When Upton Sinclair published his controversial novel, “The Jungle,” in 1906, he hoped to ignite public outrage. And he did. But the outrage he stirred was directed not so much at inhumane labor practices and cruelty to animals as it was at food manufacturing. Sinclair said, “I aimed at the public’s heart and, by accident, I hit it in the stomach.”
His exposé of immigrant labor and working conditions in the Chicago stockyards caused Congress to pass the 1906 Pure Food and Drug Act — the predecessor of our present-day Food Safety Modernization Act. The law prohibited interstate commerce in adulterated and misbranded food and drugs, providing unprecedented protections to consumers.
More than a century later, the laws and protections relating to food safety continue to evolve alongside our nation’s social, political and scientific progress. OFT Food Safety and Injury Lawyers (OFT) was founded two years ago on the passionate belief that people should be able to trust the safety of their food sources. When that trust has been violated, these advocates are ready with the knowledge, experience and resources to ensure that justice is done.
Attorney Ryan Osterholm has al-ways had a passion for science. And no wonder, growing up in a family of medical professionals. His father, Dr. Michael Osterholm, is the director of the Center for Infectious Disease Research and Policy (CIDRAP), professor at the University of Minnesota and served on President-Elect Joe Biden’s Transition COVID-19 Advisory Board.
From a young age, Osterholm understood the dangers of contaminated food. “I still remember the Schwan’s Salmonella outbreak,” he said. “I was only 13 years old, but I remember my dad working late nights and helping to piece together that raw eggs hauled in the same trucks used to haul ice cream mix had likely contaminated the finished product that sickened thousands of people across America.”
Osterholm has dedicated his career to representing people injured by foodborne illness, and he considers it more of a calling than a job. “As soon as I discovered this area of law, I knew exactly what I wanted to do with my career. I love spending every day delving into science as it pertains to the law. I enjoy getting to know my clients personally and really understanding how their illness impacted their lives.”
Knowing he wanted to focus on food, Osterholm went to work for Seattle attorney Bill Marler as a law clerk while in law school at the University of Minnesota. Marler represented the victims of the Jack in the Box E. coli outbreak in the early 1990’s and is known as the father of modern food-borne illness litigation. “I learned a lot about the science behind these cases from Bill. More important than that, however, I came to appreciate how a passion for a practice area can make you a better lawyer.”
Later, Osterholm practiced law alongside Brendan Flaherty at a personal injury firm, where they focused on foodborne illness cases before founding one of the nation’s only law firms focused on foodborne illness litigation.
Brendan Flaherty was inspired to a career in law by his attorney father, Tim Flaherty. He found his focus early on working at a small, personal injury firm, where he was part of a trial team representing victims of a very rare foodborne pathogen, Listeria monocytogenes. The dispute arose from the largest turkey deli meat recall in U.S. history.
“We represented two women who suffered devastating miscarriages and the family of a man who died, all after contracting Listeria from deli meat,” he recalled. “There were countless lawyers involved, mountains of documents, constant motions and many experts. I was hooked.”
For Flaherty, the best part of working on the cases was the mentorship of Fred Pritzker. “Fred is one of the state’s great trial lawyers. He had an unbelievable ability to understand science and work effectively with experts. He trusted me to do important work independently and really showed by example how important it is to hone all of your lawyering skills — from intake to trial.”
Over more than a decade, Flaherty has developed a particular expertise in Listeria injuries, representing victims from almost every major Listeria outbreak, including cases from raw milk; cheese; fresh-cut fruit; frozen vegetables; and caramel apples. Listeria cases are especially challenging because people often do not experience symptoms for weeks or months after consuming the contaminated product.
Flaherty has achieved groundbreaking results for his clients, including one of the largest ever E. coli verdicts. He was named a Minnesota Lawyer Attorney of the Year in 2014 and was recognized as one of the country’s top lawyers in the 2020 edition of “The Best Lawyers in America.”
Bart Torvik attended the University of Minnesota Law School alongside Flaherty and graduated first in his class. He went on to clerk for Judge James M. Rosenbaum, the Chief Judge of the United States District Court for the District of Minnesota (retired) before joining a large Minnesota firm, where he represented the Mayo Clinic in medical malpractice cases and a variety of businesses in patent litigation.
After moving to Evanston, Illinois, where his wife Laura works as the Chief of the Division of Epidemiology in the Department of Preventative Medicine at Northwestern’s Feinberg School of Medicine, Torvik opened his own practice. Along the way, he collaborated with Osterholm and Flaherty on food safety cases.
