Let us now have a moment of silence for the victims of the Ball Park
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.
Last month, 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 other.
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
In November 1998, Paul Mead from the Centers for Disease Control (CDC) in
Atlanta started receiving calls from the state health departments around
the country that had isolated strains of a deadly bacteria, Listeria
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
This is crucial, because if the company knew that they were 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 Defense.
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
"The USDA regulations don't require a plant to conduct testing on finished
product 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
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 monocytogenes.
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 with us.
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 criminal paymasters?
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime
Reporter. Robert Weissman is editor of the Washington, D.C.-based
Multinational Monitor. They are co-authors of Corporate Predators: The
Hunt for MegaProfits and the Attack on Democracy (Monroe, Maine: Common
Courage Press, 1999).
(c) Russell Mokhiber and Robert Weissman