Wendy's Needs to Jump

Writing occurs when it's ready. I went rather spontaneously to Zion National Park in Southern Utah last weekend to get away from the mundane. Zion Park is magical as is the small town at its entrance, Springdale. With a bit of hiking and effort you find yourself in the middle of beautiful nowhere. Sure, you will pass the varied Europeans along the way (first French, then German, then English) but eventually you will find yourself with just the elements, wind, water and earth. Standing within the great expanse and vista you find inner peace, balance and perspective. Every step takes you closer to the openness you are searching for. People, places, senses, become more acute and take on a more magical meaning.

Fast forward two days to May 6, 2008. We sued Wendys--again--in Federal Court in Salt Lake City. We have in good faith attempted the last several months to resolve two tragic cases of E.coli poisoning without litigation. We've been to mediation twice with no resolution on these two cases.

As you might recall, from my earlier blog and outside news reports, in the summer of 2006, public health officials in Weber County, Utah, became aware of several people who attended a teachers’ conference luncheon that had contracted E. coli O121:H19. The case for all purposes is a slam dunk. So why would Wendys choose to drag this out you may ask? They have the money to settle. They have individuals within it's organization that mean well. They have insurance. They have suppliers who have insurance. So why so long? In the long run, whether everyone involved pays x or x plus three won't amount to anything as far as they are concerned. They can sell more, make more, choose more, have more, create more, more, more, more, more. It's an institution with deep roots that spread. Unfortunately, institutions don't make decisions, people do. One person. Once that person makes up his mind, it will be over. Literally. Maybe not immediately, but it will be the domino that starts the process. Here's the formula, it's rather simple: Have the thought, say it, take the action and don't look back. Jump into the flow of the river that is carving a beautiful landscape. It's easier, smoother and you might just enjoy the ride of what you are creating. Our clients would appreciate it as well.

Mediation and Walden Pond

I spent Thursday and Friday mediating E. coli cases involving Wendys and its supplier. About 35 attorneys, company representatives and 6 layers of insurance showed up in a confined area in Federal Court for the District of Utah. We settled three of the cases and still have two remaining. For our clients that are irreparably injured, it is by far the worst thing they have ever endured. For the insurance companies, producers and retailers of the tainted product, it seems to be more of a business decision. However, I did see in the face of one senior executive real concern for our clients. He appears to have what I call humanity.

Henry David Thoreau was a 27-year-old former schoolteacher when he went to live at Walden Pond in the summer of 1845. His friend Ralph Waldo Emerson, who had recently purchased 14 wooded acres of on the northwestern shore of Walden Pond, agreed to let the young writer conduct his "experiment in simplicity" there. Henry built a small cabin next to the large pond and spent a couple of years thinking about what was important. He sought balance. I suspect he took many deep breaths and listened to the silence.

Being in a place where there are over 35 lawyers trying to make a good decision is not a Walden experience. It is however, a necessary step to help seriously injured people. I suspect Thoreau spent a few stormy nights in his small one-room cabin. It allowed him to appreciate the open expanse of thought and the promise of renewal. Although I am disappointed not all of our cases settled, I am hopeful that as the main decision makers have now had time to step outside the small spaces that they occupied last week, they now have an opportunity to find perspective and return with a new expanse of thought to settle the storm that has occurred in the lives of our clients.

Omission is Commission

This is an open letter to the public-at-large. I hope this may help families particularly in Utah and other Western States like Idaho, Wyoming, Colorado, Nevada, Arizona and New Mexico, where E. coli has been prevalent recently and has injured and even caused death.

E. coli has dramatic effects and unfortunately, it appears to be again on the rise after a downward trend. I have been involved with E.coli cases involving Dole, Wendy's, and other companies serving hamburger, spinach and lettuce. It's impact is devastating. Some may read this and believe that I'm just an attorney out to make a buck. While it is true this is what I do for a living and I do make money suing companies that harm my client's, making money for myself and my client's is not why I do it. I do it to help stop the spread of this leading cause of foodborne illness. Companies will change when their pocketbooks are hurt and they start to see the faces and families that they hurt. Their insurers will do likewise.

