Dole Facing Lawsuits Over Bagged Salads

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Dole Facing Lawsuits Over Bagged Salads

By AMANDA BRONSTAD

LOS ANGELES BUSINESS JOURNAL STAFF

 

Dole Food Co. Inc. has been sued over the past few weeks by

consumers who contracted a serious form of E. coli from its bagged

salads, one of the company's fastest-growing product lines.

 

So far, lawsuits have been filed involving five people in Minnesota

and Oregon who suffered stomach cramps, bloody diarrhea or kidney

failure from eating three varieties of the bagged salads. The U.S.

Food and Drug Administration has reported more than 20 people in

those states, as well as in Wisconsin, have gotten sick from Dole's

salads.

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Westlake Village-based Dole, which is working with state and federal

investigators to determine the source of the contamination, has

recalled 250,000 bags from grocery store shelves.

 

The recalls involve Dole's " Classic Romaine, " " American Blend "

and " Greener Selection " varieties. An Oct. 2 FDA alert advises

consumers to throw away those three types of Dole salads that

have " best if used by " dates of Sept. 22 and Sept. 23.

 

" It's pretty clear Dole has been definitively implicated in this, "

said Bill Marler, a partner at Marler Clark who has filed the

lawsuits.

 

 

Marler, who has been handling E. coli cases for more than a decade,

said the lettuce gets contaminated because of groundwater problems

on the farms or consumers not washing the lettuce after they open

the bags. But identifying the root cause of the contamination is

difficult, he said.

 

" We sued Dole because they are the clear manufacturer, " he

said. " They're the ones bagging it and have their name on it. "

 

Eric Schwartz, president of Dole Fresh Vegetables, the division that

makes the bagged salads, said the FDA spent the past several days at

the company's lettuce processing plants in the Salinas Valley, but

has " not come up with anything at all. " He added that " they are

implicating our products, but so far we don't have a direct link. "

 

`Serious concern' over outbreaks

 

Elisa Odabashian, senior policy analyst with Consumers Union, said

most bagged salads are washed several times before they reach

consumers and carry the same minimal risk as other fresh produce in

carrying E. coli, which shows up in fecal matter in the water.

 

But Odabashian advises that consumers wash the lettuce, even though

the packages say it's not necessary. " The risk is that consumers

believe that the bagged salad is clean, " she said. " Just because it

looks really nice doesn't mean it's clean. "

 

In some way, E. coli in bagged salads is difficult to prevent.

 

" It's sort of a problem because with hamburger you can cook the

hamburger really thoroughly and it'll kill it, " said Thomas Whittam,

a professor in the National Food Safety and Toxicology Center at

Michigan State University. " With produce, you can wash it thoroughly

but that may not be effective. "

 

Bagged salads are prepared in large batches, which increases the

chance that a small portion of contaminated lettuce could affect a

large number of consumers, he said. Heads of lettuce have not had

the same incidents of contamination because they are not prepared in

large batches.

 

Though the bagged salads are pre-washed, they may not be sterile

from infectious bacteria, Whittam said. " I would stay away from

bagged salads until Dole makes some statement, changes, and

identifies this problem and does things to rectify it, " he said.

 

Dole's salads get washed three times and spun dry in a centrifuge to

get the moisture out before being packaged, said Freya Maneki, a

Dole spokeswoman. She said the company consistently re-evaluates its

procedures but urged consumers to read the dates on its salad

bags. " We want to reassure consumers we take their health very

seriously and that their trust in the Dole brand is something we

value and hold with great respect. "

 

She declined to comment about the most recent outbreaks, citing

pending litigation.

 

In a Nov. 4 letter to California companies involved in the making of

fresh-cut or fresh lettuce, Robert Brackett, director of the FDA's

Center for Food Safety and Applied Nutrition, said the agency

had " serious concern with the continuing outbreaks of food borne

illness associated with the consumption of fresh and fresh-cut

lettuce and other leafy greens. "

 

At least 19 E. coli outbreaks that sickened 409 people and caused

two deaths have been linked to fresh lettuce and spinach since 1995,

with about half traced back to farms in the Salinas Valley in

Northern California.

 

" There is something there that is the source of the contamination

that for some reason is not showing up in other parts of the

country, " Brackett said.

 

The FDA, along with the California Department of Health Services,

recently launched an investigation into the Dole outbreaks, which

are the fourth in recent years originating in the Salinas Valley.

 

None of the previous investigations could determine the exact cause

of contamination. The Salinas Valley, one of the largest lettuce-

growing regions in the world, is made up of several independent

farmers and lettuce producers, as well as some of the largest

competitors in the bagged salad industry.

 

Most of the recent illnesses have been traced to a Minnesota grocery

store chain called Rainbow Foods, a division of Roundy's

Supermarkets Inc.

 

In one case, which was filed in federal court earlier this month in

Minnesota, two girls, ages 11 and 15, suffered diarrhea and started

vomiting after eating one of the Dole salads that their mother had

purchased about a week earlier at Rainbow Foods. The 11-year-old was

eventually admitted to two hospitals for 34 days during which she

underwent four blood transfusions and 18 days of dialysis treatment,

the suit says. The hospital bills totaled $200,000.

Another case, also in federal court in Minnesota, was filed by a

Minnesota couple who got sick from the salads. A third case, filed

in federal court in Oregon, involved a woman who was hospitalized

for five days after eating a Dole bagged salad she purchased at an

Albertson's store in Portland.

Marler said he expects to file about a dozen suits within the next

month against Dole, which could face tens of millions of dollars in

judgments, settlements and legal fees.

 

Other cases

 

Dole is not the first processor to face contamination incidents.

 

In July 2002, dozens of teenage girls at a dance camp at Eastern

Washington University contracted E. coli after eating bagged lettuce

processed by Spokane Produce in the Salinas Valley. Spokane Produce

was sued as the manufacturer of the salads because food service

companies cannot be held liable under Washington law. The same

predicament can be said of the recent outbreaks involving Dole,

whose salads were sold in states with similar laws.

 

In September 2003, more than 50 people suffered symptoms of E. coli

after eating bagged lettuce grown in Salinas Valley that had been

served at salad bars of various Pat and Oscar's restaurants in

Southern California. The restaurant was sued even though six

manufacturers and processors and almost 20 growers and harvesters

were involved in providing the bagged salads.

 

Retail sales for fresh-cut produce reached $10 billion to $12

billion in 2003, the most recent data available from the

International Fresh-Cut Produce Association. Of that, packaged

salads are the most popular with annual sales of between $3 billion

and $4 billion. " When you consider the volume of produce that's

coming out of California, it's increasing all the time, " said Gene

Grabowski, communications consultant to the association. " With more

produce comes slightly more risk. "

 

Dole, with $5.3 billion in annual revenues, processes much of its

lettuce at its own plants in the Salinas Valley. " The lesson learned

is that Dole has been a leader of produce safety, " said the FDA's

Brackett. " If it can happen to them, it can happen to anybody. "

 

Posted by Marler Attorney at 06:05 PM