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Listeria Cases Are Heating Up - The National Law Journal - April 26, 1999

By: Bob Van Voris
The National Law Journal
April 26, 1999

Regardless of the advertising jingle, it sure looks like somebody doesn't like Sara Lee. According to the figures from the Centers for Disease Control, approximately 100 people became ill, and 21 died, after eating meat form a Sara Lee subsidiary contaminated with the listeria bacterium.

At least four lawsuits have been filed on behalf of people who were sickened and families of others who died, and more are expected. And two state court cases, filed in Chicago and Detroit, could cover the rest if the class action status is granted.

Genetic technology makes it easier to track and prevent cases of food poisoning, but lawyers and scientists say that it can sometimes be difficult to recover damages. Among the reasons: "Genetic fingerprinting" of food-borne bacteria is designed to help stop outbreaks of illness rather than to assign blame once they have already occurred. And it often remains impossible to locate the source of illnesses not linked to big outbreaks.

Lawyers are now trying to figure out which cases can be trace to Sara Lee Corp.

Just a week after the Chicago-based company announces a voluntary recall of hot dogs and deli meats from the company's Bil Mar plant in Zeeland, Mich., that may have been contaminated with listeria monocytogenes, Chicago plaintiffs' lawyer Kenneth B. Moll filed a class action in state court. A hearing on class certification is set for May.

And in January, a month later, Mr. Moll filed a wrongful death suit on behalf of a man who claimed that his wife died from eating Ball Park brand hot dogs.

Prompted in part by the publicity generated by the suits- including Mr. Moll's 12-hour tour of the Bil Mar plant with several food safety experts-callers to Mr. Moll's office have claimed as many as 40 deaths and 400 injuries, although the cases have not yet been screened for viability. Neither Sara Lee spokesman Jeffrey Smith nor its lawyer, Jeffrey Coleman, of Chicago's Jenner & Block, would comment on the litigation.

Mr. Moll was not in the forefront of the litigation arising out of earlier outbreaks of food-borne illness, although he has litigated other mass torts including breast implants, tobacco and the fen-phen diet drugs. In fact, his first client in the Sara Lee outbreak was a man who had a fen-phen case with Mr. Moll.

In addition, Southfield, Michigan, lawyer Harvey Chayet, of Thurswell, Chayet, & Weiner, has filed a class action in Michigan state court, which Sara Lee removed to federal court. And lawyers in Arizona have filed a handful of individual cases.

The outbreak is the subject of a U.S. Department of Agriculture investigation, and a federal grand jury is investigating possible criminal wrongdoing.

William D. Marler, of Seattle's MarlerClark, who specializes in food-borne illnesses, says that companies need to consider carefully how they will respond to outbreak cases. He favorably contrasts the approach of the Jack in the Box restaurant chain following an E. coli outbreak in 1993 with that of most other defendants he has litigated against: " I think Jack in the Box came to the realization to get these things behind them as promptly and as fairly as possible and to get them off the front page as quickly as possible."

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