How the Jack in the Box outbreak built a practice — and rewrote food liability law
In 1993, Bill was four years out of law school, handling general trial work at a Seattle firm, when a former client called about a friend whose child had been hospitalized during the Jack in the Box E. coli outbreak. He took the case, and within months, he had moved from one client to ten, to one hundred, quickly becoming the media face of the litigation and leading cases nationwide.
Shortly thereafter, Bill and Bruce Clark — who had been chief counsel for Jack in the Box during the litigation — formed Marler Clark.
At the time, it was legally unsettled whether a hamburger could be treated as a manufactured product under strict liability law, in the same way a defective automobile with a leaking gas tank could expose its manufacturer to liability. The Jack in the Box litigation helped settle it. Today, if you manufacture a food product that causes illness, strict liability applies.
“When I have a case and I knock on your door, you've got a problem.” — Bill Marler
While outbreaks in the 1990s could be disputed or buried in boxes of paper records, whole genome sequencing (WGS) now produces a genomic cluster linking a company's product to human illness cases. Attribution that was once a fight has become, in many cases, an indefensible fact.
The counterintuitive verdict from the plaintiff's bar
When Frank asks Bill to rank litigation, regulation, and innovation by which have done the most to move food safety forward, Bill doesn't pick from the list. He puts science and public health surveillance first, ahead of all three.
Whole genome sequencing transformed outbreak investigations and root cause analysis, giving investigators the ability to spot contamination before it becomes a catastrophe — work that happens long before any case reaches a courtroom. Without the ability to attribute illness to a specific food source, the entire system, regulatory, legal, and industrial, has no signal to act on.
“I think litigation serves as a tool…but it's a real blunt instrument for change.” — Bill Marler
Innovation and food safety culture change behavior in ways litigation never reaches. Bill points to ground beef safety after the Jack in the Box incident. E. coli O157:H7 cases linked to hamburger once accounted for 99% of his firm's revenue. A sustained effort across industry, government, and regulators drove that down to essentially zero within a decade.
Shortly after Jack in the Box came the Odwalla E. coli outbreak. Representing children who had developed hemolytic uremic syndrome, Bill realized financial accountability wasn't enough to change industry behavior. So, he started showing up at industry conferences, speaking for free, and making the case directly to the people on the other side of his courtroom. Prevention, he'd decided, mattered more than any verdict he might win.
Why avoiding whole genome sequencing is the wrong bet
Some operators avoid placing their facility's resident strains in a public database for fear that a match to a clinical illness case will lead to legal ramifications. In a major Listeria outbreak Bill handled — fifty people sickened, fourteen killed, with WGS confirming the source — only one case ever resulted in a legal claim. The liability exposure companies fear rarely resembles what materializes.
“If your product did sicken or kill somebody, I think that's a moral decision you've got to make to be responsible for that.” — Bill Marler
What sequencing offers is visibility — the ability to see when a plant strain begins to appear in clinical cases and to act before an outbreak develops. In the outbreaks that became catastrophic, the sequencing data existed and the early signals were there. What was missing was someone watching for them.
What's at stake as public health loses ground
Bill has spent his career alongside epidemiologists at the CDC, state health departments, the FDA, and FSIS — consummate professionals, he says, who are trying to do the right thing.
But as Frank describes it, the country is living through a trust bust with public health, and the institutions most critical to food safety surveillance are part of that decline.
“I do hope someday we get back to a more science-based, fact-based analysis, and really lift up people in public health — because they're just trying to do the right thing.” — Bill Marler
Infant formula remains one of Bill's biggest concerns — he calls it a critical part of the food system that's been allowed to be less safe than it should be. Separately, he's pushing for Salmonella to be declared an adulterant, and making the broader case that restoring public health infrastructure is itself a food safety imperative.
The question Dave Theno carried
Dave Theno, a food safety leader who worked in the meat industry, carried a picture of Lauren Rudolph in his wallet for years — a six-year-old girl who died in the Jack in the Box outbreak. When he faced a difficult decision, he'd take it out and ask himself: What would Lauren have me do now?
It's a question and an example Bill returns to repeatedly in his own work.
“Every outbreak I've been involved in — every terrible thing that's happened — could have been far less likely if people had food safety culture in their bones, as part of what they did every day.” — Bill Marler
Outbreaks happen when stock prices, sales, and the cost of doing business crowd out a question like the one Dave Theno would ask. A stronger food safety culture can change that.
This episode of Smarter Food Safety is available now, wherever you get your podcasts.
To learn more about the host, Frank Yiannas, and why Ecolab is partnering on this show, read our profile here.
Episode Field Notes
Terms and resources worth bookmarking for food and beverage operators this year.
Whole Genome Sequencing (WGS): The genomic tool that has transformed both outbreak attribution and food safety litigation, allowing investigators to link a specific product to a specific cluster of human illness cases with unprecedented precision: https://www.fda.gov/food/science-research-food/whole-genome-sequencing-wgs-program
NCBI Pathogen Detection Database: The public repository where companies and public health laboratories upload genomic sequences, enabling real-time cluster detection across clinical cases and food and environmental samples: https://www.ncbi.nlm.nih.gov/pathogens/
Food Safety News: The independent food safety news outlet Bill Marler founded to increase transparency around foodborne illness outbreaks, recalls, and public health investigations: https://www.foodsafetynews.com
CDC's Foodborne Disease Outbreak Surveillance System (FDOSS): The national system Bill references when he warns about what happens when public health surveillance loses funding — outbreaks that go unsurveilled can't be attributed, and outbreaks that can't be attributed can't be fixed: https://www.cdc.gov/nors/about/fdoss.html
