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.