Unwonk - Episode 12: Unwholesome

We learn about moderately dramatic way to get kicked out of a casino and talk to nationally recognized food safety lawyer and advocate, Bill Marler.

Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.

Many thanks to our guest Bill Marler of Marler Clark, The Food Safety Law Firm! You can also follow him on Twitter @bmarler.

Please enjoy the links to additional information relating to the questions on this episode - for people new to Unwonk, these quotes and links may not make much sense until you actually listen to the episode:

"Part of the secret of success in life is to eat what you like and let the food fight it out inside." - Mark Twain [or, like many good Mark Twain quotes, likely not Mark Twain.]

[Episode Keywords: Oyster Stew, Bad Tuna Burger, Foodborne Illness, Wholesomeness, McDonald's Number Three]

Episode Transcript


Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos. 

As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation. 

Hey, everybody, head’s up that if you have a weak stomach, listen to this episode at your own peril - question of the day deals with food poisoning, so we bring up unsavory things like throwing up, eating oyster stew, and drinking dunkin’ donuts coffee. You’ve been warned.

On this episode of Unwonk, we learn

  • A moderately dramatic way to get kicked out of a casino, and
  • we talk to nationally recognized food safety lawyer and advocate, bill marler.

This is Unwonk. We respond to your legal questions with relevant and useful information. If you would like to submit a question, please visit our site at Unwonk.com.

When you’re there, you can also find where to follow us on twitter, facebook, and all the social things. And make sure to tell your friends about us. Because super friends are super special.

You can also check out our ask a lawyer column in deadspin by clicking on the banner at our site or going to Unwonk.com/deadspin.

Even though the  general information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who insists on calling it expresso - I mean, there’s a starbucks every 40 feet by federal law - you really should know how to say it by now, lady from the coffee bar this morning.

And now, today’s question.

I was on vacation in Las Vegas - staying at the Paris casino, because the Eiffel tower and all that - and went to a buffet at another casino with my friends for brunch. Flash forward to me killing it at the blackjack tables at yet another casino - the first good streak that weekend - and before I know it, I’m throwing up on myself, the blackjack table, and I'm sure a few fellow gamblers. The pit boss came over and asked me to leave because he thought I was drunk. But, I don't drink. I'm pretty"I took my husband to a really nice restaurant for our anniversary a few weeks ago. I don't know much about wine so they sent the "wine person" over to suggest something, and we went with the red that he was pushing. It's not that it was spoiled or anything - it was just completely different from how he described it and neither of us liked it at all. The bottle cost about $100. After some back and forth, I begrudgingly paid for it because I didn't want to make a scene (my husband hates confrontation - won't even send bad food back if it's overcooked). Wasn't the restaurant legally required to guarantee the wine to match what the wine person described?" sure I got food poisoning from that buffet earlier in the day. I just went back to the hotel room and slept it off. Can I sue the casino that gave me food poisoning? Not only did it kill my winning streak, it was really embarrassing. 

Jeff. I’m sorry. The worst. Foodborne illness is the worst. At least it wasn’t fatal. As our guest today   - one of the leading food safety attorneys - will point out later in this episode, in the US, it’s estimated that 48 million people get sick in the US every year from foodborne disease. The Centers for Disease Control and Prevention further estimates that every year in the US, 128,000 are hospitalized, and 3,000 die of foodborne diseases. 

The World Health Organization estimates that on a global level, 582 million people get sick and 351,000 die of foodborne diseases.

And, as we mentioned on our last episode, you’re the successful product of an uninterrupted chain of creatures that has successfully eaten food that did not kill them going back millions of years. So, don’t let the open vat of hollandaise sauce sitting under a heat lamp bring you down.

Despite a solid lack of understanding the world of microbes prior to the 19th century, law around tainted food goes back a long time - it wasn’t long ago that Louis Leaky unearthed a sign dating back to the cretacious period that said: “velociraptors must wash claws before returning to work”

Wait, that’s a lie.

