Primus denies any liability to the Jensens or consumers. It contends the Jensens are to blame, partly because of the type of audit they requested.
The attorney representing Primus said the Jensens did not request any microbiological testing and that they requested their audit be done on a day when their packing facility had not yet begun operations for the season. He said the auditor did find areas of minor, major and “total noncompliance” but was still able to give a 96% score and a superior rating to Jensen Farms.
“I understand 96 seems incongruous,” said attorney Jeffrey Whittington, of Kaufman Borgeest & Ryan LLC. “People in the food industry know what that means.”
Whittington said auditors measure an operation against its own food safety plan and other points clients specifically request.
A superior score can be awarded despite possible deficiencies because the problems may not be in the scope of the audit. Also, Whittington said, the International Organization for Standardization (ISO) prohibits third-party auditors from giving advice to clients.
“This litigation is really an unfair attack on the business model of third-party auditors because they have no ability to disclose results to anyone but their clients. They have no police power and there are no reporting requirements,” said Whittington.
However, the Jensens complaint against Primus says their contract with Primus called for the audit to be done on a day when they were operating normally and processing fruit.
“Pursuant to (Primus’) own guidelines, the audit was to be immediately terminated” if the packinghouse was not operating in a normal fashion, the Jensens contend.
Despite the fact that the packing shed was not yet operating, the auditor gave a perfect 15 out of 15 score and answered “yes” to the audit form question “are the products or ingredients free of insects/rodents/birds/reptiles/mammals or any evidence of them.”
The cantaloupe growers also say in court documents they would not have shipped their cantaloupe and no consumers would have been infected with listeria if they had not received Primus certification. The Jensens’ distributor, Frontera Produce, Edinburg, Texas, required suppliers produce to be Primus certified.