In the News

Was It Something You Ate? The Adventures of a Food Poisoning Attorney

A deep-dive into the horrors of food-borne illnesses may not seem like an appetizing path for a young attorney forging a legal career. But for Washington based-attorney Bill Marler, handling plaintiff cases after the 1993 Jack in the Box E. coli outbreak gave him unique expertise and led to a niche practice that specializes in representing those affected by food-borne illnesses. He is now one of the nation’s leading food safety experts and a prominent advocate for food safety policy in the U.S. and abroad.

In this episode, Bill shares some juicy tidbits about the prevalence of food-borne illnesses and how most claims aren’t pursued due to difficulty in proving causation. We also learn about how this sticky lawyer’s love of blogging predated the internet but led to numerous referrals and Marler Clarke’s reputation as the leading food safety firm in the nation.

 

Guest Insights

  • Introduction to Bill Marler, food poisoning attorney [0:00:04]
  • Marler’s transition into food safety law [0:02:15]
  • Background on the Jack in the Box E. coli outbreak [0:07:04]
  • Jack in the Box knowingly undercooked hamburgers [0:08:21]
  • Marler’s experience and reputation in the field [0:10:20]
  • Marler’s advocacy efforts to change food regulations [0:14:29]
  • Marler’s approach to handling individual cases vs. class actions [0:17:49]
  • Marler’s involvement in various foodborne illness cases [0:20:11]
  • The prevalence of foodborne illness in the U.S. [0:30:34]
  • Marler’s marketing strategy, including blogging [0:33:12]
  • His selectivity in taking on cases [0:39:15]
  • Marler’s perspective on food safety and skepticism [0:43:49]

Links From the Episode

Transcript

John Reed [0:00:05] – What did you have for breakfast today or dinner last night? Almost unquestionably, at least some of the food in the meal you ate originated someplace far away and was likely processed or transported to your table. Think about that journey and the human and environmental factors involved. Like auto manufacturers and drug companies that we trust to produce safe products,

[0:00:47] – We look to growers, processing facilities, transportation and logistics companies, government agencies, retailers, restaurants, a whole host of players in the supply chain, to ensure the food we consume is safe. When protocols are overlooked or preventable, mistakes are made, and foodborne contamination becomes a very real threat. Let’s not be cagey about the type of law today’s guest practices. Bill Marler is a food poisoning attorney, probably the nation’s preeminent food poisoning lawyer.

[0:01:18] – He represents people sickened by E. coli, salmonella, listeria, and other foodborne illnesses, recovering millions of dollars in compensation for children, families, food workers, and others. But Bill has also used his vast knowledge to shape food policy in the U.S. and elsewhere. He is that sticky lawyer who effectively seeks to put himself out of business by seeking to change laws, government standards, and industry practices to prevent dangerous or tragic contamination outbreaks in the first place.

[0:01:50] – I’m excited to learn more about him. Well, Bill, welcome to the podcast. There’s a lot to your illustrious career that I want to cover, but let’s start at the pivot, the shift that propelled you into food safety law. You went to law school in Seattle, you graduated in 1997, but your first six years in practice had nothing to do with food safety. What were you doing then and what prompted the transition?

Bill Marler [0:02:15] – Yeah, so I wish it was 97 because then I’d be ten years younger,

John Reed [0:02:19] – Oh! Sorry.

Bill Marler [0:02:21] – It’s all right. Yeah. I graduated in 1987, and I went to work with the largest law firm in Seattle at the time was Vogel and Gates, and I was doing primarily asbestos defense work. So, I spent about the first year doing depositions of Mesothelioma widows, which is not kind of really what I thought I would be doing when I got out of law school.

[0:02:48] – And then about a year into that, I left the firm with a couple of their senior litigation partners. And they were wanting to start a boutique firm and was with them for a couple of years. It was just more seven-day-a-week, 365 kind of job that it was going to be a long time to be a partner. So, I decided that I really kind of had enjoyed doing personal injury cases, had done a handful of them when there weren’t conflicts in the firm.

[0:03:22] – And so I decided to go to work for a small plaintiffs’ boutique firm in Seattle. I worked there for a year, and then they got divorced, and so the firm blew up. And so, I was left without a job, and I had just gotten married and had a baby. So, I went to work for kind of a mid-range, primarily insurance, defense, but also business litigation firm. And I worked there until 1993, when the Jack of the Box case sort of blew up in Seattle. I tried a bunch of cases, all kinds of different things, from construction dispute cases to small personal injury matters.

