Growers Eric and Ryan Jensen have pleaded guilty in the 2011 cantaloupe-related listeria outbreak that killed 33 people.

But they want a jury to decide if Primus Labs and its subcontracted food safety auditor are guilty of negligence and breach of contract for giving their Colorado operation an almost perfect score just before the 2011 shipping season.

The brothers are free on bonds, awaiting a Jan. 28 sentencing hearing in Denver. Sentencing guidelines included in the Jensens’ plea agreements are very broad, suggesting each might serve 4 to 27 months and pay up $1,000 to $250,000 in fines.

“The guidelines are advisory only,” said Jeff Dorschner, spokesman for the U.S. Attorney’s office in Denver. “The judge can consider other factors.”

The maximum possible sentence each face is six years, one year for each of six federal misdemeanor counts. The maximum possible fine the judge could impose for each brother is $1.5 million, or $250,000 for each of the six counts.

Or, Dorschner said, the judge could opt for probation of up to five years, with no prison time. If the Jensens are sentenced to jail time, it will be served in a federal facility.

The 2011 listeria outbreak killed at least 33 people, caused one woman to miscarry and could be the cause of at least another 10 deaths, according to the plea agreement, which the U.S. Attorney's office posted online.

Jensens could get probation; sue Primus for negligenceCase against auditors

A week before they pleaded guilty, the Jensens filed a case in Prowers County, Colo., against Primus Labs, Santa Maria, Calif., seeking unspecified damages. The Jensens hired Primus to perform food safety audits on their growing, packing and shipping operation.

Primus subcontracted the job to Bio Food Safety, a Texas company, which sent auditor James Dilorio to Jensen Farms, Holly, Colo., on July 25, 2011, according to the Jensens' complaint.

The attorneys representing Primus declined to discuss the case until they have reviewed it.

The complaint also states that the Jensens’ distributor, Frontera Produce, Edinburg, Texas, “required that the Jensen cantaloupes Jensen sold to Frontera be ‘Primus Certified.’ ” The Jensen brothers contend the audit should have identified problems that Food and Drug Administration investigators found at the packing facility after the listeria outbreak had begun.

“The purpose of the audit performed by BFS, on behalf of Primus, was to ensure that the cantaloupes produced by Jensen were of high quality, fit for human consumption, free from contaminants, and in compliance with the appropriate standards of care concerning the production of cantaloupes, including, but not limited to, good agricultural and manufacturing practices, industry standards, and relevant FDA industry guidance,” the Jensens lawsuit states.

The Jensen brothers also used part of the U.S. Attorney’s case against them as support for their case against Primus.

“According to James R. Gorny, Ph.D., at the time a senior advisor for produce safety, Center for Food Safety & Applied Nutrition at the FDA, Jensen deviated from industry standards by failing to use an anti-microbial, such as chlorine, in the packing of their cantaloupes during the summer of 2011,” states the Jensens' complaint, quoting directly from the case against them.

“…Dr. Gorny opined that the Primus Labs subcontractor that conducted the pre-harvest inspection of Jensen Farms, and provided a ‘superior’ score of 96% for the audit upon which Jensen Farms relied, was seriously deficient in its inspection and findings.”

The Jensens contend Primus is guilty of negligence, breach of contract, negligent hire, negligent misrepresentation and unfair and deceptive trade practices.