Sara Lee Pleads Guilty to Misdemeanors in Connection with Outbreak that Killed at Least 15 - Volume 15, Number 28 - July 9, 2001

Corporate Crime Reporter
Volume 15, Number 28
July 9, 2001

Interview with Kenneth B. Moll, Kenneth B. Moll & Associates, Chicago, Illinois

Last week, we published an interview with Phillip Green, the United States Attorney in Western Michigan.

Green had just negotiated a plea agreement with Sara Lee Corp. In that agreement, Sara Lee pled guilty to two misdemeanors in connection with a listeriosis outbreak that led to the deaths of at least 15 consumers who ate Sara Lee Bil Mar's Ball Park Frank hot dogs and other meat products.

Green, in an unusual move, agreed to issue a joint press release with Sara Lee announcing the plea agreement. In the press release, no mention was made of Ball Park Frank hot dogs.

We asked Green why Sara Lee wasn't charged with felony violations.

"There was simply no evidence that Sara Lee Bil Mar knew that the food product that they were producing and shipping out was adulterated with Listeria monocytogenes," Green said.

We mentioned to Green evidence published in the Detroit Free Press and elsewhere that Sara Lee was doing testing of the environment in the plant for cold-loving bacteria. When their tests started coming up positive, they stopped testing.

In response, Green said that "the testing that you are referring to is known as Low Temperature Pathogens testing -- that is a very general test that does not necessarily indicate the presence of Listeria monocytogenes."

Kenneth B. Moll disagrees. Moll is the Chicago trial attorney who represented the victims of the Sara Lee listeriosis outbreak.

He says there is evidence that Sara Lee knew about the contamination and that the evidence does necessarily indicate the presence of Listeria monocytogenes.

He argues that Green should have brought felony charges against Sara Lee.

We interviewed Moll on July 3, 2001.

CCR: What is your work?

MOLL: We handle class action lawsuits that benefit society.

CCR: What kind of class actions have you filed?

MOLL: We are involved with the major ones including, Firestone, Fen_Phen, tobacco litigation, breast implants, Ford.

CCR: How many attorneys are with the firm?

MOLL: Twelve are associated with our firm.

CCR: How long have had your firm?

MOLL: Since 1993.

CCR: What law school did you graduate from?

MOLL: Chicago Kent College of Law.

CCR: You started your own firm out of law school?

MOLL: No, previously I was a member with the firm known of McDowell, Moll, Fitzgibbons and Drew.

CCR: How did the Sara Lee case come into your door?

MOLL: One of our Fen-Phen clients contacted our offices and said that he was sick and in the hospital. He found out, through his own investigation, that Sara Lee had recalled hot dogs that he had in his refrigerator.

CCR: What kind of hot dogs were they?

MOLL: Ball Park Franks hot dogs. We investigated and found out, yes, there was a recall, but there was no publicity.

CCR: Was there any publicity?

MOLL: We had to dig for it ourselves and find out there was a recall. So, we filed, on his behalf, a nationwide class action lawsuit and issued our own press release, to advise consumers that the hot dogs that were currently in their refrigerator or freezer should not be eaten. It wasn't until over a month later, after our press release, that Sara Lee finally did publish a full page ad in 60 newspapers around the country advising consumers.

CCR: When did your client call, when did you file, and when did the ad run?

MOLL: Sara Lee announced the recall on December 22, 1998. We filed our class action lawsuit on December 30, 1998. They didn't take out the full page ads until January 20, 1999, almost one month after the recall.

CCR: When they announced the recall, did they put out a press release?

MOLL: I don't recall. I think we found something from the U.S. Department of Agriculture. I don't remember any press release from Sara Lee.

CCR: There was no article in any newspaper?

MOLL: No, the first time there was any news about it was following our press release. In fact, John Bigness of the Chicago Tribune said at the time that the largest food recall in U.S. history has gotten less press than prior smaller recalls.

CCR: What did they recall?

MOLL: Thirty-five million pounds of meat products, including Ball Park Frank hot dogs, deli meats, turkey, ham, all kinds of whole package meats and deli meats.

CCR: What did you learn from your investigation?