What IS true is that One of the earliest criminal statutes in the western world on the topic dates back to the 1200’s, in England’s Assize of Bread and Ale, which governed many aspects of the sale of bread and ale, including wholesomeness. 

And that’s a word that stuck around for a long time in this field: wholesomeness, which basically meant, you couldn’t water something down (like beer or milk) or adulter something with an unwholesome substance just to bulk it up. Later, much later, in the US, when food was sold to a customer, it came with an implied warranty of wholesomeness. Normally now, it’s an implied warranty of merchantability, but some places still use “wholesome.”

I remember that word “wholesome” from commercials when I was a kid and associated it with smiling mothers handing their perfect TV kids a cold glass of milk, and always thought it meant healthy. What is really meant was “Hey, here’s some milk, and there’s no weird crap in it. Except, of course, for hormonal secretions from a cow.” Just look at the root: “whole,” meaning the whole thing is what you think it is. Arsenic can be wholesome, as long as is it’s 100% pure arsenic.

But people have always understood that certain foods can make you sick. Let’s time travel to February 1895 and join two ladies on a grand day out: Mrs. Thompson and Mrs. Sheffer - 19th BFFs - spent the morning shopping downtown Chicago. Having worked up an appetite sorting through frocks, coats, and capes, they stopped by the Boston Oyster House and each ordered a light lunch consisting of a dairy-based oyster stew, which is what sophisticated urban ladies did at the time. Mrs. Thompson plowed through her bivalve soup, noting a “brassy taste.” Mrs. Sheffer didn’t finish, noting the green oysters remaining in the bowl which the waiter said were just fine. Right after they left, they both began to feel sick, apparently went back in - bussers at the time, it seems, were very slow to clear tables - pocketed a couple oysters and showed them to the doctor across the street, who was free and available to see patients without a one month advance notice because too-big-to-fail HMO companies hadn’t been invented yet. 

Both of them were “in great agony and pain; had a burning sensation and hot feeling; sick and faint.” The doctor induced vomiting for both of them - which is what sophisticated urbanite ladies did at the time. Mrs. Thompson perked right up. Mrs. Sheffer was better enough to start home, but then things got much, much worse. On the street car, going home, Mrs. Sheffer became bloated, and her clothes had to be opened. Remember, this is 1895 - a woman with open clothes on a streetcar was a social scar for life - it is not what sophistciated urbanite ladies did at the time. She was removed from the street car and then taken to a drug store. After sitting at the drug store for awhile, she was finally taken home, where she was bedridden for three weeks. And she apparently never recovered from this sickness. 

This was the root of a court case called Sheppard v. Willoughby which made it all the way to the supreme court of Illinois. And, surprisingly, the legal foundation isn’t really about food poisoning - it’s about the burden of proof required by a plaintiff to demonstrate liability of a restaurant proprietor versus an innkeeper (keep in mind that standalone restaurants were still relatively new those days). But, it’s a colorful illustration of the same problem about food we’ve had for years.

In a Shyamalan-type twist, Ms. Sheffer - who was the plaintiff here - was suing not because of bad oysters, but alleged copper poisoning due to the oyster stew being cooked in a certain copper pot. She lost, by the way, because she failed to prove her case. Lost THREE times - trial court, appelate court, and supreme court. Ouch. This may possibly be due in part to the fact that 800 to 900 servings of oyster stew were doled out at the Boston Oyster House during the hour they were there. And - presumably - nobody else got sick. The details are lost to time, or haven’t been scanned and put online yet.

Here are the lessons I get from Mrs. Sheffer’s day out:

  • Don’t go to restaurants that are - or imply they are from Boston - Boston Market, Uno Chicago Grill (headquartered in Boston), and, of course, the national plague on coffee known as Dunkin’ Donuts. This is the logical conclusion. And this doesn’t apply to Giacomo's restaurant in the North End, which is delicious.
  • Perhaps a cream-based oyster stew isn’t the most refreshing or appetizing thing to be eating... ever. Though, in the 19th century, oysters were a common, if not daily, protein, for those living in areas of the country that could get them. They were abundant, cheap, and nutritious. For a brilliant read on the entwined history of oysters of New York City, check out The Big Oyster, by Mark Kurlansky. 
  • If something doesn’t taste right, don’t eat it. I imagine in those times, people would have been even more attuned to their senses of smell and taste to be able to discern between something good and bad. And, though a “brassy” taste doesn’t immediately scream “there be poison here,” it certainly would have me opting for the complimentary bread basket, instead.

