PrimusLabs blames Jensens, Frontera for listeria outbreak

01/09/2014 05:25:00 PM
Coral Beach

PrimusLabs Corp. is seeking dismissal of a civil case filed against the audit firm by cantaloupe growers Eric and Ryan Jensen, placing blame on the brothers and distributor Frontera Produce.

The case involves a 2011 listeria outbreak that left 33 people dead, and which was traced to the Jensens’ Holly, Colo., farm.

“The natural and probable cause of Jensen’s damages was its production, distribution and eventual sale and consumption of the contaminated cantaloupes. As such, the cause of Jensen’s damage was outside Primus’ obligation or ability to control,” the Santa Maria, Calif.-based food safety audit company said in its motion to dismiss.

Even though an audit in July 2011 — conducted by BFS for PrimusLabs — gave the Jensens packing shed a score of 96 out of 100 and a “superior” rating, PrimusLabs contends the Jensens should not have assumed their cantaloupes were “fit for human consumption.”

PrimusLabs described the audit as “non-descript” in court documents. The audit company contends it did not create a risk that otherwise did not exist and that there is no reason to think Jensen Farms would have not shipped cantaloupe if it had received a poor audit score.

“If Jensen wanted to protect consumers from its products, it could have contracted with some third party to conduct the requisite environmental testing and inspection,” PrimusLabs states in court documents.

Last year the Jensens signed the case over to the victims, and any damages awarded will be paid directly to them. Food safety and personal injury attorney Bill Marler is handling the case against PrimusLabs.

There are another 66 lawsuits pending across the country seeking damages from retailers, including Wal-Mart and Kroger, who handled the fruit; Marler represents 45 of those plaintiffs. He was scheduled to meet with the retailers in Phoenix on Jan. 9.

“In addition to their insurance coverage of $15 million, Frontera’s insurance company has agreed to pay legal fees for Kroger and Wal-Mart if (the retailers) will pay their share of the damages,” Marler said, adding that PrimusLabs, Associated Wholesale Grocers and other retailers have not paid anything toward the $50 million that the Jensens’ bankruptcy judge estimated will be due to the victims.

“Some retailers have settled, like HEB and Middlemen and others. They already paid between $7.5 million and $8 million.”

Officials with Edinburg, Texas-based Frontera Produce said they could not comment specifically on pending litigation, but that they are working to resolve claims.

“There is nothing we at Frontera can say that will make the losses any less tragic for the families affected by the listeria outbreak,” said Will Steele, president and CEO of Frontera.

“… we can say that from the beginning Frontera has been engaged actively and in good faith with the victims’ lawyers and our own customers, including the retailers who sold the cantaloupes and their lawyers, in an effort to resolve the legal claims. Those efforts are ongoing.”



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Roger    
CA  |  January, 09, 2014 at 06:06 PM

Primus have totaly devalued their auditing capabilities. how can they give a superior rating to a business and not fail them insiting they needed the environmental testing to pass. I am sure Walmart would not have sold the fruit if they had not passed the audit. **PrimusLabs described the audit as “non-descript” in court documents. The audit company contends it did not create a risk that otherwise did not exist and that there is no reason to think Jensen Farms would have not shipped cantaloupe if it had received a poor audit score.** Who would buy it with a poor audit score?? “If Jensen wanted to protect consumers from its products, it could have contracted with some third party to conduct the requisite environmental testing and inspection,” PrimusLabs states in court documents. Feels like that should be part of the non descript standard!!

John    
California  |  January, 10, 2014 at 11:22 AM

Roger- I can't think that you have any experience in Food Safety or the auditing process. The audit scheme that Primuslabs follows is dictated usually by the type of commodity as most commodities have a different level of requirements and standards. There are also multiple types of audits that can be conducted. Up until this outbreak, Cantaloupes were not considered a high risk commodity. The audit seemingly was conducted at the start of the season where everything was good and clean as could be. The audit requirement for most commodities at the time was an annual inspection. You can't fault Primus for the time and manner the audit was scheduled. They are a 3rd party audit company. Until the system and requirements are changed (which they are already being changed) the responsibility of an outbreak remains the shipper/Grower and not the audit company. The score that was given i'm sure was correct. Having gone through tons of audits myself, I can tell you that it's not the audit company, but rather the whole system in general. Ultimately the audit is just a brief inspection of your food safety program. If you pass that inspection, it is the responsibility of the grower/shipper to uphold those standards through your whole shipping season. Obviously this wasn't the case with the Jensens.

