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.”