[0:04:04] – But I had wound up getting some of the very first Jack in the Box E. Coli cases. Of course, no one knew what E. coli was. Nobody understood foodborne illnesses. I remember deciding that I was going to file the lawsuit but figured before I did that, I should know something about what it is that I was doing. So, I went out to the University of Washington Medical School library, and that was before computers, by the way.

[0:04:31] – And I just walked up to the receptionist, “Do you have anything on E. coli?” And she goes, “Oh, you must be interested in the Jack in the Box case.” I’m like, yeah. So, I read a bunch about E. coli, so I was able to understand what it was and the impacts on the human body. Filed the lawsuit, and I went from having one case to ten cases to 100 cases relatively quickly. And to make the long story longer, I essentially offered to be the lead lawyer.

[0:05:06] – There were a lot of really good plaintiffs’ lawyers who had these cases. And my firm that I was at was primarily a defense business firm, so everyone was a little suspect of me. But I offered to do the bulk of the work and people went along with that. After about a year, we started getting the really significantly injured cases. I’d been doing a lot of the heavy lifting on discovery. I really realized that these were cases that were going to go somewhere.

[0:05:37] – This is getting a lot of pressure from the firm to resolve them, but I just didn’t feel like the time was right. We needed more discovery, and I thought we could increase the values of the cases for the people. And I also at the same time started asking them, why don’t you guys make me a partner? Make me 1-23rd partner? And they were like, “No, you’ve only been out of law school for six years and you’ve only been with the firm for two.

[0:06:04] – No, we’re not going to do that.” So, I decided to leave. And after I left, I reached out to all the clients and said, “Hey, look, you have a choice. You can either come with me, you can stay at the firm, or you can go somewhere else.” And most of the clients chose to come with me. Understandably the firm was a little pissed, but we worked that out and we agreed to settle the dispute by me promising to pay them $2 million out of the first settlement.

[0:06:39] – So the first settlement was two cases that settled for $24 million. So, I happily wrote them a check for $2 million and walked it back to their office.

John Reed [0:06:52] – So let’s go back for a second. Give us the context of Jack in the Box. I mean, that was earth-shattering at the time, but give us the facts around that and then we’ll go into a little bit more about your handling.

[0:07:04] – So, the Jack of the Box outbreak was the first major E. coli case and really the first major foodborne illness case that really sort of blew up. It’s not that there hadn’t been foodborne illness cases, but just sort of the media coverage and everything, I think it was. And the size of it, there were nearly 700 people sickened, four children dead. There were about 100 kids who were hospitalized with acute kidney failure.

[0:07:33] – Jack in the Box, we uncovered that they were knowingly undercooking their hamburgers in violation of Washington state law. And the meat that came from a variety of suppliers was highly contaminated with this pathogenic bacteria, E. coli O157:H7, which to that time frame had caused some sporadic outbreaks linked to hamburger over the decade before. But it just wasn’t a really well-known causative agent for outbreaks.

John Reed [0:08:10] – Let’s go back to the knowingly part. There were standards for cooking the meat. Was it just an efficiency thing? Was it a time saver? What was the reason that was keeping them?

Bill Marler [0:08:21] – You’re actually coring right in on it. So, in early 1992, so essentially a year before the outbreak, the Washington State Department of Health was pretty sophisticated and they were paying attention to these E. coli cases linked to ground beef. There had actually been a small one linked to a Mexican restaurant in eastern Washington a couple of years earlier in the early ‘90s. And so, in order to combat it, they decided to raise the Food Code Temperature for internal temperature of hamburger from 140 to 155 to assure that there was a kill step that was going to efficiently kill the bacteria.

[0:09:02] – And they disseminated that information to all restaurants in the state of Washington and all corporate headquarters that had restaurants in the state of Washington. So, Jack in the Box got it in the corporate headquarters, they got it in all their restaurants in the state of Washington. But Jack in the Box simply, and we were able to document this through discovery, they knew about the change from 140 to 155.

[0:09:28] – But because they had restaurants in multiple states that didn’t share the increased requirement, they chose to essentially ignore it and to stick with their two-minute cook time because they were a fast-food restaurant. So, after the outbreak happened, they changed their cook time to two minutes and 15 seconds. That 15 extra seconds was enough to get hamburgers to the internal temperature of 155.

