dog deaths and the corporate death penalty
and Robert Weissman
was simply no evidence that Sara Lee Bil Mar knew that the food product
that they were producing and shipping out was adulterated with Listeria
-U.S. Attorney Phillip Green.
Let us now have a moment of silence for the victims
of the Ball Park Franks fiasco.
This is the situation: Bil Mar Foods is a unit of the
Chicago-based giant Sara Lee Corporation, the maker of pound cakes,
cheesecakes, pies, muffins, L’Eggs, Hanes, Playtex and Wonderbra
products—your typical food and underwear conglomerate.
Bil Mar makes hot dogs—Ball Park Franks hot dogs.
You’ve seen them when you go to a baseball game at Tiger Stadium in
Detroit and elsewhere.
In June, Sara Lee pled guilty to two misdemeanor
counts in connection with a listeriosis outbreak that led to the deaths
of at least 21 consumers who ate Ball Park Franks hot dogs and other
meat products. One hundred people were seriously injured. The company
paid a $200,000 fine.
According to Kenneth Moll, a Chicago attorney
representing the families of the victims, this is what happened:
Bil Mar has a hot dog facility in Zeeland, Michigan.
The company shut down the facility over the July 4th weekend of 1998 to
replace a refrigeration unit that was above the hot processing facility.
The hot dogs are heated at one end and sent down a conveyer belt to the
Moll’s theory is that the removal of the air
conditioning unit and its replacement dislodged some dangerous bacteria
in the ceiling. When the plant reopened, steam from the passing hot dogs
went up to the ceiling, condensed and dripped back down with the
dangerous bacteria onto the hot dogs.
In November 1998, Paul Mead from the Centers for
Disease Control (CDC) in Atlanta started receiving calls from state
health departments around the country that had isolated strains of a
deadly bacteria, Listeria monocytogenes.
Mead looked at the bacteria and found that they were
the same strain. He sent out questionnaires and discovered there was an
open package of hot dogs in the home of one of the people who died. The
CDC tested the hot dogs and isolated the same bacterial strain—a DNA
fingerprint of the type of bacteria.
According to Moll, Mead went to the Bil Mar plant in
Zeeland, Michigan and tested unopened packages of hot dogs and was able
to isolate the same DNA fingerprint bacteria. In December 1998, Sara Lee
ordered a recall of millions of pounds of hot dogs and deli meats.
According to a series of reports in the Detroit
Free Press, plant workers were regularly testing work surfaces for
the presence of cold-loving bacteria—a class of bacteria that includes
the deadly Listeria monocytogenes as well as some harmless bacteria.
According to the Free Press, beginning in July
1998, after the replacement of the old refrigeration unit, workers
recorded a sharp increase in the presence of cold-loving bacteria. The
number of positive samples remained high until the company stopped
performing tests in November 1998—a month before the Sara Lee recall.
"Sara Lee was doing testing of the environment in the
plant for cold-loving bacteria," said Caroline Smith DeWaal of the
Center for Science in the Public Interest. "Then their tests started
coming up positive, so they stopped testing. They knew they had a
problem with bacteria in the plant. But instead of solving it, they
chose to ignore it."
This is crucial, because if the company knew that
they had a Listeria monocytogenes problem and ignored it, they could be
hit with a felony conviction. And felony convictions have all kinds of
collateral consequences, including possible loss of federal
contracts—Sara Lee had a big hot dog contract with the Department of
In an interview, U.S. Attorney Phillip Green said
there was insufficient evidence to bring a felony charge.
"There was simply no evidence that Sara Lee Bil Mar
knew that the food product that they were producing and shipping out was
adulterated with Listeria monocytogenes," Green told us.
When asked about the allegations raised by the
Free Press that the company was testing for cold-loving bacteria,
Green told us, "the testing that you are referring to is known as Low
Temperature Pathogens testing—that is a very general test that does not
necessarily indicate the presence of Listeria monocytogenes."
"The USDA regulations don’t require a plant to
conduct testing on finished products for the presence of deadly
pathogens such as Listeria monocytogenes," Green said. "And Bil Mar was
following accepted industry practices in conducting general testing for
the low temperature pathogens."
But Green refused to answer specific questions about
evidence concerning a possible felony violation.
Moll—the attorney representing the victims—told us
that the evidence "does necessarily indicate the presence of Listeria
monocytogenes." The CDC’s Mead found studies showing that, had Sara Lee
done further testing for the deadly strain of Listeria, almost half of
the cold-loving bacteria could have tested positive for Listeria
But U.S. Attorney Green never read Mead’s report. He
never called on Mead, perhaps the crucial expert in this case, to
testify before the grand jury.
In fact, it is apparent from our investigation into
this matter that federal prosecutors were overpowered by Sara Lee’s
outside lawyers in this case—the Chicago firm of Jenner & Block, led by
former Chicago U.S. Attorney Anton Valukas.
Valukas refused, on advice of his client, to speak
But the extraordinary degree of the collaboration
between Sara Lee and the federal prosecutors in this case can be seen on
Sara Lee’s web site where it has posted a "joint press release."
No, that’s not a typo. The U.S. Attorney and Sara Lee
issued a joint press release announcing the plea agreement in which no
mention is made of Ball Park Franks hot dogs.
The issuance of a joint press release is an
extraordinary event. U.S. Attorney Green can’t name a case where the
prosecutor and convict issued a joint press release announcing their
plea agreement. Neither can the current chief of the Criminal Division
at the Department of Justice, Michael Chertoff. He calls it "unusual."
In a number of ways, the Sara Lee prosecution brings
home the double standards in our criminal justice system.
A company pleads guilty to a crime that leads to the
death of 21 human beings. The company pleads to two misdemeanors. The
company is fined $200,000. Think about that.
We were so outraged by this that we went over to the
White House and asked President Bush’s press secretary about it.
We laid out the facts of the Sara Lee case and then
asked our question. This is how it went:
Question: Ari, has the President expressed a view
on the death penalty for corporate criminals—that is, revoking the
charter of a corporation that has been convicted of a crime that has
resulted in death?
Fleischer: The President does not weigh in on
those matters of justice. They should not be dictated by decisions made
at the White House.
Question: Now, Ari, wait a second. Ari, Ari, wait
a second. He’s in favor of the death penalty for individuals generally.
Is he in favor of the death penalty for corporations convicted of crimes
that result in death?
Fleischer: These are questions that are handled
by officials of the Justice Department—not by people at the White House.
Someday, Ari, the White House too will have to
answer—why death to individual criminals, but not to your corporate
(Russell Mokhiber, editor of the Corporate Crime
Reporter, and Robert Weissman, editor of the Multinational Monitor, are
co-authors of "Corporate Predators: The Hunt for MegaProfits and the
Attack on Democracy." (c) Russell Mokhiber and Robert Weissman)