This reminds of another case in Lynn, Massachusetts, which, not surprisingly, is a stone’s throw from Boston. A guy described as a healthy 21-year-old went to McDonald’s and ordered three - THREE - quarter pounders with cheese. That’s right, he didn’t order a Number Three - which is the universal McDonald’s menu number for a quarter pounder with cheese, fries, and a soda - he ordered three quarter pounders with cheese. Or maybe he ordered a number three and said, you know what, instead of the soda, I’ll sub a quarter pounder with cheese, and instead of the fries… just sub me another quarter pounder with cheese. 

Not surprisingly, the young man is described as “being familiar with the taste of Quarter Pounders.” Which is hard to believe since he ordered more than Zero of them.
Here’s where the taste part comes in. He described the first quarter pounder with cheese as tasting “funny” and the third quarter pounder with cheese as tasting “funny.” The second, apparently, was the sweet spot, or the only one not horribly ridden with bacteria, because he got violently ill very fast, the speed of which his doctor testified in court was accelerated because - and I quote the court here - “the amount of cheeseburgers eaten.” So let that be a lesson - lots of cheeseburgers will put some weight on you, and will give you the campylobacter bacteria faster than if you just had one cheeseburger.

Further on this, the court noted that the food was found to be - ready for it - unwholesome - at least in part because the cheeseburgers tasted “funny.” In other cases in Massachusetts the same finding of unwholesomeness was sustained with descriptions of food as “just not right” or “peculiar” or even “wicked sketchy.” I made that last one up. Keep in mind, that’s just one component - other evidence likely needs to be present to really state a claim.
Lesson is - if it tastes, looks, feels, or smells funny, don’t eat it.

This may not surprise you, but I have some personal experience in this area that we’ll use as an example. Back when I was a baby lawyer working at a law firm, I went to lunch with a group of people. Our office was in a well-known office building sittin about a very well-known train terminal in Manhattan. In that train terminal was a very well-known seafood restaurant - some might call it an institution, with a focus on oysters. In order to avoid liability, I’m going to use a very generic name for the restaurant for this story: We’ll call it “The Clam Table.”

Anyway, back then, the Clam Table had a lunch special where you’d get to select one of a handful of main courses, get a side and then a beverage for $10 or something like that. We sat at one of the horseshoe-shaped lunch counters, ate lunch, paid, took an escalator to another escalator and then an elevator, back to our jobs. Not much later, I was on the phone with a client when I looked down and noticed that my hand was bright red. Not just flushed, but who-injected-cranberry-juice-under-my-skin red. I looked at my other hand. Red. That’s when I noticed a pounding in my temples and a tingling from head-to-toe. I distinctly remember telling the client, “Stephanie, I have to go. I’m red,” and hanging up the phone. 

I ran to the restroom and looked in the mirror. My entire face was bright red, too. Stepping out of the restroom, a paralegal looked at me, and dropped a folder she was carrying as she put her hands to her mouth to suppress a shriek. I’m not kidding. I ran back to my desk and called my friend. He was an ER doctor. While we were on the phone, my throat started to get tight and my breathing turned to light wheezing. He asked me what I ate - Tuna burger. He told me to get in a cab - forget an ambulance - and head straight to the ER at Tisch hospital on 1st Avenue. Partially because it was kind of close, but also because it housed the poison control center for all of New York City. Clever. 

Hey - Remember in Episode 4 when we said you should have a criminal attorney in your phone book at all times? Well, you should also have an ER doctor in your phone at all times. And your nana - nana should be in your phone, as well.