John Reed [0:09:55] – So no biology background. You were a Poli Sci major in college, so you’re obviously a quick learner. You went to medical school just by going to the library. So that’s quite something. And you’ve got partners at your law firm that are saying you’re only six years out. You can’t be a partner. What was the other side saying when they were looking at you? Were they saying, “Yeah, you’re only six years out. What kind of a threat can you be?”

[0:10:20] – Were you facing that type of opposition?

Bill Marler [0:10:22] – It’s a good point, but I feel I’ve always been a very blessed guy and damn lucky. I mean, I work really hard. I’ve always worked really hard because I was one of those guys had graduated solidly in the middle of your law class. So, I’ve always felt like I’ve had to work a little harder than everybody else. And I think if you probably talked to all of my opponents for the last 30 years, they would say that as well.

[0:10:50] – But it was interesting. The guy that wound up being the lead lawyer for Jack in the Box in this litigation was this gentleman named Robert Piper. Classic old-school trial lawyer. Had polio as a kid, so he had a bit of a limp, and he was quite the ladies’ man and quite the guy in a courtroom. In fact, the last of his four wives he met while she was on a jury in a case he was trying. In any event, a couple of years before Jack in the Box, I wound up trying a case against him, and I’d beat him.

[0:11:30] – And he was the kind of guy that would take you out, and he’d drink a bottle of wine while you were sipping on your glass, and he was complimentary of the work that I did. And so, when the Jack in the Box case hit and I wound up representing people, I think he knew that I was young, but that I was going to work hard. And so, when I left the firm, I actually joined as a partner, a small plaintiffs’ firm, and the named partner in that firm had gone to law school with Bob. And so, they were in that same sort of old school ilk of guys that by the time they were 30, had tried 200 cases.

[0:12:15] – It’s a different world than I grew up in.

John Reed [0:12:18] – So back to before you left to join that smaller plaintiffs’ boutique firm. Were you getting any support from your insurance defense firm, the one that wouldn’t make you a partner?

Bill Marler [0:12:29] – Yeah, as long as I kept up my billable hours, they were fine doing what I was doing. So basically, I was sort of doing my billable hour work, which was required, and running this plaintiff’s work on the side with essentially one paralegal and a secretary.

John Reed [0:12:46] – Defending big corporate by day and taking on big corporate by night.

Bill Marler [0:12:51] – Exactly. So, I remember I had only been married for a couple of years. And I live on an island across from Seattle, and we were living in this little cabin on the beach. And the ferry, first ferry off the island at the time was 545. And the last ferry to the island would come back at 1:00. That’s it. And so, I’d be on the 545, and most nights I would be getting home at nine or ten. And I did that. My wife can attest. I did that for about two and a half, three years during the course of the Jack in the Box litigation.

John Reed [0:13:29] – And for those listening who may not remember, this was such a landmark case and landmark incident. There are literally books written about you.

Bill Marler [0:13:39] – Yeah.

John Reed [0:13:40] – And I’m actually looking. You were kind enough to send me a copy. It’s called “Poisoned.” It’s 2013. Is that when it was published?

Bill Marler [0:13:47] – I think so, yeah.

John Reed [0:13:48] – And it’s going to be making its way to Netflix as a documentary. So, I won’t ask you who’s playing you in the movie.

Bill Marler [0:13:53] – No, actually, the only downside of it being a documentary is they got a bunch of video of me 30 years ago. There’s going to be a stark contrast. They’re like, “What the hell happened to Marler?”

John Reed [0:14:08] – You said before Jack in the Box, you had been trying or handling personal injury cases. Besides its notoriety and, certainly the great result that you secured for clients, what was it about that area where you said, you know what, this is what I’m going to do going forward? I’m going to devote my practice, or at least much of my practice, to food poisoning and food safety cases.

Bill Marler [0:14:29] – What happened was most of the Jack in the Box cases resolved in 1995, early 1996. There were cases that settled even in ‘93, ‘94. Some lawyers had one case here, one case there. They settled. But I pushed forward pretty hard on the discovery side of the equation. And once I got the documents that I sort of described showing their failure to cook temperatures, then I felt like it was kind of ready to resolve. I think I played that right.

[0:15:06] – And so I think I had only had one case left in 1996, all the other ones had resolved. And the one case was just a complex case because the kid had a bunch of preexisting conditions, and we were trying to get experts to parse out which is related and which is not. And that case was kind of winding down. And I was doing other personal injury cases, to be honest with you. By then, there are a lot of really good plaintiffs trial lawyers in the Seattle area, in the Pacific Northwest. Many of them are my friends, many of them are old and they’ve retired by now. But I get a look at many of the big cases that would be going on in Seattle, in the Pacific Northwest at the time. And lawyers were referring cases to me, not food cases, but just cases from around the country.

