Bill Marler doesn’t sound like a shark-toothed lawyer anxious to take another big bite out of the U.S. meat industry. He does, however, sound perplexed. "It’s like the old Buffalo Springfield song, ‘Somethin’s happenin’ here, what it is ain’t exactly clear," he says.

Marler, chief partner at Marler Clark L.L.P. in Seattle, Wash., is the attorney who won the original judgments against the beef industry in the wake of the watershed Jack in the Box outbreak 14 years ago – resulting in judgments totaling millions of dollars. Marler has filed suit again this year in the wake of this past spring’s and early summer’s surge in E. coli-related beef recalls. What perplexes him, he says, is why it’s happening all over again. From 1993 into 2002, "about 95 percent" of his firm’s income came from E. coli cases brought against the meat industry by families of children and adults who had been sickened or killed by E. coli-adulterated meat. But then the cases dropped off – dramatically. "In 2003 there were a couple, in 2004 zero," Marler comments. "To be honest, we were heartened by the fact that we were hardly seeing any new E. coli cases. My hope was that all the stuff the industry had been doing, particularly since 2002, was paying off." But the spate of new recalls and outbreaks has surprised him.

To date there have been five significant E. coli-driven recalls of beef products so far this year. The most recent, in July, covered nearly 27,000 pounds of ground beef recalled by Abbot’s Meat Inc., in Flint, Mich. In early June, United Food Group in Los Angeles, Calif., expanded its recall of E. coli-adulterated ground beef to cover 370,000 pounds in addition to the original 75,000 pounds it recalled earlier in May. To date, according to Marler, 40 cases of E. coli sickness are linked to the United Food outbreak. That company, by the way, was one of the processors implicated in the Jack in the Box E. coli outbreak in 1993.

Meanwhile, on May 10, the U.S. Dept. of Agriculture’s Food Safety and Inspection Service announced a 117,500 pound recall of ground beef products processed by PM Beef Holdings in Windom, Minn. The meat had been sold to distributors and retail outlets in Arizona, Illinois, Iowa, Michigan, Minnesota, Ohio, Virginia, and Wisconsin. Minnesota and Wisconsin health officials traced at least seven E. coli illnesses to consumption of ground beef products purchased at Lunds or Byerly’s stores in the two states.

On April 20, FSIS announced the recall of 107,900 pounds of frozen ground beef processed by Richwood Meat Co., Merced, Calif. The California Department of Health Services discovered the E. coli adulteration during an investigation. The ground beef products were distributed to stores in Arizona, California, Idaho, Oregon, and Washington. Also on April 20, the FSIS and the Pennsylvania Department of Health announced that steak products produced by HFX Inc. of South Claysburg, Pa., and sold at Hoss’s Family Steak and Sea Restaurants, a Pennsylvania-based restaurant chain, were potentially contaminated with E. coli O157:H7. The announcement came after an investigation linked several E. coli illnesses to consumption of the steaks at Hoss’s. The processor recalled approximately 4,900 pounds of meat products.

"It’s another June like we were having back in 2002 and 2001," Marler says. In fact, in June he filed a lawsuit against PM Beef Holdings on behalf of E. coli-sickened consumers. "Basically what we’re seeing now is what we normally used to see. It’s not good."

Why does the litigation attorney think a cluster of outbreaks and recalls has suddenly occurred now, five years after he saw the pace drop to zero? "I honestly don’t know," he said. "Why do the meat processors think it’s happening? That’s something I’d like to ask them."

The meat industry isn’t sure why. "There isn’t a silver bullet to point to why we’re seeing E. coli fluctuations in the environment. Right now, there are a lot of factors that are converging, including weather, which could be causing an increase in the E. coli prevalence," says James "Bo" Reagan, vice president of research and knowledge management for the National Cattlemen’s Beef Association and a member of the Beef Industry Food Safety Council. "We’re seeing a higher incidence of E. coli this season and, in some cases, these higher levels have the ability to significantly tax the interventions currently in place."

He adds: "I can tell you that we’re watching this closely and everyone in the beef industry is working together to make sure we have the appropriate steps in place to safely manage an increase in E. coli."