A friend from work took me downstairs to a cab, and we rushed to the ER. I walked up to the intake window, and the woman behind it just held up her right hand, index finger extended at my tomato red face, and said two words: “Tuna burger.” I nodded. She gave my friend some paperwork and minutes later, I was on a gurney, hooked up to benadryl and who-knows-what-else. I learned that I had ingested a parasite call scombroids, noted for thriving in certain darker fleshed fish that is, essentially, rotting because it hasn’t been properly taken care of, including mahi mahi and… tuna. Because poison control was run out of the same hospital, I could see a white board with different restaurant and hospital names all over the city. Half of the board was occupied by a main heading that said “Clam Table” with hashmark tallies under hospital names below that. Each hashmark was some idiot like me who thought a “tuna burger” was a good idea. 

I called the Clam Table the next day. They offered me a free meal. A free meal from a place that had just sent me to the hospital. I declined. And never ate at the Clam Table again. Or had a tuna burger again. Because there’s a reason the tuna in a tuna burger was used for a tuna burger.

Why did I bring this story up? Because I like talking about myself? Yes. But also, in my case there are a few factors that would be very helpful if someone really wanted to sue - or threaten to sue - a restaurant: Symptoms hit in less than an hour, and I was whisked off to the one place in New York City where I could witness at least 20 other cases of the same thing from the restaurant I just ate at being added to the wall before my eyes. Pretty immediate. 

So, back to your question…

But let’s ask someone who really knows what he’s talking about. I have on the line Bill Marler, managing partner of Marler Clark, The Food Safety Law Firm.

Unwonk:  Before we get into the question we will ask can you tell us a little bit about your legal practice.

Bill:  Sure. Since 1993 when the Jack in the Box E. coli outbreak hit the western United States my practice is then focused on food borne illness cases. I represent victims of food borne illnesses and I’ve been involved in every major food borne illness outbreak really since 1993. 

Unwonk:  You saw the question we got, we have a guy who you know, when ate at the casino buffet for brunch had an incident on the floor, was escorted off the floor and kind of went back to his hotel and sleep that off but then decided he was really embarrassed by what happened. Do you think he has a case based on the facts that we received?

Bill:  It’s not a case I would take. And I’ll explain why. You know, not because I’m sure the gentleman was sick and you know, and certainly could have been the food he consumed. But it could also be the food that he consumed you know a days or not, if not weeks before he got sick. Most people incorrectly think that it’s the last thing that they ate that made them sick and that’s just simply not the case. If you look at the major food borne viruses and bacteria, the incubation duration period so that the time between you ingest the food product and when you first become sick can be really a short of few hours depending upon the bug or the pathogen or it could be weeks. The hysteria has the incubation period of three to seventy days and yeah what you ate seventy days ago, I’m not sure I can remember what I ate three days ago. So it’s really comes down to a problem of being prove that it was the steak or he ate that day or something he ate three, four, five days or weeks earlier.

Unwonk:  What could this person have done to maybe gotten more facts favorable to him and in general someone get sick and they think it was a food borne illness related thing what should they do to document things?

Bill:  Well first of all you know a lot of people get sick from food borne illness so the CDC estimates about 48 million Americans get sick every year from the food borne illness. But the number of people who are you know, cultured positive that are link to a particular food item in a teeny tiny fraction of that number. I mean we’re talking you know, hundreds of thousands of people out of nearly 50 million. So you know, in order to really sort of document a case, and I always tell clients this a building food borne illness case is like building a house made out of bricks. It’s always great to have all the bricks but the house will still stand, the case still stand if you’re missing a few bricks. But if you’re missing all the bricks you don’t have a house. In a food borne illness context which you look at is it’s whether a positive culture either a blood or a stool culture which when you’ve got medical treatment because they need to know what bacteria or a virus is and that gives you at least the time frame of being able to say well if it was E. coli and the incubation period is three to four days, you’re really looking at something you’re expose to three to four days before you became sick so that helps you sort of pin point it. The most important thing usually and trying to prove a case is, are there more than just you getting sick. Is there a multiple people and you can triangulate back on to a restaurant or a food item you’re much more able to figure out what likely source of your illness is. So really its two things, one is having medical treatment that allows for discernment of what bacteria or virus made you sick. And secondly are there other people that are sick in the same time frame with the same symptoms that consume product at the same place. 