MOLL: We contacted Paul Mead from the Centers for Disease Control in Atlanta. He started his investigation in November, 1998. He got calls from the state health departments in Ohio and New York. They had isolated strains of bacteria. He looked at them and found that they were the same strain. That is considered an outbreak. There was a common source for an outbreak in two different states. He sent out questionnaires and discovered there was an open package of hot dogs in the home of one of the people that died. They tested it and isolated the same bacterial strain that they eventually labeled E_1. It is the DNA fingerprint of the type of bacteria.

He went to the Bil Mar plant in Zeeland, Michigan and tested unopened packages of hot dogs and was able to isolate the same DNA fingerprint bacteria.

CCR: That's what triggered the recall?

MOLL: Yes. That's what forced Sara Lee to issue the recall. Sara Lee waited for some time before issuing the recall.

CCR: How long did they wait?

MOLL: Five months after their own testing showed sufficient evidence of unsanitary conditions.

CCR: Was anybody killed during that period?

MOLL: Yes. People were killed during that period. Some people died even after the recall.

CCR: How many have died because of this?

MOLL: There have been at least 21 reported deaths. These are deaths that were reported to the CDC. These are 21 deaths absolutely linked to that plant. There is no question that these people died from products made by Sara Lee. That is what the CDC indicated.

CCR: Why does the U.S. Attorney in Michigan and Sara Lee put the death figure at 15?

MOLL: There were 21 confirmed deaths, including 6 miscarriages.

CCR: How many of the 21 deaths came from the hot dogs?

MOLL: I believe all of them were. There were three strains of the listeria monocytogenes isolated from the Sara Lee plant. One of them is called E_1, the second is called E_0, and one is called 1/2a. The 1/2a was contained in deli meats. There were no known deaths or injuries from that strain. There were deaths from the E strains.

CCR: How do they trace the bacteria back to the dead person?

MOLL: They take blood or spinal fluid from the person who died. And they test the bacteria and do a DNA fingerprint of that bacteria.

CCR: This bacteria could not have come from some other facility?

MOLL: No. When you have this kind of evidence, there is no question it came from Sara Lee.

CCR: The CDC puts out its report when?

MOLL: The CDC knew about this and talked to Sara Lee about this in early December, 1998, before the recall. They told Sara Lee that they had isolated this fingerprint from opened packages of hot dogs. Dr. Mead first advised Sara Lee in December, 1998 that there was LM in those two cases linked to deaths in Ohio and New York.

CCR: How many people were injured in this episode?

MOLL: Over 21 deaths and over 100 serious injuries were reported to the CDC. There were over 4,000 claims submitted under our class action. CCR: Was all this damage done before the recall?

MOLL: No. However, in August, September, October and November there was a spike in deaths.

CCR: Were there deaths post-recall?

MOLL: Yes, but most of the 21 reported deaths were before the recall.

CCR: Did you investigate to find out how this happened?

MOLL: Yes. We spoke with the CDC's Paul Mead. We interviewed former Sara Lee employees. Paul Mead's report clearly showed that there was the removal of the refrigeration unit during the July 4th weekend in 1998.

CCR: Why was it removed?

MOLL: It stopped at times. It was not functioning, so they had to remove it and put another one in.

They couldn't remove the refrigeration unit all at once. So, they had to cut it into pieces and remove it from the building.

During the removal process, the pieces were transported through various corridors, including the main corridor, linking the frank production area with other production areas.

They didn't do a sufficient clean up, to make sure their equipment was sanitary before starting production back up.

Their own testing indicated that 92 percent of their samples, during the six weeks immediately after the removal, tested positive for psychrophilic organisms. Sixty-seven percent of their samples tested positive for another 9 weeks, at which time Sara Lee stopped testing altogether.

CCR: What is a psychrophilic organism?

MOLL: It's a cold-loving bacteria.

CCR: A bacteria that loves the cold. And that includes listeria monocytogenes.

MOLL: Correct.

CCR: But we don't know of those 92 percent of the samples that tested positive for cold-loving bacteria, whether any of that included listeria monocytogenes.

