The Interview: Bill Marler

In the lead-up to the 3-A SSI 2025 Summit on Hygienic Design, 3-A SSI talked to prominent food safety and foodborne illness lawyer Bill Marler, who will deliver a keynote presentation at the event.

Marler has represented clients in some of the most high-profile foodborne illness cases in the United States, including the 1993 Jack in the Box E. coli outbreak, the 2006 Dole spinach E. coli outbreak, the 2011 Listeria outbreak linked to cantaloupes from Jensen Farms and the 2018 Romaine E. coli outbreak.

Marler has also been a strong advocate for food safety reform. He has worked with government agencies and industry leaders to improve food safety standards and to prevent future outbreaks. His work has been profiled in the book “Poisoned” and in the Netflix documentary of the same name.

To see Marler’s presentation, register to attend the 3-A SSI 2025 Summit on Hygienic Design, happening May 6 to 8 in Chicago. The event features two full days of education to expand participants’ hygienic design expertise.

3-A SSI: Thank you for your time and for speaking at our event. A lot of people are very excited to hear your talk.

Bill Marler: Sure, absolutely.

From your perspective, what have you seen in the way of equipment design failures contributing to foodborne illness? And how often does it happen?

That's a good question. It's always hard in a legal context to determine whether or not it's a design failure when one of these outbreaks happen, mostly thinking about Listeria outbreaks linked to biofilms in inadequately cleaned machinery or inadequately built machinery that makes it difficult to clean. That's where I think the issue has primarily surfaced.

One really tragic case was a Listeria outbreak that killed three people and sickened another six or so in Washington state. That's just two years ago. It was an ice cream or a milkshake machine that was very difficult to clean the tubing. The fight was between the restaurant and the manufacturer of the equipment – whether or not there was a design flaw that made it difficult to clean.

I don't necessarily get into that fight. You know, did the restaurant ice cream cause my client to get sick with listeriosis and die? That's the fight that I have.

It becomes an issue for [restaurants and the manufacturers of equipment] fighting between each other as to who's more at fault for the whole thing to happen. That's not something that I wind up doing. I just prove that there was an illness. I don't necessarily need to prove exactly how the thing happened.

Ultimately, I always feel it's great if we can learn exactly what the defect was that caused the problem, but you know that doesn't necessarily always come out in the litigation.

I think there's always going to be a kind of a rub between failing to clean the equipment like they're supposed to or a design defect that made it difficult to clean the equipment, and I can see that fight happening all the time.

Ultimately, I always feel it's great if we can learn exactly what the defect was that caused the problem, but you know that doesn't necessarily always come out in the litigation.

You do a lot of work and advocacy for stronger food safety regulations. How have you seen the regulatory landscape around equipment design evolve, and what role do you think industry standards like the 3-A Sanitary Standards should play in shaping them?

This might sound a little odd coming for me, but I think manufacturers of equipment have an incentive to make equipment that does the intended purpose and that doesn't create more problems than it was supposed to solve. I'm not sure regulation from a government would actually be the way that this should be done.

But I do think standards within industries and, in a sense, self-policing and using best practices is really the way to go.

I certainly can see government saying E. coli O157:H7 is an adulterant or government decisions on where you can grow lettuce in relationship to cattle feed lots. I see that's where government has a role. I'm not sure they have a role in how to make machinery.

Looking forward, what are the emerging food safety challenges that you could see an equipment solution to?

One thing that a wise epidemiologist once told me... it came up in the context of a significant downturn in E. coli cases linked to hamburger...and he said, well, you don't really know for a long time whether or not it's real or it's just something temporary. You know, we hope that it's real but you don't know it's real until you have a longer period of time to look at it.

And then the other thing that happens, too, is that bacteria and viruses, they morph and change over time, and some become more or less virulent. Manufacturers need to be paying attention to changes in the bacteria and viruses that they're trying to create equipment for and make sure that the equipment can be cleaned properly.

Listeria wasn't really even something on people's radar screen until the 1980s and early 1990s. I think that if there's a challenge for the industry, it's always going to be how to stay one step ahead of these pathogens that are designed to kill us or make us sick. I think that's probably going to be the challenge as these bacteria and viruses morph and grow. Because that's what they do. How do you stay ahead of it?

We’ve seen a rise in 3-A Sanitary Standards being specified in RFPs. Processors are looking for a way to make their food processing bulletproof. Is that possible?

That is always the difficult question for manufacturers of a processing piece of equipment: How do you make it bulletproof?

Knowing it's a balance between that and cost, and it's a balance between that and doing the manufacturing that it was intended to do and to make it such that the product that comes out of it is less likely to be [contaminated].

If there's E. coli O157 on a bunch of trim and it goes into a grinding operation, it's not the grinder’s problem, unless it's shown that there was a clean step in between and it wasn't cleaned properly or something. But when there's a massive outbreak of E. coli or salmonella, it's generally not the manufacturer of the equipment's problem. It's because the product came in contaminated. I've been involved in situations where lettuce or spinach was all processed one day, and that was the day that it was likely you contaminated a lot of the spinach or lettuce that came into the facility.

It was just recently there was that onion [incident] involving Taylor Farms processing. They found not the outbreak strain of E.coli, but another strain of E. coli on the equipment.

It certainly is possible that it could be equipment problems -- kind of like Listeria and deli slicers have that problem sometimes when they're not thoroughly cleaned. But in my experience, the E. coli, salmonella, shigella cases tend to be contaminated product. The maker of the piece of equipment that is being utilized has very little control over the Listeria.

Sometimes, designs of these pieces of equipment, did they really need to have that extra O-ring? Or does it really need to have this crevice, or should they have made it a little different way? That's a bigger challenge. Then you add on top of that the way these bacteria morph over time and evolve over time that some of them become more virulent and become more problematic.

That's interesting. So, a filter or a seal that might have been adequate several years back, may no longer work, right?

Exactly.

There's a lot of the human factor involved in this as well. Many food processors are investing in a culture of food safety. Can that mitigate liability?

The short answer is no. The longer answer is a little bit. It can. For example, if you take the Peanut Corporation of America fiasco where they went to jail for 28 years, or punitive damages where, like in the recent Boar’s Head case, where their plant was such a mess. They're exposed both from a criminal point of view and they're exposed to punitive damages.

The egregious nature of what occurred at those plants – if you take that out of the equation, there still could be illnesses, but then they wouldn't be exposed to punitive damages or criminal liability. People ask me this question all the time: If we do a really, really, really good job and we do all the things right, we go to all these conferences and we believe in food safety and an outbreak happens, does that save us?

No, it doesn't save you from dealing with the outbreak fallout of what happened to the victims. It's likely that if you believe in all these things and you're doing all these things, if there is a problem, it's likely that the problem is going to be a lot smaller, but it's not going to mean that you get a get out of jail free card. But you are going to avoid punitive damages and criminal liability, which could happen.

What can food processors do to reduce the likelihood that an outbreak will prompt a lawsuit – or that you're going to show up on their doorstep?

If an outbreak happens and the product is linked to illnesses, it's pretty hard for a manufacturer to get away with saying it wasn't us -- and especially nowadays with whole genome sequencing. But again, if you're doing all the right things, if you're paying attention to all the latest good stuff and you're trying to implement all of the right things and you have the right food safety culture, one, it's likely doing all those things that you're less likely to have a problem and then, if it does happen, it's less likely to be really bad.

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