Chuck    
California  |  January, 10, 2014 at 11:40 AM

Spot on, John. An audits is a snapshot of an operation on one or maybe two days out of the year, and some packers are not above gaming the system and operating differently on audit days than they do the rest of the time. Retailers "trust" audits because it allows them to check the box next to "Have we done our due diligence?", everyone knows that audits don't protect anyone, its the packer's commitment to food safety principles that does.

Tom Ambrosia    
haccp.us  |  January, 10, 2014 at 12:38 PM

John and Chuck and Roger you are all correct to some if not all degree BUT Primus and many auditing companies very seldom fail a customer. I know as I speak from 40 yrs of hand on auditing, consulting and training experience, where CB (certifying bodies, or your bosses), tell you this is a valuable client and we cannot afford to lose them if we fail them, find a way to pass them if need be. The auditor was quite green and was not supervised and never did a Farm/Pack House audit (I have done 100's). The protocol and ? were quite clear and the auditor should also be party to the lawsuit. I would say Jensen is 99.9% responsible but the auditor and Primus Labs or Certifying Body must be held accountable. The Jensens never tested as anyone in produce should be doing. Cantaloupes had been a concern but was on the back burner at USDA/FDA for years (just like EColi0157H7). 33 People died due to Stupidity, Green and Untruthful statements from all parties. Hold Jensens, Primus/CB and auditor responsible. Under FSMA rules an auditor and CB (unless this was removed) could lose their licenses to practices for 3 yrs. This auditor needs to never be allowed to audit in the food industry again and would be shocked to have any decent honorable firm to hire him to audit a food plant or farm or packhouse ever again.

dhinds    
Guadalajara  |  January, 10, 2014 at 03:28 PM

The responsibility of Primus Labs will be determined by the text of the contract that the Jensen Bros. signed with them. Logically, a yearly audit can do no more that verify that the infrastructure, technology and methodology are in place for the Jensen's to realize an adequate and safe cantaloupe packing and shipping operation. But the implementation is what counts! Did Primus Labs design HACCP (Hazard Analysis and Critical Control Points) procedures for Jensens? That is the only way to exercise a maximum degree possible of control of biological or toxic risks and has to be monitored constantly. "Listeria monocytogenes (the principle human pathogen) is ubiquitous in the environment. The main route of acquisition of Listeria is through the ingestion of contaminated food products. Listeria has been isolated from raw meat, dairy products, vegetables, fruit and seafood. The main means of prevention is through the promotion of safe handling, cooking and consumption of food. This includes washing raw vegetables and cooking raw food thoroughly". In other words, the pathogen is not a systemic disease in cantaloupe but rather, was derived from poor handling and the source was not identified. Was someone packing Jensen's cantaloupe a carrier of the disease? Was water used to wash off the dust from the field the culprit? Where were the daily lab tests and who was responsible for performing them? The only thing clear here is that no one wants the responsibility but in that case, either don't get involved or do it right in the first place. I see no innocent parties here. Just ignorant and irresponsible ones.

Brad    
Hollister  |  January, 10, 2014 at 06:59 PM

I do not want to pick on "Roger," and with a disclaimer like that . . . but this is exactly the wrong impression portrayed in investigatory agency reports and media for years. I have read investigation reports questioning the absence or tardiness of an audit, be it an annual or sometimes pre-harvest, then seen a news story run with this fact like it somehow made a difference or caused the outbreak or recall. All an audit does is see if the equipment, technology, training and operation follows the company's and industry's practices. It does not scientifically verify their effectiveness or that of a company's HACCP. Also an audit can assure that unique requirements of some customers are being followed by a company. It remains to be seen how the FDA, or state agency, will consider their facility inspections. Will these then become hooks to bring in the agencies as defendants in the event the facility is later implicated in an outbreak?

Blame Me    
USA  |  January, 15, 2014 at 11:41 AM

Is the produce supply any safer now than it was 30 or 20 years ago when we didn't have all these food safety audits and inspection costs?? Seems like Primus was the key player in running up all these extra costs. While Primus makes plenty of money with these so called "non-descript" audits and wants no responsibility, nothing really seems to change other than the costs. No matter how much is spent, eventually something bad is going to happen. Why couldn't Jensen ship the cantaloupe unwashed? Were they told they had to wash them for food safety reasons? When people die or get hurt for any reason, you can bet a bus full of lawyers will be the first ones on the scene. You can bet those lawyers are not helping the victims pro-bono!

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