Outbreak lawsuits target Wal-Mart, PrimusLabs

11/11/2011 07:59:00 AM
Tom Karst

Targeting not only the supplier and distributor of tainted cantaloupes but also setting sights on Wal-Mart and auditor PrimusLabs, a prominent food safety lawyer has filed multiple lawsuits stemming from a listeria outbreak.

Seattle-based food safety lawyer Bill Marler has filed eight lawsuits related to the listeria outbreak, and is working on behalf of at least three dozen people sickened or killed in the outbreak health officials traced to Jensen Farms, Holly, Colo. Ten of those cases involve the estates of people whose deaths are linked to the outbreak

More lawsuits are expected, he said Nov. 8, including one naming Santa Barbara, Calif.-based PrimusLabs, which inspected the cantaloupe farm and facility.

In an e-mail, Robert Stovicek, president of Santa Maria, Calif.-based PrimusLabs, said he had no comment on the potential lawsuit.

Marler on Nov. 8 said seeking liability from a third-party auditor will be a hard-fought battle.

“I think they are not going to want to agree to that, because it would open themselves up for some pretty significant changes in the way they do business — for all auditors,” he said.

The lawsuit filed in Colorado for plaintiffs Charles and Tammy Palmer in September names Wal-Mart Inc. and Jensen Farms as defendants. Other lawsuits name Jensen Farms and Frontera, which marketed the cantaloupes.

Bankruptcy fallout?

Marler said the Palmer lawsuit is the only one listing a retailer, but more retailers could be involved later, chiefly because he expects Jensen Farms and Frontera to be forced into bankruptcy.

“Eventually, not just for the ill people, but also cases against them from outside entities, I don’t see any choices for Jensen Farms and Frontera but Chapter 7 (liquidation),” Marler said.

Jim Mulhern, spokesman for Edinburg, Texas-based Frontera Produce Ltd., said the company could not comment on pending litigation, but that any lawsuit presents a financial burden in that resources are diverted away from jobs and growth.

He also said Frontera looks forward to serving its customers for many years to come.

Eric Jensen, owner of Jensen Farms, did not return calls for comment.

Wal-Mart’s reaction

“We wish Mr. Palmer well, and we take claims such as his very seriously,” said Dianna Gee, senior manager for media relations for Bentonville, Ark.-based Wal-Mart.

She said she had no other comment on the lawsuit.

Gee said that as soon as Wal-Mart became aware of the outbreak associated with cantaloupes from the Rocky Ford area, the retailer worked with suppliers to determine the source, removing them before Jensen announced a recall.

She said recent foodborne outbreaks and concerns reported by regulatory officials in the U.S. and abroad, linked to small and local suppliers, prompted Wal-Mart to improve the

retailer’s process for sourcing products from secondary and local suppliers.

“Based on some findings, we have cut ties with some suppliers,” she said Nov. 10.

Gee said Wal Mart was in the process of requiring the chain’s secondary suppliers to achieve prevention-based certification on one of the Global Food Safety Initiative-benchmarked standards.

Although growers, processors and distributors are often defendants in similar outbreaks, retailers haven’t been exempt from damages in the past. Marler said some retailers and helped pay claims resulting from a salmonella outbreak case in 2008 and 2009 when the Peanut Corp. of America went bankrupt, leaving victims looking for compensation.

Marler said Jensen Farms has $2 million in insurance and Frontera $10 million to cover claims.

Frontera disputes that number, and Marler's account of the lawsuits' effect on the company.

“Unfortunately, there has been much unfounded speculation surrounding this matter from the very beginning,” according to a statement from Mulhern. “We simply won't engage in it. What’s important for everyone to know is that our company and its dedicated employees look forward to serving our customers for many years to come.”

Besides the claims filed by Marler’s firm, there are at least five other lawsuits, he said.