[0:15:54] – So I was kind of getting back into away from food poisoning cases. And then there was another E. coli outbreak that happened linked to Odwalla apple juice. And it was a smaller outbreak, about 80 people. One child died, about a dozen people with acute kidney failure. And I started getting referrals from lawyers from all over the western United States. And then I filed those lawsuits. And at that point in time, I needed some help.

[0:16:25] – And I hired away from Bob Piper’s firm, the firm that had defended Jack in the Box. I hired away one lawyer, an associate, to come work for me. And then in 1997, early 1998, when the Odwalla cases were winding down, he and I started talking about, “Gee, wouldn’t it be interesting if we focused on this?” And that was the genesis of Marler Clark. So, I started Marler Clark with Bruce in 1998. We had Bruce and I, two other lawyers, and four staff, and we had probably less than 25 cases.

 [0:17:08] – But I had done well in Jack in the Box and Odwalla, so I could bankroll the firm for a while. And we started Marler Clark essentially completely focused on foodborne illness cases. And that’s essentially what we’ve been doing since 1998.

John Reed [0:17:26] – So let me ask you this question. When you make that decision, you had some money in the bank, and that helped. For those that aren’t familiar, plaintiffs’ cases, especially as they get bigger and bigger and bigger, there’s costs that are involved. And then you’ve got, of course, the overhead of running a firm. But you did something interesting alongside that, though. You could have just handled cases and you could have just marketed your practice. And we will talk about how you did that in a few minutes.

 [0:17:49] – But somewhere along the line, you made the decision to also become an advocate, to seek to change the policy, to try to influence government standards, and as I mentioned in the introduction, essentially seek to put yourself out of a job if you were successful, ideally.

Bill Marler [0:18:07] – So I think a lot of plaintiffs’ lawyers and not incorrectly, I mean, I think there’s litigation that occurs that changes corporate behavior. There is, there’s lots of examples of that. And I think after the Jack in the Box case and the Odwalla case, I thought that somehow, kind of miraculously companies would stop poisoning people. But it became pretty clear to me that that wasn’t really going to happen.

[0:18:38] – And by then, I had represented dozens and dozens of little kids, primarily, who, through no fault of their own, ate a food item that caused them to need kidney transplants or suffer brain injuries. And by then, I had two little kids of my own. And I said to myself, it’s like this could just happen to me just as easily as it happened to these other people. And so, I started getting offers to speak at food safety conferences and sometimes by corporations who wanted to hear kind of my side of the story, to the point now, especially after COVID, probably about a quarter of my time I spend talking to companies about why it’s a bad idea to poison people. And I’ve also spent a lot of time advocating for changes in food regulations.

[0:19:35] – I petitioned the government to expand the definition of what’s considered an adulterant in food. I was, I’ll say, instrumental in helping move the Food Safety Modernization Act through Congress and to get it signed by President Obama in 2010. And I’m still advocating. So, I guess it became less of a job and more of a, I guess, a difference between a vocation and an advocation.

John Reed [0:20:02] – Well, and what’s also curious about your background, I’m sure there’s a correlation, is you didn’t wait until, I don’t know, graduating from college to hold public office.

Bill Marler [0:20:11] – Or there’s that, too.

John Reed [0:20:12] – I think I’ve read you were the youngest elected official in the history of the state of Washington when you were elected to the Pullman City Council. Is that correct?

Bill Marler [0:20:21] – In 1977. I just turned 19 years old. So, 18-year-olds had just gotten the right to vote a couple of years earlier. So, yeah, it was a big deal. And I sort of always thought that I was going to be president by age 35. So, a lot of what I do outside of being a lawyer, the advocacy stuff and the speeches is kind of like my political fix.

John Reed [0:20:48] – Well, in 1977, I think that’s pretty close to Animal House, so that’s a whole different version of the college student and not too far away from you.

Bill Marler [0:20:55] – The funny thing is, I look back on my college career, there were a lot of things I missed out on because I was a public figure, and it wasn’t like I could join in with John Belushi and the boys doing a kegger and a raid. So, yeah, it wouldn’t have looked good.