MOLL: What Paul Mead indicated in his report was that studies in other meat processing facilities showed that 42 percent of the cultures positive for psychrophilic organisms will yield listeria monocytogenes. In other words, had Sara Lee done further testing, they could have had 42 percent of their positive samples test positive for listeria monocytogenes.

CCR: Why didn't they do further testing?

MOLL: Good question. Ninety-two percent of their samples tested positive for cold-loving bacteria. They have a duty to do further testing. If we can show that the company acted with willful and wanton disregard for the safety of its consumers, they will be liable for punitive damages.

CCR: Back to what caused the problem. You are saying that by moving the old refrigeration unit, the hot dogs were contaminated?

MOLL: Yes, we inspected that facility in January 1999.

CCR: The company let you in?

MOLL: No, we had to get a court order. We videotaped it, we took photographers. We brought in experts and ex-employees. There was a fire there about ten years prior. There was only one part of the old facility that remained standing and they kept production of the meat in that area, while they rebuilt the rest of the facility. That meat production area is unlike the rest of the plant. The rest of the plant had tall ceilings, safety standards are great. This part of the plant looked like a garage. There were low ceilings. You could see water stains on top of the ceilings over where the hot dogs shoot out of the machine.

You assume that all meat from cows have listeria monocytogenes. What do you do to get rid of it? It's a combination of time and temperature to get rid of listeria monocytogenes (LM). You cook it at a certain temperature for a certain amount and it will get rid of LM. But what they didn't prevent was cross-contamination after the cooking process. So, you have all of these hot dogs coming down the line, they are hot, the steam is going up to the ceiling, and it's dripping water back down on to the hot dogs. And that is where the refrigeration unit was in the ceiling.

So, you have all of this bacteria up on the ceiling, leaking back onto the hot dogs, being packaged and sent off. And people died as a result.

CCR: The refrigeration unit was above the ceiling?

MOLL: Correct.

CCR: What did the moving of the refrigeration unit have to do with it?

MOLL: They had to cut the refrigeration unit into pieces. And that stirred up the bacteria. They did not thoroughly sanitize that area. If they did, the bacteria would have been gone.

CCR: How long did it take them to take the old one out and put the new one in?

MOLL: The retail frank area was closed July 3rd through July 5th in 1998. They closed it. They weren't moving hot dogs through there at that time.

CCR: Your theory was that the steam from the hot dogs went up to the ceiling, picked up the bacteria, and the condensation dripped back down on the hot dogs, contaminating them?

MOLL: That was the theory of our experts who inspected the plant.

CCR: The Detroit Free Press got a hold of this information from you?

MOLL: Credit should be given to Paul Mead from the CDC. Mead is the with the Foodborne and Diarrheal Diseases Branch, Division of Bacterial and Mycotic Diseases.

I spoke with the Free Press about this story, also.

We had an ongoing investigation. We had former employees.

CCR: How many former employees?

MOLL: We had a big meeting in a conference room with approximately 12 ex-employees. At that time, the whole facility was shut down. The hot dog plant was not up and running, and so those employees were let go until they could get the plant up and running. And we interviewed those employees.

CCR: How many lawsuits have you filed on this case?

MOLL: Twenty-one lawsuits those were deaths and injuries.

CCR: You also filed the class action why did you also have to file individual lawsuits?

MOLL: The best procedure for a case like this is a class action. You had a lot of people who had minor injuries. It is not practical to file an individual lawsuit on behalf someone who had minor injuries. Bacteria goes to the gut. With healthy people, they might have diarrhea or no symptoms at all. But it may pass in a day or two. They may lose a day or two of work.

Healthy people can pass that through the gut and that's it. But for those who have weakened immune symptoms, people who are pregnant, children, the elderly, they are targets. They can't pass it through the gut. And if they can't pass it through the gut, it goes through the blood system. That's called poisoning of the blood, sepsis, or listeriosis. And it has two places it can lodge either in the heart, or in the brain. In the brain, it causes meningitis or inflammation of the brain. Or it goes to the heart, causing heart failure.

We've had injuries, we've had listeria meningitis, we've had heart failure in a couple of our clients some survived, and others did not. Some of these stories are just heart wrenching.

