Third-party auditors Primus Group Inc. and Bio Food Safety Inc. have been named in a lawsuit seeking compensation for survivors of a victim of the foodborne illness linked to cantaloupe from Jensen Farms in Colorado. Other defendants in the lawsuit are Jensen Farms and Frontera Produce Ltd.
Seattle food safety litigator Bill Marler filed the suit in late November in the Fifth District Court in New Mexico on behalf of plaintiffs John Wilcox and Robert Wilcox, who are the children of the deceased, Florence Wilcox.
In an interview with The Packer in early November, Marler had said it was his intent to bring retailers and third-party auditors into various lawsuits related to the listeria outbreak because the number of victims — 129, including 29 who have died — would overwhelm the expected available funds from Jensen Farms and Frontera.
“(Bringing in retailers and third-party auditors) is the only way that the victims are going to be fairly treated,” he said at the time.
Bentonville, Ark.-based Wal Mart Stores Inc. was previously named as a defendant in a lawsuit Marler filed in Colorado.
Robert Stovicek, president of Santa Maria, Calif.-based PrimusLabs, e-mail response declined to comment on the litigation.
Jim Mulhern, spokesman for Edinburg, Texas-based Frontera Produce, also said that company could not discuss the litigation.
“We are eager to provide our defense in court and will do so at the appropriate time,” Mulhern said in an e-mail statement.
The New Mexico lawsuit said Primus used Texas-based Bio Food Safety Inc. as a subcontractor to conduct the audit of Jensen Farms. The lawsuit said Bio Food Safety auditor James Diiorio conducted an audit at Jensen Farms on about July 25, which the lawsuit said was about one week before the Centers for Disease Control and Prevention identified the first victim of the cantaloupe listeria outbreak.
The lawsuit said the audit conducted by Diiorio on behalf of defendants Primus and Bio Food Safety found many of the same aspects flagged by the FDA in a September inspection were scored as “total compliance” in the third-party audit. In its report, the FDA noted several problems related to Jensen Farms, including pooled water on the packing facility floor, equipment design and postharvest practices.
“Mr. Diiorio’s various acts and omissions of negligence, in conjunction with the negligence of Primus in selecting, approving and monitoring Bio Food Safety as auditor of Jensen Farms’ facility, and with Bio Food Safety’s negligence in hiring, training and supervising Mr. Diiorio as auditor, constituted a proximate cause of the decedent’s listeriosis illness and death,” the lawsuit said.