John Reed [0:21:17] – In the local paper, you’ve talked about E. coli. I don’t want to make light of other contamination, but what are some of the other illnesses, foodborne contamination, other types of cases, other types of defendants that are kind of amongst your greatest hits?

Bill Marler [0:21:34] – We could talk for hours, unfortunately, about that. But it’s funny that we did E. coli cases, and then we started getting salmonella cases and listeria cases and campylobacter cases and norovirus cases, hepatitis A cases, and there is not one food-borne illness outbreak of any size has happened in the United States in the last 30 years that I haven’t been involved in. And 99 out of 100 times our firm has led the charge on it.

John Reed [0:22:07] – So you can add doctor or infectious disease specialist, unfortunately, as you say, to your title, too.

Bill Marler [0:22:14] – Well, I’m really lucky that the firm has done well over the years, and we’ve been able to have people on staff. I think I probably am the only law firm in the country that has a medical epidemiologist on staff, a former official from a state department of health. And so, yeah, we’re really lucky to have, I’m really lucky to have a team of super knowledgeable people that fill in the many, many gaps that I have.

John Reed [0:22:43] – Your advocacy efforts in terms of policy, I’m going to ask this question. I hope I’m asking it the right way. In 1993, what was the state of the law? I guess locally in Washington, but I guess federally, nationally as well, such that it had to be improved and made more consumer-focused through your efforts since then?

Bill Marler [0:23:04] – That’s a great question. So, for the lawyers listening or anybody listening, there’s actually a great case. It’s called APHL v. Butz. It’s the American Public Health Association versus Butz. Butz was the Secretary of Agriculture under Nixon, and the APHL filed a lawsuit against the USDA asking the USDA to put a label on meat, telling people to cook it thoroughly. The idea behind it was because there were lots and lots and lots of salmonella cases linked to meat, and the USDA took the position, along with the beef industry, that there’s no reason to put a label on it because—and it does say this—“housewives know how to cook meat properly.” That’s what the court determined.

John Reed [0:23:51] – Wow, what a progressive statement.

Bill Marler [0:23:52] – And I think we’re going back to that, by the way.

John Reed [0:23:57] – That’s another podcast.

Bill Marler [0:23:59] – So the state of 1993 was that was the viewpoint of the people who regulated food, that ultimately it was the consumer’s responsibility to make the product despite the fact that it was stamped USDA approved. It was the consumer’s responsibility to make the food safe. And the reality is that’s just not logical. When the Jack in the Box case blew up, E. Coli O157:H7 was not considered an adulterate in meat, and that it was okay to knowingly sell a pathogen-tainted product onto the market, knowing that most consumers would not cook the meat thoroughly enough to kill the bacteria.

[0:24:49] – So, Jack in the Box changed that. The change of having an adulterate and then several years later expanding it to other pathogens that could cause similar illnesses has been a work in progress, frankly, for 30 years. And now I’m teed up with them. I mean, I don’t relish suing the government. It’s going to be a schlog and a pain, but no one else is doing it, so somebody’s got to do it.

John Reed [0:25:20] – Are you finding simply because of your speaking engagements and your acceptance by, quote, unquote, the other side? Are you finding corporate America is number one, more receptive, maybe more litigation averse, maybe more protective of public reputation so that they’re less of an opponent than they were an obstruction in 1993?

Bill Marler [0:25:43] – It’s a great question. I think there has been a sea change with a lot of especially the big box players, the Costcos, Walmart, the big restaurant chains. I think they’ve gotten it. Frank Yiannis, who’s the head of food safety at the FDA, was both at Disney and then at Walmart, and I got to know him well because I sued both of those companies a few times. But he’s now at the FDA, and I think trying to do the lord’s work.

[0:26:13] – And he and I teach a class together at Michigan State University for executives about food safety culture. I think there has been some positive things. And I also think the fact that I’ve made myself available to come to conferences and to speak with corporations at no fee. Because sometimes companies want to hire me to come in and give a speech for $50,000 and then they want to try to conflict me out as moving forward.

[0:26:42] – No. So, I do it all for free. But I think it makes it hard for them to just sort of brush me away as the ambulance chasing plaintiff’s lawyer. I mean, not to say that I haven’t had people, giving a speech, having people yell at me or walk out or say, how do you sleep at night? Kind of thing. But for the most part, I look at it like, hey, I generally represent little kids and pregnant women who you’ve poisoned because you didn’t take due care in producing your food.

[0:27:14] – I sleep very well at night.