CCR: How old are these people?

MOLL: They range from five month fetuses to 84 years old. We've had children born with Listeriosis who have died. One child survived 8 minutes while others lasted almost 24 hours. A few children were lucky to survive after being born with Listeriosis, but spent weeks in intensive care and still need to be monitored for potential learning disabilities and birth defects.

CCR: The newborn children obviously didn't eat the hot dog. How did they get poisoned?

MOLL: The mother ate the hot dog, was infected with listeria, and it was passed through the placenta.

CCR: What were the results of the lawsuits?

MOLL: All settled except for two of ours, according to Sara Lee's attorneys.

CCR: Can you say what they were settled for?

MOLL: Unfortunately, no.

CCR: What about the class action?

MOLL: A class action was preliminarily approved by the Court on May 12, 2000 and notice was published in newspapers beginning May 19, 2000, notifying consumers that if you were sick, you can participate in the settlement agreement.

The notice said submit your claim by September 1, 2000 to receive up to $50,000, plus medical expenses. The notice said submit your claim and we'll give you an offer. If you don't like the offer, you can reject it and go through individual negotiations or binding mediation. Or you can opt out and file a lawsuit. Seventy-six people opted out and decided not to participate in the settlement. And there were over 4,000 claims made in the settlement.

The settlement was given final approval by the court on September 15, 2000. Currently, the claims administrator has still not sent out offer letters, even though the claim forms were submitted over 10 months ago.

CCR: You say two of your cases haven't settled. What about those?

MOLL: Those were recent cases that were referred to us by two law firms in January. We thought we resolved all our Sara Lee cases, then two cases came into our firm in January.

CCR: Were there any other attorneys working this case other than your firm?

MOLL: Most of the cases that I know of were referred to us.

CCR: The Detroit Free Press ran a series of articles on this case in 1999. What impact did those articles have on the company?

MOLL: Notice was given to people in Michigan, so that people could get rid of their hot dogs so that they don't injure themselves or kill themselves.

CCR: But the articles ran long after the recall notice was published in the newspapers, right?

MOLL: Yes, but there was still enough time to save people. Many people go out, buy several packages of hot dogs, throw some in the freezer.

CCR: What percentage of the meat products that they recalled were actually recalled?

MOLL: I have no idea. All I know is we had a court order that they had to preserve all of the returned meat products so that we could get our experts in there to test them.

CCR: Did you test them?

MOLL: We didn't have to because we settled the class action.

CCR: Do you know what percentage of the meat that was recalled was actually contaminated?

MOLL: According to the USDA testing, one in nine of the hot dog packages tested positive for listeria monocytogenes. That's 11 percent -- 11 percent of 35 million would be 3.85 million pounds that could have been contaminated.

CCR: What percentage of the 35 million pounds recalled were hot dogs?

MOLL: A large percentage were hot dogs.

CCR: What impact did the publicity from this case have on the sale of Ball Park Frank hot dogs?

MOLL: Sales declined tremendously. But they have made a comeback. Family members have called me and asked is it safe to eat Ball Park Frank hot dogs? I tell them that if I was going to choose a hot dog to give to my child, it would be Ball Park. They have to be the safest now because of their safety procedures set in place after this disaster which should have been set in place before this happened.

CCR: You believe the company has reformed itself.

MOLL: Yes.

CCR: Last month, the company pled guilty to two misdemeanors. You saw the interview we did last week with the U.S. Attorney who brought this case. He says felonies could not have been charged in this case.

MOLL: Everything that he says sounds like comments I've heard repeatedly from the attorneys for Sara Lee.

CCR: The U.S. Attorney says that there was simply no evidence that Sara Lee knew that the food product they were producing and shipping was adulterated with listeria monocytogenes.

MOLL: I disagree. The CDC looked at reports of Sara Lee's testing that indicated 67 to 92 percent of the tests of their own equipment during the 15 weeks following the removal of the refrigeration unit tested positive for psychrophilic organisms. There is a great 1992 study showing that if you do further testing, the psychrophilic organisms would indicate the presence of listeria monocytogenes in 42% of positive samples.

