers, which have been recalled by Kellogg's.  The salmonella outbreak, which has killed at least six people and sicked 470 spread over 43 states, was linked by the FDA to a peanut butter processing plant in Georgia operated by the Peanut Corporation of America. The FDA maintains a searchable database of products recalled due to the salmonella outbreak that can be accessed by clicking here.  

Robert L. Abell

www.RobertAbellLaw.com

Beef Recalled By Whole Foods

Beef processed at Nebraska Beef, one of the country's biggest meat processors, was recalled by the Whole Foods Market on Friday.  According to a story in the Washington Post, it is the second time in two months that beef processed by Nebraska Beef had to be recalled owing to e coli outbreak concerns, "Whole Foods Recalls Beef Processed At Plant Long at Odds With USDA."  Last month more than 5 million pounds of beef processed by Nebraska Beef was recalled following an e coli outbreak in seven states.

Over the course of the last six years the USDA and Nebraska Beef have been on a merry-go-round of citations issued by the agency and lawsuits.  The citations have been for feces on carcasses, clogged meat wash sinks, and violation of regulations aimed at preventing spread of mad-cow disease,  The company has responded with lawsuits accusing the agency with bias. 

Nebraska Beef was awarded $7.5 million in tax subsidies by the Nebraska state government.  This while battling the USDA along with neighbors of the plant who have complained about manure from the plant being strewn in the streets.  In 2002, the National Labor Relations Board ruled that Nebraska Beef had violated federal law by its actions to prevent unionization of the plant's workforce. 

Robert L. Abell
www.RobertAbellLaw.com

Food-Borne Illness Case Settled

    As a salmonella outbreak tied to tomatoes has spread into 22 states and the Food and Drug Administration continues to fail to protect the American public, the Associated Press reports the settlement of a food-borne illness case from Milwaukee involving the death of a 3 year old girl from an e-coli related syndrome.  The case involved exposure to tainted meat in 2000 at a Sizzler restaurant in Milwaukee.   Along the way, a trial court judge dismissed the case on preemption ground, accepting the meat producer's argument that it should not be held liable, accountable or responsible because it had complied with FDA regulations in handling the beef.   The lawyer for the child's family described the case "as a study in perseverance."  It is also a case study of how inadequate FDA regulation is in protecting the public and how essential is state tort law in holding corporations accountable to that public.

Robert L. Abell
www.RobertAbellLaw.com

Senator Charges "Criminal Negligence" In FDA's Failure to Protect Food Supply

    As a salmonella outbreak linked to some types of raw tomatoes sickens hundreds of Americans across 17 states, a Republican Senator, Arlen Specter of Pennsylvania, charges the Bush Administration with "criminal negligence" in not moving faster to provide the Food and Drug Administration (FDA) with monies for food protection efforts, the New York Times reports. 
    Last November the FDA released a "food protection plan" but the Bush Administration did not provide any funds for it and did not ask for any money for until Monday, June 9.  This failure Senator Specter informed health and human services secretary Michael O. Leavitt amounted to "criminal negligence" that was "subjecting people to bodily injury and death."  Since 1990 there have been 13 multistate outbreaks of salmonella poisoning related to tomatoes, according to the Centers for Disease Control and Prevention.

Robert L. Abell
www.RobertAbellLaw.com

Bush Administration Rules Protect Corporate Wrongdoing

    As part of its ongoing and to date very successful effort to insulate corporate wrongdoing from accountability, responsibility and liability, the Bush Administration has adopted since 2005 a total of 51 regulatory rules that preclude lawsuits arising from all sorts of everyday items including drugs, cars, railroads, medical devices and food.

    The legal doctrine is known as "federal preemption."  Here's how it works: say for instance the Food and Drug Administration (FDA) adopts a regulation outlining drug labeling and packaging.  However, the labeling and packaging causes confusion and, as a result, children are badly injured.  That's what happened to actor Dennis Quaid's newborn twins who were given massive doses of blood thinner at a hospital.  The Quaids filed a lawsuit in Illinois state court claiming that the manufacturer -- Baxter Healthcare Corp. -- was negligent n packaging different doses of the product in similar vials with blue backgrounds.  Under the doctrine of "federal preemption," however, the Quaids' suit could be barred because the manufacturer's compliance with a deficient federal regulation preempts any liability it might have for causing harm. 

    Earlier this year FDA Commissioner Dr. Andrew C. von Eschenbach publicly acknowledged that the agency "may fail in its mission to protect and promote the health of every American" and that "peril exists."  That admission followed on the heels of a report late in 2007 from the FDA Science Board that the agency does not have the capacity to ensure the safety of the nation's food, cannot adequately regulate the development of medical products based on "new science" and had many other materials failings. 

    Historically, state tort and liability lawsuits have been viewed as complementary to federal agency regulations.  But the Bush Administration has hit upon a successful formula to ensure not consumer safety but corporate immunity from responsibility and accountability: render the regulatory agencies unable to function and preempt any attempt to protect consumers.  The American Association for Justice and other groups are opposing mightily these efforts and you can learn more here.

Robert L. Abell
www.RobertAbellLaw.com