John Reed [0:27:16] – I want to ask you a question about, I guess, for lack of a better word, strategy, procedural stuff, and again, this may be an education for non-lawyers listening. You’ve talked about handling individual cases against a defendant, and then you’ve also talked about leading class action lawsuits. What is it that helps you make the determination as to which you’re going to pursue? Obviously, a large group of people are all injured in the same or similar way.

John Reed [0:27:43] – But is there other strategy that goes into that?

Bill Marler [0:27:47] – Actually, I won’t say never. I have done some class actions, but they’re usually in cases where the facts of liability and the damages are essentially identical. And that is really, really rare in personal injury cases or foodborne illness cases. And for the most part, I will do every single one of them individually, because I think people deserve to have that sort of individual care primarily because everyone is different.

[0:28:17] – And even though the causative agent is the same and the product is the same, the damages both short and long-term are completely different. And courts appropriately don’t recognize those kinds of cases anymore as class actions. Doesn’t mean that some lawyers don’t file class actions. In cases even where I represent 90% of the people, it’s not unusual to have a lawyer file a class action, but they don’t go anywhere.

[0:28:46] – So strategically, not to tell all your listeners my secret sauce, but that you asked. Strategically, usually what I do is I file a handful of individual cases, sometimes in state court, federal court, sometimes both, that allow me to do the kind of discovery that I know how to do very efficiently as I build up the cases, both from a damages point of view for all the other people. So, I may have 150 cases, but I only have two in litigation.

[0:29:21] – And if I have to file all 150, I’ll do it. But usually within a few months, six months of the outbreak, I pretty much know where this thing’s going to go. And if I have to file them all, I’ll file them all. If I don’t, then usually what happens is you get the discovery, you figure out what the liability picture is, and then it’s just a matter of, since it is strict liability for the most part, then it’s just really a matter of assessing damages.

[0:29:52] – And most cases resolve because in 30 years, I have pretty much set the standard of what the values of these cases are. So, it’s not like I can’t sit down with somebody on the other side and go, “No, I settled a similar case with you ten years ago for blank. You’re going to pay that plus a little more.”

John Reed [0:30:17] – You created your own bellwether cases for your groups of cases. It’s really interesting. When we first spoke, you described the prevalence of foodborne illness and outbreaks in the U.S. versus the rest of the world. I’d like to talk about that if you could.

Bill Marler [0:30:34] – Sure. So, the CDC statistics are pretty alarming. Just here in the U.S., CDC estimates that 48 million Americans are sickened by a food-borne illness every year. The vast majority of those cases, probably 80%, are norovirus, which is commonly the stomach bug or the winter flu. That kind of thing usually passes quickly and for the most part very difficult to pin down because it’s so easily transmittable.

[0:31:03] – It could be person to person, it could be through food, it could be just from the air you breathe or the thing you touched. Sometimes it’s very difficult to tie down that, oh, that’s what caused it. The rest of the cases are salmonella, E. coli, listeria, campylobacter, and a variety of other pathogens that are reportable. But most food-borne illness cases, even setting aside norovirus cases, most salmonella, most E. coli, most other cases are never linked to a particular food, primarily because not everyone gets tested, not everyone remembers what they ate three weeks ago.

[0:31:46] – Most people think that a foodborne illness is something they ate, like five minutes ago. But there’s certain bacteria, like there’s an outbreak that was just announced primarily in Florida, listeria outbreak of unknown food source. But the incubation period for listeria is three to 70 days. So, the time frame between when you ingest the food, and your onset of illness may vary from three days to 70 days.

[0:32:14] – And I’ll ask you, what did you eat three days ago? And you’d be going, “Uhhhhh.” And so that’s sometimes the problem. And that’s why there’s not 50 Marler Clarks in the US. And that’s why we’ve still got eight lawyers and 20 staff is that it’s very difficult to figure these cases out. Even as good as we are and as much information we have, they’re still very difficult to say that’s what food product caused you to get sick.

John Reed [0:32:46] – Understood. I did want to talk to you about marketing your practice, particularly in the early days you were blogging. You are an award-winning blogger, but you were blogging before blogging was cool. And you mentioned that when you made the decision with your partner to focus on food safety law to get the word out, you were blogging. I know you said you give a lot of presentations, but back then, I bet they were different than what they are now, right?

[0:33:12] – Talk to me, if you will, about what you were doing back then to educate the public about how you drive business and how that’s changed over the years.