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Bill Shoemaker    
Chicago  |  November, 11, 2011 at 09:11 AM

I think it will be important to question how liability can be applied unless the actual source of the contamination is identified. Was it from field workers using unsanitary practices? Was it from rodents that were neglected by the packing house management? Was it from birds flying over the fields? Was it from wild mammals making their way through the fields? At some point we need to be realistic about the risks facing growers, as well as the rest of the produce distribution system as we try to feed a growing world in a natural environment that relinquishes no grip on challenging all its organisms. We are not exempt. Just because we hand of responsibility for sourcing food to others does not mean we can enjoy risk-free living. My father was a victim of a listeria infection. Placing blame on others who weren't malicious in thier behaviour, nor neglectful, will not bring him back. I hope we don't go down the road of placing all of this kind of risk responsibility on farmers who already face enormous challenges to produce our food. I am not a farmer but I know intimitely how difficult their path is and how little they actually control in the process of producing food. Are we being realistic in our assignment of responsibility?

Bill Marler    
Seattle  |  November, 11, 2011 at 09:32 AM

Bill - you might take the time to read the FDA's report: http://www.fda.gov/Food/FoodSafety/CORENetwork/ucm272372.htm

MARK G.    
Florida  |  November, 11, 2011 at 09:54 AM

I will be quick and to the point.....maybe Wal-Mart should start with the fact that they display a large amount of the product they sell without refrigeration in their produce sections? Yes, thats where I would start........Just a thought.........

Jorge    
Florida  |  November, 11, 2011 at 10:22 AM

How many people will go out of work if Jensen files for banckrupcy ? In this economy ? Way to go ! Wouldn´t it be best to try to settle the lawsuit so that a) Victims are properly compensated and b) The companies in the problem involved take sufficient steps to prevent it from happening again ? ...

Sandy Watts    
Vero Beach, FL  |  November, 11, 2011 at 10:28 AM

As a produce professional I worry about this type of lawsuit. The average American consumer and I suspect the majority of corporate chainstore buyers are ignorant of the problems that the fresh produce industry faces. While I agree that consumer safety is of paramount importance, food safety issues are a whole lot bigger and more complicated than most people can comprehend. As producers we grow fresh produce in less than perfect conditions. Fresh produce is grown; out of doors, on the ground, subject to all kinds of variables that can culminate from naturally occurring variables from water, soil, insects, birds, animals, bacterias, and viruses and any combination there-of. The human factors have some controls that can and do limit contamination but that system is not perfect: common sense tells me that it never can be perfect. Our industry has been feeding the world for decades and the number of outbreaks and contamination issues have been minimal, because in general the system we have works and while science has provided some advancements coupled with food safety handling practices have improved the process and eliminated alot of the contamination issues.

Mike Poindexter    
Selma, CA  |  November, 11, 2011 at 10:40 AM

Certainly, cases like this disprove the argument that the little guys are clean and that big corporate farms are the source of our troubles. The outbreak in Germany that took so many lives traced back to an organic outfit, yet the FSMA decided to exempt small farms. If there is a need for food safety, then it needs to be applied everywhere, not just to some processors and not others. As for Mark's comment, if the fault was Wal-Mart's lack of refrigeration, that wouldn't explain 13 out of 39 swabs at Jensen Farms testing positive for Listeria. As Bill Shoemaker says, let's not place blame on those who were not malicious or neglectful. Room temperature displays in the produce department are neither of those things.

bob    
Thayne Wy  |  November, 11, 2011 at 12:43 PM

While we feel sorry for the families of those who lost loved ones, were the actions of the producers, distributors, retailers malicious? The first thing that happens as soon as the body is buried, some lawyer comes along and says, hey, they need to pay and i'm the guy to help you. I know Wal-Mart has deep pockets, but should they be required to test every single produce item they sell. As they say "crap" runs downhill. So now we are at Jensen Farms. Did they act in a malicious manner, knowing their product was not fit for human consumption, i doubt it. Did they depend on inspectors to say they were able to ship their product, supposedly so. Did they pre-wash the melons before they were shipped. By putting the company into bankruptcy, two things will be accomplished, more people will be out of work and some lawyer will be richer. The families need to be compensated, that is for sure, but put a reasonable settlement in place. It's obvious, the first to file will be the victors of the spoils, and the rest will be left with just memories. As an after thought, it is recommended that you wash "all" fruits and vegetables before cutting, peeling or eating. Did the victims contribute in some manner. Just wondering