Having a wife who is a scientist in his practice area means that conversations around the dining table frequently turn to work-related matters. “I try not to bring work home, but the foodborne illness practice area really does require intensive scientific analysis, and I’m bouncing ideas and epi issues off Laura all the time,” Bart said.
Torvik is revered by his colleagues for his analytical and strategic approach to the law. “I loved law school,” he said. “I’m good at seeing all sides of an issue. When there’s a problem, a lot of people think there’s just one answer. But in law school, it’s all about figuring out all the different answers — not just one. It turned out that I loved practicing, too. I’ve always enjoyed the process of writing and arguing.”
Torvik manages the firm’s Chicago office, heads the firm’s IT initiatives, and monitors all ongoing foodborne illness outbreaks and food recalls. His passion for statistical analysis has helped the firm identify and prove cases. His mathematical mind also gets exercise by running one of the country’s foremost college basketball statistics websites, T-Rank. Torvik’s T-Rank models are frequently featured on ESPN, CBS Sports and other national news outlets.
LINDSAY LIEN RINHOLEN
Lindsay Lien Rinholen began her career working alongside Osterholm and Flaherty as a law clerk. She, too, has focused the entirety of her career on foodborne illness matters, and her tenacity has been vital to the arduous processes involved in investigating, arguing, and winning these complex cases.
Lien Rinholen brings a unique perspective to the firm as a native of a rural Wisconsin farming community who grew up raising horses. She never met a lawyer there, but throughout her early life, everyone agreed that she would make a great lawyer someday.
“I thought about it, and in the long term what motivated me to be a lawyer was to be an advocate for people, especially in a complicated and daunting context like the legal system,” Lien Rinholen said.
Lien Rinholen understands agricultural food production, because she grew up surrounded by it. As a result, she is able to communicate effectively with inspectors and people who work in the food processing sector. “Where food comes from and maintaining a close connection to those who work the land is important to me,” Lien Rinholen said.
Her background has proved invaluable in cases where a pathogen is literally traced from fork back to farm. “I love being able to help people who come to us after another lawyer or lawyers turned them down because they didn’t understand the infectious process or how to handle a food case.”
When Osterholm and Flaherty decided to open a firm dedicated to food safety in 2019, they were certain of one thing: Torvik and Lien Rinholen had to be part of the team. In addition to his legal skills, Torvik’s experience in running a law practice was crucial to the firm’s success. “He was such a natural addition,” Osterholm said. “He had the kind of firm management background that we lacked. It was a match made in heaven.”
Osterholm continued, “When we decided to form the firm, we didn’t just want Lindsay to join us, we knew we needed her. She was going to be such an important part of this team due to her background and the tenacity she brings. It’s so important in the law to have different experiences and ways of thinking about things in order to have a collaborative approach and different opinions.”
Flaherty added, “Bart brings a brilliant analytical mind and calming perspective — he sort of grounds us when talking about specific issues. Lindsay brings real passion. She’s a fighter and not afraid to mix it up and stand up for what she thinks is right. That’s a valuable aspect of doing litigation like we do.”
When the team formed, they agreed upon a set of core values that continue to influence their work today. These include putting family first; always doing the right thing; giving back; remaining open-minded; acknowledging and fixing mistakes; holding each other accountable; doing great work; and treating everyone with dignity. They also agreed to have fun. Spend a few minutes with this group, and it is plain to see that they are doing just that.
WINNING THE FOOD FIGHT
Simply stated, food safety is an issue that affects everybody, since everybody eats. What many don’t realize is that most cases of food poisoning go undiagnosed. The Centers for Disease Control and Prevention (CDC) estimates that 48 million cases of foodborne illnesses and food poisoning occur in the U.S. every year. The worst cases result in devastating illness, with consequences that can include lifelong complications or even death. There are roughly 3,000 fatalities annually due to unsafe food.
“We focus on those cases where people have been hospitalized and often have serious complications,” Flaherty said. “For example, we currently represent a young woman who contracted a severe E. coli O157:H7 infection, and just when she looked like she was going to recover completely, the toxin produced from the bacteria triggered Hemolytic Uremic Syndrome (HUS), a condition which resulted in permanent damage to her kidneys.”
Food cases present some unique challenges in comparison with other product liability cases, since the injury-causing product — consumed food — is almost never available for inspection. To further complicate matters, the victim may not be sick for days, weeks or months after eating it. Thus, it is extremely challenging to identify precisely which food item was the ultimate source of infection.