Bill Marler [0:33:23] – So I know this is going to be hard for some people to wrap their head around, but in 1998, when we started Marler Clark, the internet was like— I mean, Google didn’t exist. We had one of our clients, a salmonella victim who happened to be a web designer, design our website. I think people back then thought of a firm website, kind of like the brochures that used to be in the lobby of law firms, and you’d be able to go, “Oh, you can look at my website.”

[0:33:54] – Essentially, that’s the way things were sort of statically from like 1998 until 2004 when I started blogging. And I’ll kind of get to the blogging part in a minute. But the way we did cases and the way we kind of marketed our practice from ‘98 to 2004 was primarily the way you did it earlier. You did good work. These cases were invariably interesting to the media. If you Google “Daily Harvest” today, it’s just all over the news.

[0:34:34] – So that’s sort of in and of itself, the practice generated a lot of interest. But the Internet made it easier for people to find you. So instead of, I’d say from ‘93 to 2000, most of the cases we got were referrals from other lawyers who had a case, didn’t know what they were doing, and they called and said, hey, could you tell us? In this case, I’d say probably after 2000, most of the cases were coming to us directly because people were able to find you.

[0:35:10] – And then, as you kind of already figured out, I sometimes have a lot to say and I have a lot of thoughts. And the blogging part of what I’ve done is primarily because I am paying attention to what the heck’s going on. And it really sort of became a way of putting stuff in one place. And I didn’t really think about it from the point of view of how Google might index it and how that might generate clicks and search engine optimization. I didn’t think about all that when I was doing it. And frankly, I still don’t think about it as much as I probably should, but I still think you can’t unwind doing good work for people with the marketing side of the equation.

[0:35:58] – Now, there’s a lot of other lawyers, some of them who I’ve known for a long time, who have websites that tout themselves as doing some foodborne illnesses, but most of those firms refer the cases to us. And at any given outbreak, we’ll still represent 80 or 90% of the people who are sick. So, I think the blogging, in many respects the marketing side of that, I didn’t really think about it at the time, but it clearly has an impact.

John Reed [0:36:30] – Yeah, it’s interesting. I admire your approach, which is produce content that educates, assume the intelligence of your audience, write for people and not search engines. And either because you didn’t know better or because the Internet was new, that approach allowed you to produce content in those early days such that you commanded more eyeballs, you got more search results, so you didn’t ever really need to pay attention to pay per click or digital marketing or those types of things.

Bill Marler [0:37:03] – I remember we have a bunch of websites we have aboutEcoli.com and aboutsalmonella.com. I think they’re actually more informative and better than any university site and even the CDC. And we probably put more time, effort, and money into developing them than they have. But the reason why we did that, it was like we had all this information on all the cases we’ve done, all the research we did, and we just said, “Oh gosh, we should put this up on the Internet.” But we were putting that up in like 1999, 2000, and nobody knew that search engines were going to find things like that because, I mean, was it Internet Explorer was around or, you know, AOL, but nobody really understood any of that back in the late ‘90s, early 2000s.

John Reed [0:37:52] – Wow, you have spanned the entire lifetime of Internet Explorer.

Bill Marler [0:37:57] – Yeah, I know. Now there’s Google News. You can search articles and stuff, but back in the day, there was a site called Newsindex.com that I frankly don’t even know if it’s even alive anymore. But it was some guy. Some guy who had figured out how to plug into newspapers websites to be able to search a bunch of different websites simultaneously, which is exactly what Google does. And I remember finally just reaching out to the guy and was like, wow, this is really interesting. You did this. And I was kind of like, oh, that’s kind of cool.

[0:38:37] – And he was like, “Yeah, I just but I’m working my ass off all the time.” He goes, “Do you want to buy it for $500,000?” I’m like, well, that seems like a dumb idea. But in any event, I don’t know if he ever made any money on it. I hope he did because he was years and years ahead of his time.

John Reed [0:38:55] – Let me ask you this. You mentioned in a prior conversation you are well known, if I can say so, probably the elder statesman of this area of practice. You are involved or have been involved with virtually all of the cases, but you also shared with me that you turn down 95% of the cases that come your way.

Bill Marler [0:39:15] – Right.

John Reed [0:39:16] – I’m kind of wondering; I would hope it’s professionalism. It’s being discerning. It’s also knowing what cases will have merit and what won’t. But I’m kind of curious as to what supports that number.