Produce Guy    
Texas  |  November, 11, 2011 at 01:24 PM

I agree with Bill. Although we should definitely try to make our food as safe as possible, at some point we have to be realistic about the limitations of any effort. Produce does not grow in a vacum in space and is only as clean as the inputs that we use to grow it. As the population of the world expands closer and closer into production areas and the water sources used for irrigation become increasingly poluted by runoff, industrialization and human recreational activities, the situation is only bound to become more grave. We have to explain to the general people their ever increasing role in food safety and the fact that all of us are ultimately part of the problem and the solution. As for the companies that grow and distribute our foods go, we should implement guideliness for safety that they should follow and create certification institutions to police them. As long as they follow these practices and there is no negligence in their part, (at some point) they should be inmmune to lawsuits. If we continue destroying every single company that provides jobs and products for our nation, we will only be left with imported products of worse quality than the ones we started with and the multitude of predatory lawyers that destroyed our companies and profited in the process. It's time for our country to have an honest discussion about food safety and to make each one of us accountable for our part in making our food safer.

Chuck Niwrad    
California  |  November, 11, 2011 at 01:34 PM

In the majority of instances, outbreaks of food-borne illness can be traced to simple, easily corrected factors, yet with each outbreak, there is often a proposal to add yet a new layer of complexity as a solution. Lets focus on the basics and ensure that all producers, even the smallest, are getting the fundamentals right, and getting them right 24/7. Too many producers view audits as just another piece of paper that they need to satisfy their customers, and too many retailers equate complicated, onerous audits with actual food safety. The produce industry is trying to harmonize standards and focus on the fundamentals. Retail should also focus on the fundamentals; keep it simple, but apply uniform, common-sense standards to everyone.

Chuck Niwrad    
California  |  November, 11, 2011 at 01:39 PM

In the majority of instances, outbreaks of food-borne illness can be traced to simple, easily corrected factors, yet with each outbreak, there is often a proposal to add yet a new layer of complexity as a solution. Lets focus on the basics and ensure that all producers, even the smallest, are getting the fundamentals right, and getting them right 24/7. Too many producers view audits as just another piece of paper that they need to satisfy their customers, and too many retailers equate complicated, onerous audits with actual food safety. The produce industry is trying to harmonize standards and focus on the fundamentals. Retail should also focus on the fundamentals; keep it simple, but apply uniform, common-sense standards to everyone.

Clarence W. Karney    
Visalia, CA  |  November, 12, 2011 at 12:09 AM

Well here we are 20 years later since our first industry UFF&V meeting in San Francisco and we as a industry have done anything to cure the same Food Safety Issues we faced them. When are we going to realize as a industr house keeping and once a year audits will not cure the Food Safety Issues comes from pathogens and must be treated as such. We as a industry has let GREED and a way to get around the regulations has become a way of life for our industry. It is time for all the game playing to stop and look at what the real issues of FOOD SAFETY is all about. It is time for the FDA to get their headf out of the sand as well as the Food Service, Retail chains plu the supply industry. Stop playing the Head Games and get the issues solved. Yes there is a COST EFFECTIVE SOLUTION that works. Lets QUIT playing mind games and get to REALITY. The FDA NEEDS HELP in a big way there is a cost effective solution for all idustry. If we keep going on the path we are on the only ones who will surive are Lawyers. Will be announcing very soon a cost effective program that is a win for all players.

jd    
cincinnati  |  November, 12, 2011 at 08:39 AM

They could solve these issues simply by using FIT. Clean your food.