The lawyers at OFT are nationally recognized subject matter experts who are experienced in litigating food cases. They understand how to identify and trace sources of contamination. Further, they have relationships with key experts in related fields and know the major food producers and retailers. They respond to crises across the country and have developed a network of attorneys who support them in interstate and multistate litigation. They also advise other attorneys in foodborne illness matters.
Winning justice for victims of foodborne illness requires the collaboration of experts in epidemiology, microbiology, and food production and distribution. In what often boils down to a battle of the experts, who you know is crucial to proving your case. “Ultimately, we are in a people business,” Flaherty said. “We have to know people in our field. And in our field, those people include first-rate pediatric infectious disease doctors, epidemiologists, nephrologists, bio-statisticians and the like. We have developed personal relationships with these folks. We talk the talk with them, and they know we don’t chase cases without merit. When we bring cases to the experts, they are already vetted. We’ve already ruled in or out the easy stuff. And we are not there to ask them to bend the scientific truth. We believe all of our cases to be completely legitimate. We also work with food processing experts. There is a huge difference between ground beef production and fresh cut fruit production, and they are regulated by different agencies. They require two completely different sets of experts. Sometimes distribution experts rule a product in or out based on distribution or inventory shelf life.”
“The word I’d use is credibility,” Osterholm added. “We have credibility with experts because we are genuine, treat people the right way and do things the right way. The experts know we’ve done our homework, and we won’t ask them to say anything they don’t want to say. That bleeds into our legal adversaries. When we’re up against a defense attorney, they also know we’ve done our homework. If we take a case, and they don’t want to resolve it, we’re going to try it and win it.”
OFT’s lawyers often work hand-in-hand with public health officials to find the source of foodborne pathogens. That may mean tracing component parts of food to determine at which stage of production it became contaminated. The process begins with asking the right questions: Where does the victim shop? What records do they have? When did they experience their first symptoms? Is anyone else in the family sick? After a rigorous examination of data and test samples, a picture may begin to emerge, revealing a common food source.
The COVID epidemic has shined a spotlight on the important role that health agencies play in public safety while also taxing them to their very limits. “In our practice, we see them working hard all the time,” Flaherty said. “These people have been working day and night since COVID.”
Osterholm added, “Many food-borne illness public health professionals we work with got drawn into COVID. I know for a fact that many are working 100-plus hours a week for the same salary. It’s really hard for me to see some people acting like these professionals have an agenda. It’s not how they operate. They are some of the best public servants we have in government. Many are PhDs who are paid relatively little for their experience and education level — they’re not in it for the money. We know them and work with them, and we know them to be highly competent scientists. It hurts to see them lambasted by some people who don’t understand.”
FOOD SAFETY NOW AND IN THE FUTURE
There is no doubt that food safety has come a long way since 1906. But how safe is the food we consume in 2021? According to OFT, safe, but not safe enough. Flaherty explained, “In today’s world, food is produced on a massive scale, and because of that, any breakdown in food safety can cause massive injury. In my career, I’ve seen things get safer and safer, in large part as a result of the suits we bring. We used to see huge E. coli outbreaks almost always caused by ground beef. Now, you almost never hear about contaminated beef. Now, it’s bagged salads, because they’re behind the times on safety protocols, particularly in growing areas.”
One thing is certain: every major outbreak where hundreds become sick is nearly always linked to a failure to follow the proper rules and policies designed to protect food. Flaherty continued, “Our food is as safe as it ever has been; however, most of our food is mass produced and production techniques are rapidly evolving. Because of the scale of production, a breakdown in food safety threatens to sicken far more people than ever before. For example, during certain growing seasons, we are heavily dependent on the Salinas Valley for fresh produce. These growing areas are frequently next to large-scale cattle operations and any number of factors, like a weather event, can cause fecal contamination of huge swathes of production area. In 2020, contaminated romaine lettuce from the Salinas Valley resulted in 167 E. coli infections in 27 states.”
New production techniques are also impacting food safety. Flaherty explained, “Fresh-cut fruit, for example, is very convenient but particularly risky because cut fruit presents an ideal environment for bacterial growth, and is very difficult to produce safely on a large scale.”
The attorneys at OFT pride themselves on innovation in the practice of law. They believe that “we’ve always done it this way” is the worst possible reason for doing anything. Instead, they ask, “How should this be done?” and “How can we do it better?”
Cases of foodborne illness are both unique and complex. They require informed, experienced representation of the caliber OFT provides along with its promise to earn its clients’ trust through hard work, honesty and communication.