With different interpretations offered by opposing legal teams, two E. coli-related lawsuits filed by Seattle lawyer Bill Marler against Salinas-based Tanimura & Antle have been dismissed.

Marler said both cases had merit and were dismissed for reasons not related to the legitimacy of the cases.

Wesley Van Camp, vice president legal and general counsel for Tanimura & Antle, said the cases illustrated the importance of putting up a rigorous legal fight if there is no clear-cut connection between foodborne illnesses and specific fresh produce. She said the government must investigate to find a link between foodborne illness and specific produce items.

 Cases closed

In Pueblo, Colo., Tanimura & Antle had been named as a third-party defendant in an E. coli food contamination lawsuit, Liebnow vs. Boston Enterprises. The trial, which had been set for June 3, ended when the plaintiff dismissed her lawsuit against Tanimura & Antle, according to a release from the company.

Tanimura & Antle’s legal counsel was present at a mediation of the Colorado case and insisted upon dismissal of all claims against the company and defendants with prejudice, Van Camp said. The company was not a party to the settlement and no confidentiality provisions applied to Tanimura & Antle, she said.

Tanimura & Antle said in the release that a report filed by David Acheson, former associate commissioner for foods at the Food and Drug Administration, was pivotal in the case. Though a state epidemiologist had earlier named Tanimura & Antle as the lettuce supplier in the case, Acheson said in his lengthy deposition that public health officials did not conduct a full traceback of romaine lettuce and therefore could not rule out other sources of exposure. Acheson said FDA officials indicated the agency did not believe there was a compelling case to undertake the traceback on romaine lettuce.

“From reviewing the information provided to me I have to conclude that there is nothing to indicate a reasonable level of scientific certainty that romaine lettuce was the source of this cluster, nor is there anything in the information reviewed to indicate with a reasonable degree of scientific (certainty) that the cases in this cluster are explained by a single point of contamination or event in the supply chain where contamination of the romaine is likely to have occurred,” Acheson said in his report.

Marler said May 3 that the Colorado case was ultimately dismissed by agreement of both parties through mediation. He said the law firm presented expert testimony that refuted Acheson’s conclusions. Timothy Jones, medical doctor and expert witness for Marler’s plaintiff, said in a report that the 2009 E. coli outbreak that caused ten cases of illness — including then 10-year old Emily Liebnow of Colorado Pueblo, Colo. Victims of the outbreak were identified in six states, including Colorado, Connecticut, Iowa, Minnesota, Missouri and North Carolina, he said. Jones said that evidence makes it “extremely unlikely” that anything other than a widely distributed food product was the source of multiple cases of illnesses caused by the E. coli O157:H7 strain.

“It is far more likely than not that Emily Liebnow’s infection resulted from consumption of contaminated Romaine lettuce from Tanimura and Antle, served at Giacomo’s restaurant on Sept. 6, 2009,” Jones said in this report.

In California, Marler also filed a motion to dismiss the lawsuit brought by Oroville Bernacki on behalf of his deceased wife Gail Bernacki in the U.S. District Court in Northern California against Tanimura & Antle. Tanimura & Antle’s attorney Gregory Rockwell said the plaintiff would not be able to prove that the E. coli infection resulted from the consumption of the defendant’s product.

Disputing that point, Marler said that the evidence presented in the lawsuit showed a genetic match between the woman’s illness and Tanimura & Antle product in the same time frame. Marler said the case had merit but was dismissed because the elderly plaintiff, a Canadian resident, was in declining health and was not mentally or physically up to litigation.

Marler’s expert witness, John Kobayashi, medical doctor, said in a statement he believed “on a more likely than not basis” that Gail Bernacki was sickened by an E. coli O157:H7 from Tanimura and Antle Romaine in August 2012, not long after the Canadian Food Inspection Agency isolated E. coli O157:H7 in a sample of Tanimura & Antle romaine lettuce and issued a “Health Hazard Alert” notice. She was hospitalized for several weeks and was eventually discharged. The elderly woman died of congestive heart failure in early 2013. One other Canadian resident was sickened in the foodborne illness outbreak.

Despite the fact that there was a recall of Tanimura & Angle lettuce, Van Camp said the Canadian government found no link between Tanimura & Antle’s product and the deceased person.

She said the company hopes to be able to recover its legal costs from the plaintiff in the California case. A hearing is set for July 11, she said.