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Spokane, Washington  Est. May 19, 1883

Jack In The Box Ignored Food Safety Regulations, Court Documents Say

Elaine Porterfield And Adam Berliant Mcclatchy News Service

The Jack in the Box fast-food chain knew about but disregarded Washington state laws that would have prevented the deadly 1993 outbreak of E. coli food poisoning, according to recently filed court documents.

Three Washington children died and 600 others were sickened due to poisoning from E. coli O157:H7 served in undercooked Jack in the Box hamburgers.

Documents filed in U.S. District Court in Seattle by attorneys for those injured show that the company knew about but chose not to follow safe-cooking standards that would have killed the E. coli bacteria from their hamburger patties.

The company’s reason: “If patties are cooked longer … they tend to become tough.” That comment appeared in a company response to a store shift leader who was concerned that cooking to the company’s standards left burgers under-done. That memo, obtained from company headquarters by plaintiffs’ attorneys, was written four months before the epidemic.

Had the company followed state regulations, which mandated that hamburgers be cooked to an internal temperature of 155 degrees, the epidemic would have been prevented, health experts say. The state law superseded a federal guideline at the time of 140 degrees.

“Either they didn’t believe in science, or they didn’t didn’t read the literature,” said Bert Bartleson, technical expert for the state Health Department’s food program. “If they followed the standards … no one would have gotten sick.”

Bartleson led the Health Department’s investigation of Jack in the Box during the epidemic, and in the process, personally reviewed many of the documents that also appear in the court files.

After he and other state health officials linked the epidemic to Jack in the Box burgers, top company executives told the public, media, lawmakers and their own shareholders that they were never properly told about the state’s cooking requirements.

But according to numerous documents from their own files in their San Diego headquarters - and included in court documents - Jack in the Box had been warned of tainted beef, undercooked burgers and improper cooking procedures as much as 10 months before the outbreak.

Company officials then, and now, say they did nothing wrong.

“In 1992 we were following federal food codes, putting us in compliance,” said Karen Bachmann, spokeswoman for Foodmaker, the parent company of Jack in the Box.

Attorneys representing those who were injured in the E. coli epidemic disagree.

“Foodmaker made a conscious decision to disregard Washington law,” one of the attorneys - William Marler of Seattle - wrote in a declaration to the court filed in his and related cases. He also asserted the company showed “total disregard for the health of its customers.”

Diana Nole of Gig Harbor, whose 2-year-old Michael died in the epidemic, agreed. The Nole family settled with Foodmaker for $1.3 million last year.

“These guys had a responsibility to the public to provide safe, healthy food,” Nole said. “It just disgusts me that they can play with people’s lives like that.”

Foodmaker officials said this week they would not respond to specific accusations from attorneys, although they did offer some comment.

“We don’t want try the case in the newspaper,” said spokesman Bachmann.

She said those suing her company filed the documents in court to put pressure on her company to increase settlements.

“We were willing to negotiate in the millions of dollars,” she said. “But they were talking in the hundreds of millions.”

Jack in the Box already has settled lawsuits with a number of plaintiffs, including the Noles and the families of two other Washington children who died in the epidemic - Celina Shribbs of Mountlake Terrace and Riley Detwiler of Bellingham.

Those cases were settled before many of the documents obtained by attorneys in the discovery process were filed in U.S. District Court. Judge Thomas Zilly is presiding over many of the 25 still-pending lawsuits, some of which are class actions. The documents, which include internal company records, test records and sworn statements by Foodmaker employees, show:

Months before the epidemic, Foodmaker was notified by health departments of a new cooking standard mandated by the state, which required burgers to be cooked to 155 degrees. Many company managers and scientists also were issued and discussed a May 1, 1992, statement from the Bremerton-Kitsap County Health District detailing the new regulations.

Foodmaker was aware of consumer and employee complaints about undercooked meat as much as six months before the outbreak. Its corporate response to these complaints was to not make any changes, documents show.

Vons Companies Inc., which supplied hamburger to Foodmaker, repeatedly provided ground beef with E. coli levels that exceeded Foodmaker’s standards. Vons’ microbiological tests, which indicated only general levels of the bacteria - not specifically the deadly O157:H7 strain - show half of Vons’ deliveries in the five months before the epidemic violated quality standards set in its contract with Foodmaker.

Documents indicate Vons identified a higher-than-usual level of general E. coli contamination in the batch of hamburger that caused the epidemic. The batch was produced in Nov. 19, 1992, more than a month before Jack in the Box began selling the burgers. According to depositions of Vons employees, Vons never notified Foodmaker of the E. coli level, as their contract required.

Hamburger patties from the tainted shipment were sent to Jack in the Box restaurants throughout the West. By mid-January, the epidemic became apparent to doctors and health officials in Washington. Within a week, the source was determined to be Jack in the Box, and more than 200,000 burgers were voluntarily recalled from Jack in the Box restaurants.

At a press conference on Jan. 21, 1993, Foodmaker president Robert Nugent publicly blamed Vons for the E. coli epidemic because the huge grocery store chain supplied Jack in the Box with their hamburger.

Foodmaker has sued Vons in Los Angeles Superior Court, claiming it was responsible for the outbreak. The case is pending.

Vons officials said they did not want to comment on the lawsuits or on the documents included in court files.

Experts say hamburgers, however contaminated, would be safe to eat if cooked to 155 degrees.

Washington regulations, which went into effect May 1, 1992, required all restaurants to meet this guideline.

Among the warnings about the new regulation was one sent to Foodmaker by the Bremerton-Kitsap County Health District on the day the regulation went into effect - a memo that was the subject of discussion a few weeks later at company headquarters.

According to depositions from Foodmaker employees, top managers discussed the new regulation at a May 21, 1992, staff meeting concerned with research and food quality - seven months before the outbreak.

Mary Beth Schaubel, a food technologist for Foodmaker, said in a sworn deposition that the Kitsap statement was handed out at the meeting and discussed. In attendance were Ken Dunkley, Foodmaker’s vice president of technical services, and Mike McQuitty, head of quality assurance-hamburgers.