Karst chat with Bill Marler: 100% likely to bring everybody in - The Packer

Karst chat with Bill Marler: 100% likely to bring everybody in

11/03/2011 05:15:00 PM
Tom Karst

2:10 p.m. Marler: Nope. Not at all.

2:11 p.m. Karst: But you have talked about looking at the whole supply chain when you are talking about these food safety lawsuits..

2:11 p.m. Marler: Sure, but let’s put it in context. It varies a little bit from state to state, but generally speaking the chain of distribution from the farmer to the retailer bears some responsibility for the manufacturing, shipping, production and sale of a contaminated food product. And also, between the chain of distribution and the consumer, the chain of distribution - individually or collectively - can claim the consumer mishandled the product. You didn’t wash your cantaloupes, you didn’t cook your meat, you didn’t wash your triple washed bagged lettuce; whatever defense they want to raise by blaming the consumer, everybody in the chain of distribution has some role to play in food safety. And that same issue gets played out in the court room. What my practice has been in the last decade is to go after the entity that has the most opportunity to fix the problem before it became a big problem. Generally speaking, that’s the manufacturer. It is not necessarily the farmer, it is usually the entity that collected stuff and put everything together. It varies from state to state and outbreak to outbreak, but then my practice is really sort of focus on the entity that had the last best opportunity to fix the problem before it became a big one. In a perfect world, that makes a lot of sense but looking at this cantaloupe outbreak, it makes it difficult to do that. If you sort of line up Jensen Farms, Frontera, the auditor, the grocery store, the victim and set them all on a couch and say, Okay, collectively you guys are 100% at fault - how am I going to divide it up? And I think most people would look at it and go, you know Jensen Farms, they are the ones that are most at fault, and the rest of these guys have some other level of fault. Maybe some people said the consumer had no responsibility, other people say the consumer had responsibility. People can argue about that and that is what they do in the court room. I think we all could agree that Jensen Farms as the manufacturer, reading the report from the FDA, is the entity that screwed this up. The problem is that Jensen Farms has $2 million in insurance and not enough assets. When you are dealing with 130 victims so far and probably by the end of the week it will be 140 or 145 and instead of 28 deaths and a miscarriage it could be 30 deaths and a miscarriage. You look at Jensen Farms with $2 million in coverage and not enough assets and say there is not enough money. So then you have to look and say who else is responsible for this problem? Frontera - they had their name on it and they were the packer/shipper and they have responsibility, and same with the auditor. Now we may not have a great direct claim against the auditor, but Frontera does and they may certainly bring in the auditor. Then there is the retailer. They probably look at themselves as victims too, but as between the person who bought the cantaloupe in the grocery store, who is more of the victim? And does a grocery store have an obligation to its consumer to not sell them products that are contaminated and from entities that have limited assets and insurance. That’s why it is 100% likely that this cantaloupe outbreak is going to bring in everybody in this outbreak, including the retailers and the auditor and Frontera and Jensen Farms because that’s the only way that the victims - whom we all would agree have far less culpability than the other side of the equation - that’s the only way that these people are going to be fairly treated. But it’s going to be a battle.

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