So, for Sara Lee to know that they have positive testing for psychrophilic organisms and say __ let's not test further, because if we test and it indicates listeria monocytogenes, then we have conclusive evidence was wrong.

CCR: But technically, there was no conclusive evidence.

MOLL: There was through the DNA fingerprinting, but we have not seen any internal documents from Sara Lee showing this confirmation.

CCR: So, technically, what the U.S. Attorney is saying is correct.

MOLL: No. Absolutely not. He says there is no evidence of listeria monocytogenes.

CCR: The U.S. Attorney says that the company did very general testing that does not necessarily indicate the presence of listeria monocytogenes.

MOLL: It does necessarily indicate the presence of listeria monocytogenes. Almost half of the 92 percent could have tested positive for listeria monocytogenes, according to the studies.

CCR: There was a grand jury proceeding. Were you asked to go before the grand jury?

MOLL: No. I was contacted by the U.S. Attorney's office in the very, very beginning. They wanted to know whether I would be available if they needed anything from me. That was in the beginning, in late 1999 or early 2000. They never contacted me after that.

CCR: Was Dr. Mead contacted?

MOLL: I do not know. In the interview with you, the U.S. Attorney indicated he didn't even read the Mead report on this. He never contacted the attorneys in the civil actions who blew the whistle on this. Paul Mead and our lawsuit helped to make this public.

CCR: Have you heard from the victims about this guilty plea?

MOLL: They are outraged. They thought for sure this would be a felony. If you have ever seen a baby food manufacturer's operation, they are clean as a whistle. The same should hold true for any food product. They should do more testing, especially when you are removing a refrigeration unit. You should go through there and make sure that all of your hot dogs are safe.

When your own tests indicate that it is not, that you could be manufacturing a product that could kill people, and you don't do further testing, and instead you respond by stopping the testing, that would be a conscious effort.

CCR: How could this type of settlement happen?

MOLL: You have high powered attorneys convincing the U.S. Attorney about the settlement. The U.S. Attorney was overpowered here. You've got a young U.S. Attorney against a very high profile attorney, Anton Valukas. Jenner & Block can be very convincing at times.

And the joint press release indicates to me that the company had the upper hand. They controlled the way that this was reported to the public.

CCR: Had you ever heard of a joint press release between a large corporate criminal and the federal government?

MOLL: No. Even the U.S. Attorney said he couldn't even recall a specific instance where there was a joint press release. It's incredible.

CCR: Who have you dealt with at Jenner & Block?

MOLL: Jeff Coleman, Bill Von Hoene and other associates.

CCR: What was their initial reaction to these series of lawsuits?

MOLL: They approached me and the only thing they wanted me to do was to stop going to the press. And we said we will never stop going to the press. We had a duty to class members who needed to know what happened here.

Sara Lee's attorneys were outraged by our going to the press. They wanted me to keep a low profile. Valukas was asked about this case recently and was quoted as saying "What happened, happened."

We say that what happened -- deaths and injuries to innocent consumers -- should never have happened and should never happen again in the future.

They tried to get the case under Michigan law. We kept it here under Illinois law. We were suing under strict liability and negligence. The decisions were made here in Illinois. They wanted Michigan law, because Michigan law doesn't allow for punitive damages. And they don't have strict liability. They have a negligence standard. The Judge didn't buy it. We won their motion to dismiss our lawsuit. The judge ruled Illinois law applied. Illinois has consumer friendly law. Michigan is corporate friendly. That was back in 1999. Immediately thereafter, we started negotiations.

CCR: When your settled the cases, you agreed not to talk about the amount of the settlement?

MOLL: Yes. But we can talk about the specifics of the case, as we are doing here. The CDC's report is public record.

As a result of our class action, Sara Lee and other meat processing companies have changed the way they manufacture their products and test for deadly bacteria to prevent death and serious injury to their consumers in the future.

[Contact: Kenneth B. Moll, Three First National Plaza, 54th Floor, Chicago, Illinois 60602. Phone: (312) 558_6444, E_mail: lawyers@kbmoll.com]