Another BIFSCo member, Dr. Mohammad Koohmaraie, director of the U.S. Meat Animal Research Center of USDA, is similarly perplexed by this year’s E. coli surge, but offers two explanations. "One is that we might’ve exceeded the capacity of some of our interventions," he says, echoing Reagan. "If what comes into the plant exceeds the capacity of the interventions, then we’ve got a problem. The other is that maybe we celebrated our successes just a little too much; that we got just a little complacent. I think the reality is it’s probably a little of both. It’s easy to let your guard down. We’re all human."

"E. coli numbers change throughout the year and the warmer months are typically a time we see an increase in the amount of E. coli occurring in the environment," points out Reagan. "Additionally, according to FSIS, foodborne illnesses tend to increase during the summer because bacteria grow faster in the warmer weather when more people are cooking outside at picnics and barbecues."

Koohmaraie agrees there is some seasonality to pathogen counts, but in terms of cattle coming in to slaughter with high pathogen loads, winter is much worse than summer. "Right now, the cattle are at their cleanest. There’s little mud attached to their hides, not like in December and January," says the USDA official and researcher. He pauses. "To be honest with you, we don’t really understand the seasonality of O157. We would like to go to a cattle-producing place that doesn’t have as much seasonality as the Midwest and High Plains and see how and if the E. coli numbers change there." He chuckles. "Like Hawaii. It’s not so easy to convince the taxpayers you’re not on vacation in Hawaii, though."

With regard to hides specifically, NCBA and BIFSCo recently distributed an advisory that suggested reviewing critical procedures with all employees. "We need to keep concentrating on the hide removal process throughout all seasons since this remains the most critical step in reducing and controlling E. coli," comments Reagan. Koohmaraie advises packers to simplify their assumptions. "What I tell the packing plants is to assume that 100 percent of the cattle coming in are positive for O157. If you make that assumption, you’re going to work very hard to make sure your interventions at every step of the way are effective."

Both BIFSCo members give a lot of credit to the industry for making tremendous strides since 1993 to control E. coli – and, perhaps surprisingly, so does Bill Marler, who so often has been the industry’s adversary in court. In addition to industry efforts, he’s been impressed by the response of the industry’s customers, including major supermarket and foodservice chains, who have demanded better, cleaner processing for safer products. Marler’s suspicious, however, that distribution may play a part in the recent outbreaks. "There’s a problem with the chain of distribution. Everybody who’s doing something to the meat, they’re a processor. And I don’t think some of them have the controls they need to have," the attorney comments.

Reagan notes that management of the entire cold chain was addressed at the Beef Industry Safety Summit held earlier this year, with an eye toward further development of best practices for the distribution sector, which he called "a high priority" for BIFSCo and NCBA. He says that rather than focus a lot of energy strictly on distribution, he thinks getting E. coli out of cattle in the first place is the best approach, and he’s a fan of preharvest interventions. "Our research has shown the efficacy of a number of pre-harvest treatments which reduce or eliminate E. coli," including probiotics, which are now used in a high percentage of feedlot operations. But, he hastens to add, "until there are more government-approved, pre-harvest interventions, we need to focus on working with the rest of the beef chain to implement existing safety interventions that have been approved for use."

In addition to pressing government agencies to green light more preharvest interventions, the industry, through BIFSCo, NCBA, the American Meat Institute, the National Meat Association, and other organizations, is working on more open and better communications with USDA, the Centers for Disease Control and Prevention and the Food and Drug Administration, Reagan says, while at the same time continuing to implement and improve existing best practices and conducting new research into new interventions. He believes in an acrossthe-board approach, and when asked about the concerns of some processors that E. coli adulterations discovered in processing plants are not being adequately traced back by USDA to the slaughterhouse, he emphasizes the cooperation he’s seen in the industry in recent years.

"The tremendous progress in beef safety through the years was only possible because we tore down the walls and worked together across all sectors of our industry. Being open and working together as a united industry is the only way that we can continue to enhance the effectiveness of our safety systems and the safety of our products," he stresses. "If nothing else, these last few months continue to drive home that there are no silver bullets for controlling E. coli. We all have a role in keeping our products safe, and that’s why many processors are implementing best practices such as trim sanitizers and finished product testing."

For his part, Bill Marler thought he had left the meat industry behind. In recent years, Marler Clark’s food cases had centered for the most part on E. coli illnesses traced to fresh produce. "It’s strange and it’s disheartening. A few months ago I was down in California talking to a reporter from CNN about the spinach situation, and he said, ‘We’re not hearing much about meat anymore,’ and I totally agreed with him. But it’s certainly a different situation now," he observes.