Unwonk:  And is that… and I told the story about this earlier in this episode a while back I worked in New York. I was unwittingly paired in a battle against a bad tuna burger and I started getting my skin turn red, I started whizzing, called my friend he was a doctor and he told me to go specifically to the hospital that happened to be the poison control center of New York City. And I hadn’t saved any of the burger and they didn’t really diagnose, they didn’t take blood samples but there was a giant white board where they were keeping track. And I can see the name of the restaurant where I ate. And they were keeping [inaudible] around the hospital, around the city and they were about twenty-six people who also had very bad taste in food because they also have the tuna burger. I now know why tuna meat ends up in a tuna burger and not to order tuna burgers.

Bill:  Exactly.

Unwonk:  Because there was no physical evidence. If you have a large enough kind of the sample size of people with the same symptoms from the same restaurant at the same time, is that something that might be sufficient?

Bill:  If you use my brick analogy you know, maybe twenty-five people all with you know, similar symptoms to scombroid poisoning and they all ate tuna burgers you know, if it walks like a duck, it quacks like a duck, it’s more likely not a duck. So again, it’s all about being able to you know, triangulate back on to a food item or restaurant and you know, in the situation you describe there’d be no question it should be able to get a medical epidemiologist to say all these people who had similar symptoms, they look like scombroid poisoning and they all ate a product tuna that is you know, likely source and you know, that answers the question of causation.

Unwonk:  Okay. One final question, are buffets and things like warm food tables… yeah you seen the whole foods even at whole foods it just looks so sketchy to me. The food had been sitting out for hours are those…

Bill:  Right.

Unwonk:  Are those more prone to cases of food borne illness or is that just really a perception?

Bill:  Well there… the sort of answer is they are… since most food borne illnesses are never figured out. A lot of things that look sketchy are probably causing food borne illnesses. And a places that you know have risk of it’s a mistake made if the temperature is not kept properly or you know, either they’re too high or too low you know it’s certainly can cause difficulties. Deli’s you know, salad bars you know, are notorious for you know, having mistakes made and you know over the course of twenty-two years I’ve had lots of outbreaks linked to temperature abuse issues or cross contamination issues at salad bars and deli. 

Unwonk:  Interesting, well as long as bacon is immune from that I think I’m okay with it.

Bill:  Well you know, I have to tell you in twenty-two years I’ve never had a case where someone got sick from eating bacon or at least if they did get sick it was probably from eating too much bacon.

Unwonk:  I don’t think that phrase exist too much bacon but I appreciate that. Well Bill thank you for your input. And thanks for joining us. We really appreciate talking with you.

Bill:  My pleasure, thank you very much.

And I think you have the answer Jeff. As Bill alluded to, based solely on what you said, you may not have enough bricks to build a case. But look at it this way: If you can’t go back to your favorite casino because of the incident, save up the money you would have spent, fly to Paris, France, and see the real Eiffel tower. Any other way is kinda tacky.

Thanks for listening to this episode of Unwonk. And thank you again to Bill Marler of Marler Clark.

Please visit our site at Unwonk.com to ask your questions, and for lots of bonus material about the topics on today’s episode. You can also find us on twitter, and facebook, pinterest [kidding about that one] and you can also - totally your choice - tell everyone you know to listen and subscribe.

And don’t forget check out our deadspin column, updating every couple-ish weeks. 

On the next episode, we learn:

  • Whether there really is a limit on bacon consumption in one sitting;
  • A list the 2 best outdoor hot food bars to visit in nevada in the summer; and
  • A guide to fake landmarks in las vegas, aside from the fake eiffel tower, fake new york oe and that fake pyramid thing. Wait, that’s it? Nevermind on that. Everything else in las vegas is 100% authentic.