I live in the conservative State of Utah. Many residents of the West are conservative, strong willed and independent, all great qualities. I commonly am confronted with the notion that suing is inherently evil or immoral. Some have even suggested that the loss of life or permanent damage caused by an illness like E. coli, is even God's will and that the best thing to do, is move on and not involve themselves in a lawsuit. I truly try to appreciate and respect all points of points of view and certainly being non-litigious is a valid point of view. I have even written about using litigation as a last resort. I feel for families confronted with such great loss and their willingness to forgive. But there is a difference between forgiving and forgetting. You don't have to hate a company to pressure it to change. On the other hand, just forgetting about it, in my opinion, is wrong.

Unfortunately, the real world is not fair. The star money players in agri-business don't even play in the same arena as you and I. They are surrounded with legal armor and quite frankly, don't want you to show up, they'd just rather focus on market share and making money. When something that can literally kill is allowed to continue because agri-business has not cleaned up it's act, it is not fair. But doing nothing and allowing it to happen becomes part of the problem. If you don't want to make money after you or a family member has gone through the suffering of E. coli and perhaps HUS, donate the money you will potentially receive to a hospital, to a charity that helps survivors, or create a scholarship fund for a deserving medical student. In other words, do something good! Doing nothing is not acceptable. What we have been waiting for is you. Be the difference. Confronting the producers and sellers of E. coli tainted food is the right thing to do, not only for you, but others that need your example of doing. That's why, I would argue in great measure, that we saw a downward trend in the 1990's. Clients and their attorneys such as the pioneering law firm Marler Clark were and still are taking it to the businesses that cause the problem. Agri-business started to clean up their act. They started to get the message. Rational inaction will not win this fight. We need you. If you were hurt by E. coli, don't let it continue to hurt by doing nothing.

Some of What I do

When I mentioned I was knee deep in e-coli, this is an article from the Deseret News that explains why:

Originally posted on August 13, 2006

'Probable source' is iceberg lettuce at N. Ogden eatery
By Lois M. CollinsDeseret Morning News
Wendy's restaurant chain is being sued by a Weber County family after the Weber-Morgan Health Department identified a North Ogden Wendy's as the probable link in four confirmed E. coli infections in June.
Seattle law firm Marler Clark and Salt Lake attorney Todd Gardner filed the lawsuit Friday in Weber County District Court on behalf of William and J. Corey Cohron and their two sons.
According to William Marler, the complaint seeks "compensation for the family's significant medical-related expenses, economic losses, pain and suffering and emotional distress."
On Aug. 7 the Weber Morgan Health Department said that four people had contracted E. coli, three of them developing the more severe hemolytic uremic syndrome (HUS). Health officials said the "probable source" was iceberg lettuce served between June 27 and June 30 by the Wendy's restaurant at 2500 N. 400 East in North Ogden. One of the four cases was determined to be a secondary transmission from someone who reported being infected during a conference in which two of the confirmed cases may have gotten the infection. The Wendy's restaurant was a caterer for the conference.The complaint filed by Marler Clark says that Corey Cohron ate a Wendy's salad at the conference and later became ill with symptoms of E. coli infection, including diarrhea. Other family members subsequently developed symptoms as well, most of them not requiring medical treatment. But Wil Cohron, 7, suffered severe infection and was taken to an emergency room July 12. He was in the hospital for two days. He later was rehospitalized and tested positive for E. coli.Three of the four confirmed cases developed HUS, according to Weber-Morgan health officials.No spokesman for Wendy's corporate office returned calls from the Deseret Morning News Friday and Wendy's attorney was not available to comment.E-mail: lois@desnews.com

Here's a CNN article as well: http://money.cnn.com/2006/09/22/news/spinach/index.htm