A collection of wrongful death lawsuits filed against several agribusinesses, including Santa Maria-based Primus Labs, is currently making its way through bankruptcy court in Colorado.
The litigation stems from a listeria outbreak in the summer of 2011, when 147 people in 28 different states became ill after eating bacteria-laced cantaloupe. According to an investigation conducted by the Centers for Disease Control and Prevention (CDC), 32 people died and one pregnant woman miscarried.
CDC officials determined the contaminated cantaloupes were grown by Jensen Farms in Colorado and shipped to vendors throughout the nation by Frontera, a Texas-based produce distributor.
According to a lawsuit filed on behalf of Patricia Hauser, the widow of one of the victims, the U.S. Food and Drug Administration (FDA) announced in September 2011 that it found listeria in samples of Jensen Farms’ Rocky Ford-brand cantaloupe taken from a Denver-area store and on samples taken from equipment and cantaloupe at the Jensen Farms packing facility. Tests confirmed the bacteria found in the samples matched one of the strains associated with the outbreak.
In an interview with the Sun, Bill Marler, lead council for the food safety law firm Marler Clark, said of the 147 people who were affected by the outbreak, 58 talked to authorities. Marler is representing 44 of those individuals, many of whom filed suits on behalf of loved ones who died.
Marler said the victims of the outbreak accumulated millions of dollars in medical bills and additional damages, for which they are seeking retribution.
Jensen Farms contracted with Primus Labs to audit the food safety practices at its facility in Colorado. Primus then hired Bio Food Safety to perform the audit. According to the Hauser complaint, an audit was conducted at Jensen Farms roughly one week before the CDC indentified its first outbreak victim. The Bio Food Safety employee gave the packing facility a superior rating.
However, according to the suit, an FDA-led inspection of the facility in September found pools of water that tested positive for listeria under the packing equipment. The FDA also found Jensen Farms purchased its packing equipment from another company, Pepper Equipment, which originally used it to wash potatoes. Other concerns included inefficient cooling equipment and not using an antimicrobial solution to wash the cantaloupes.
Since the lawsuits were filed, both Jensen Farms and Bio Food Safety have gone bankrupt, and Pepper Equipment settled out of court.
The companies’ assets—approximately $4.5 million—have been divvied up among the victims, but Marler said the amount “is not even close to fair compensation.”
“My clients alone have $13 million in hospital bills,” he said. “Frontera is next in line, but they only have $11 million in [insurance] coverage.”
He said his firm has already started discussions with Primus Labs. The firm will approach retailers, such as Walmart and other grocery stores, if necessary.
Primus Labs, however, has filed a motion to dismiss some of the suits, including Hauser’s. The motion states that Primus Labs didn’t “owe [Hauser] a duty in conducting its audit,” so the company isn’t legally culpable for any damages that occurred.
Jeffrey Whitington, legal representation for Primus Labs, said the company “performed its obligation that it contracted to do.”
“Primus is not in the chain of distribution so it did not do anything wrong,” he said. “The type of audit selected by the client determined the scope and standard of the audit.”
The Hauser suit is arguing that third-party auditors should be held responsible for the food safety service they provide to the community.
“[Primus is] saying the only liability they have is to the people who paid for the audit, which was Jensen Farms, and not the people who bought the cantaloupes,” Marler said.
A food safety lawyer for 20 years, Marler said many of the companies sued for outbreaks actually receive superior audit ratings.
“There are a lot of good people who do audits, but the incentives are wrong because the audits are paid for by the producers,” he said. “The audits should be owned by the retailers. … They need to be owned as close to the consumers as possible.”
This article appears in Nov 22-29, 2012.
