Wal-Mart says Primus, others should pay in listeria case

02/20/2014 06:08:00 PM
Coral Beach

Wal-Mart Stores Inc. not only contends is has no liability in the 2011 cantaloupe-related listeria outbreak, but the retailer says it was damaged by the outbreak and wants food safety auditors and others to reimburse it for the cantaloupe and legal expenses.

In a third-party complaint filed in federal court in Wyoming, the Bentonville, Ark., retailer names grower Jensen Farms, Granada, Colo.; distributor Frontera Produce Ltd., Edinburg, Texas; food safety auditor Primus Group Inc., Santa Maria, Calif.; and its subcontractor Bio Food Safety, Rio Hondo, Texas.

The wrongful death case in Wyoming is one of 66 state and federal cases pending nationwide that were filed by victims and relatives of the listeria outbreak. The cantaloupe grown by brothers Eric and Ryan Jensen caused at least 33 deaths and 147 illnesses across 28 states, according to the Centers for Disease Control and Prevention.

Both Jensens pleaded guilty to federal criminal misdemeanors and were sentenced to six months of home detention and five years of probation.

Wal-Mart’s complaint states Primus had a duty to provide accurate auditing services and should not be allowed to delegate that responsibility. The complaint contends the food safety audit of the Jensens’ operation should not have resulted in a “superior” rating and a score of 96% because the “conditions and practices (there) were inconsistent and/or irreconcilable with the superior rating and score.”

Other retailers, including The Kroger Co., have been named in civil lawsuits and are expected to file similar cases against the food safety auditing firms, said Bill Marler, a Seattle food safety attorney who is handling 46 of the 66 victim lawsuits.

It is not unusual for a retailer to bring action against upstream suppliers, Marler said, but Wal-Mart’s naming of a third-party auditor is unusual.

“I’ve never seen it before, where a retailer has a third-party complaint against an auditor,” he said.

About 20 of the listeria victim lawsuits name Wal-Mart. Kroger is the defendant in about 30 of the cases, Marler said.

Wal-Mart recently hired new legal counsel, said Ryan Fothergill, in-house counsel for Primus. He said it appears the retailer has a new strategy that apparently brings everyone into the lawsuit for indemnification purposes.

Fothergill said more legal actions might be coming from Wal-Mart against the four parties named in the Wyoming case.

A spokesman for Wal-Mart could not be reached for comment.


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Nick    
Florida  |  February, 21, 2014 at 09:11 AM

I would argue that Wal-Mart actually bears more blame than Primus Labs. Wal-Mart told its suppliers what kind of audit it needed, and apparently Jensen Farms passed that audit. Wal-Mart, being a large corporation, could very well dictate to its suppliers a more stringent audit that includes things like product testing. A Primus Labs audit is limited in scope to what is happening on an operation on a certain day, and is further limited by the type of audit requested. Everyone along the supply chain either knows or should know what an audit consists of. I would suggest that it Wal-Mart wants to better protect its customers, they should pay to do residue and microbiological testing on the produce that they buy.

Ward Thomas    
McAllen TX  |  February, 28, 2014 at 12:28 PM

The whole thing is getting carried away, what are we going to do, test every melon? Primus sold Wal-Mart on the idea that it's suppliers need to be certified. Primus makes money that way. Now Primus wants no liability, big surprise. The only thing Wal-Mart did wrong was to require these evidently worthless 3rd party audits. If they test every melon, is the food supply any safer? More tests, more inspections, less suppliers, more costs, where does the madness stop? If the cantaloupe were not washed, this wouldn't have happened. Little Johnny comes out of the bathroom at the store and then starts rummaging through the produce isle, did somebody test the produce? Little Johnny did.

    
March, 04, 2014 at 01:55 PM

Exactly.

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