Bill Marler [0:39:27] – Yeah, so it kind of filters back to there’s 48 million Americans that get sick every year, but only a handful of those are ever implicated in a food poisoning outbreak. There’s a lot of people who get these bacteria and viruses, but they’re never really tied to a food product. So, the cases I’m turning down are the cases that I cannot ethically, morally prove on a more likely than not basis that this person’s illness is caused by that company’s product.

[0:40:02] – So there are a lot of times where we will do a lot of investigation. Somebody will have salmonella and they think that it was the chicken that they ate three days before they got sick. And then we’ll find out the genetic fingerprinting on the salmonella and we’ll invest a lot of time, effort, and money, but eventually we look at it and say, you know, this does not meet the more likely than not standard that you need to be able to walk through the courtroom.

[0:40:31] – And I have epidemiologists on staff and I use a lot of experts to make those determinations. If I don’t feel like I can prove them, I tell people, ”I’m really sorry that you were sick, but I cannot legally prove your case.” I’ve had that hard conversation with people whose children have died and had that conversation with people whose kids have kidney failure, or their mom died. I don’t take any of that lightly.

[0:41:04] – And we work hard. It’s not just like we just get rid of cases 95%. I feel it’s important to be able to when I show up on the doorstep of a corporation with a case, they’re done, they’re done, they’re not going to escape. We may disagree about what the case is worth and then litigation may go forward, but from a causation point of view, which is all what this is, most foodborne illness cases, unfortunately, for a variety of epidemiological reasons, are unprovable.

Bill Marler [0:41:39] – And it’s unfortunate, but it’s just a scientific and legal fact.

John Reed [0:41:45] – Well, you know, I have said a lot that a brand is a promise and that involves ethics and it involves professionalism, reputation, all of those things. And I think what I admire is you could have made the choice a long time ago to take that unfortunate death case and just pursue nuisance value, get something. But instead, you’ve made the difficult decision, but I guess we can agree the appropriate decision, the ethical decision, to say no. I instead have to tell the parents the bad news and then be able to have those conversations with the companies, with the defendants when you do have the viable cases.

Bill Marler [0:42:28] – Yeah, absolutely.

John Reed [0:42:30] – Bill, for those who want to learn more about you and the cause and the causes that you are championing, where can we direct them?

Bill Marler [0:42:37] – You know, Billmarler.com gets you directly to me. I blog frequently on Marlerblog.com. I’m the publisher of an online publication. I’m just the publisher. I don’t tell them what to put up. But Foodsafetynews.com has been in operation now for a dozen years. I’ve got four full-time writers that I pay out of my family foundation. I sometimes write op-eds, but it’s a great place for people to know about food safety issues.

[0:43:11] – Whether you need a lawyer, you just want to know about what’s safe and what’s not. It’s a great place to go, but I’m easily found. The Internet makes it pretty easy for you to found nowadays. And I really appreciate the time and your great questions. I always feel like it’s a bit of a therapy session when I talk to a smart guy, so I really appreciate the time.

John Reed [0:43:33] – Well, I’m flattered. I’m flattered. We will be sure to put those links up on our website, in the show notes, so people can access that. I guess I’ll ask you one last question before we go, and that is, are you a food cynic? I mean, how skeptical should we be about the food we eat these days?

Bill Marler [0:43:49] – I know it seems like I should be. Somebody asked me, like, how do you eat? And I said, well, it’s what I don’t eat. I won’t go through it. But if you Google “things Bill Marler doesn’t eat,” it’s gone viral multiple times over the course of the last decade. So just tell your listeners to just Google “what Bill Marler doesn’t eat.” They can find that on their own.

John Reed [0:44:11] – Okay. We’ll actually put that search link up on our website too. So, food poisoning attorney and sticky lawyer Bill Marler of Marler Clark LLP in Seattle. Thank you for spending time with us today. I really enjoyed this conversation.

Bill Marler [0:44:26] – Thank you so much. I appreciate the time, and let’s stay in touch.

John Reed [0:44:30] – And now for my shameless plug. Are you a first-time Sticky Lawyers listener? If so, please subscribe to the podcast and hear other episodes on Apple Podcasts, Google Podcasts, Spotify, and other platforms. If you’re a longtime Sticky Lawyers fan, isn’t it time you gave us a rating and a review? Come on. No, you should. You can do that by visiting stickylawyers.com, where you can also view episode transcripts, see additional information about our fantastic guests, and recommend a standout attorney who might be a future guest. Until next time, I’m John Reed and you’ve been listening to Sticky Lawyers.