Just Saying    
Oxnard  |  November, 13, 2011 at 06:02 AM

While I don't think anyone wakes up in the morning saying that they want someone to die from their product, at the end of the day someone's family member died from eating food. Whether it is fresh produce or processed twinkies, no one should get a pass in killing people with their product. Yes, produce is grown in the outdoors and exposed to naturally occurring bacteria, but that was not the issue in Jensen Farms. Can you imagine how dirty that facility was that they took environmental swabs and 1/3 came back positive? Almost everyone knows that if you take used equipment, you can almost never clean the remnants out of the machinery. That's why in the allergen world the second you produce nuts in a facility, your products must forever be printed with "made in a facility where nuts have been processed." Granted you can sanitize and re-sanitize, but bacteria can continue to move and pop up. It's a tragedy to lose companies that have been around for multiple generations. But it is a bigger tragedy that people lost their family members because they decided to buy and eat sliced cantaloupes. That is the ultimate sacrifice. What if it was your mom or sister or wife? There are no winners in this horrible event. May God be with all the families of those involved.

Produce Guy    
California  |  November, 15, 2011 at 05:50 PM

So much information has been miscontrued - and the truth is no one knows for certain how the Listeria entered the packinghouse (though we can be relatively certain of a couple of ways in which it was spread. Lets not kid ourselves, Jensen Farms' production and packinghouse is probably along the same lines of practice and sanitation as the majority of packinghouses around the Country. We've never seen listeria in cantaloupe, and using a one-pass rinse system is common for non edible skin produce. Its a tragedy that this happened, but putting companies out of business is not going to solve it. Marler stated in another article that he would bring in everyone he could because there was not much insurance between Jensen and Frontera. i.e. - he is going to bring in the retailers who have the money to pay his clients. Not because they actually have any justifiable blame or negligence put on them - just because they have money. What is wrong with that picture? I look forward to Marler contributing everything he makes off these cases to increased food safety. If every farmer and supplier had the resources to perfrom a 3 week test like the FDA did after the fact, maybe we would have 100% risk free food - but that is never going to happen.

Produce Guy    
Texas  |  November, 15, 2011 at 08:38 PM

It’s imperative for all of us in the Produce Industry to keep a close eye in what happens in the Jensen case. While justice needs to be served for those affected, it is very important that we do not allow attorneys to drag innocent third parties into the lawsuit for the sole purpose of obtaining more money to line their pockets. Doing so would set a very dangerous precedent for the industry as a whole. If Jensen is liable, then, Jensen is liable; end of story. As somebody that has dealt (in the past) with Frontera Produce and with most of the retailers involved in the case I can tell you that if it happened to them, it can happen to anyone in the industry. We also need to have an honest conversation with the public and set realistic expectations for the industry as a whole. We live in a world of interesting contradictions. We want a smaller government, but we want more laws and more protections. We demand organic naturally grown produce, but are ready to hang the farmers that produce it when something goes wrong. We complain about unemployment, but we have created a legal system designed only to destroy our jobs. We want healthy, clean foods, but we want them cheap (or at least as cheap as the foods that come from countries and/or companies that cut every single corner and respect no law). We have developed a severe case of bipolarity in this country and we are becoming less competitive in this global market that we have created. We, as an industry, can continue delivering safe quality produce to our tables, but we need everyone’s help, understanding and continued economic support.

Brunhilde Merker    
USA-Florida  |  November, 17, 2011 at 10:39 AM

To produce absolute clean food is almost not possible and everybody in the industry knows it. No matter how many safe guards are in place incidents like this from last Sunday, where a carcass of a dead and "decomposed" bird was found in pre-prepared salads are happen. As it is important to follow the GAP’s, do every possible sanitation, it is also most important to have a traceback system in place where you can find a product in seconds and take it off the market, not matter how often it is handled or commingled from the grower to the consumer. Only ScoringAg’s database can trace situations like this back to every individual handler and the products in question can be taken off immediately without destroying everything. PTI can't do it!

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