Jensens seek probation as PrimusLabs denies liabilityCantaloupe growers Eric and Ryan Jensen are seeking probation after pleading guilty to criminal charges in relation to the 2011 listeria outbreak traced to their fruit, detailing how they relied on a food safety auditor"s "superior" rating and didn"t know their operation was flawed.

Facing possible sentences of six years each, the Jensen brothers said in court documents that prison time would be "a harbinger of the end of small American family farmers. This irretrievable piece of Americana has already been damaged it need not be destroyed."

The brothers" cantaloupe caused 33 deaths and 147 illnesses across 28 states according to the Centers for Disease Control and Prevention.

The Jensens each pleaded guilty to six federal misdemeanors of introducing contaminated food into the supply chain. Sentencing is set for Jan. 28 in Denver.

The probation requests reference a pre-sentence investigation report, which is not a public document, saying the probation officer who did the report did not find any evidence the brothers were aware their equipment or procedures were substandard.

"Additionally, there is no evidence to suggest that the defendant and codefendant ‘cut corners" to save money in order to earn a greater profit by installing the new processing equipment," Eric Jensen"s attorney wrote in the request. "It is readily apparent that the probation officer who authorized the report invested much time, effort and thought into this project. His recommendation for probation is reasonable."

Many of the points in the probation requests are included in the Jensens" federal lawsuit against PrimusLabs, whose parent company is Primus Group Inc., Santa Maria, Calif.

The brothers signed the case over to the 66 listeria victims and victims" families who have filed civil cases in relation to the Jensens cantaloupe so any damages awarded will be paid to those victims.

PrimusLabs is named in all of the suits. Two federal judges and one state judge have dismissed Primus from cases in their jurisdictions. Bill Marler, the Seattle food safety attorney handling 45 of the victim cases as well as the Jensens" case against Primus, said case law is mixed on the question of "duty to consumers," but he believes many of the cases will go forward.

Primus continues to blame Jensens

PrimusLabs subcontracted the Jensens" 2011 audit to Texas-based Bio Food Safety Inc. The Jensens contend the California company was negligent and breached its contract because the auditor failed to point out substandard conditions and equipment that federal officials later cited as the cause of the listeria contamination.

Primus denies any liability to the Jensens or consumers. It contends the Jensens are to blame, partly because of the type of audit they requested.

The attorney representing Primus said the Jensens did not request any microbiological testing and that they requested their audit be done on a day when their packing facility had not yet begun operations for the season. He said the auditor did find areas of minor, major and "total noncompliance" but was still able to give a 96% score and a superior rating to Jensen Farms.

"I understand 96 seems incongruous," said attorney Jeffrey Whittington, of Kaufman Borgeest &amp Ryan LLC. "People in the food industry know what that means."

Whittington said auditors measure an operation against its own food safety plan and other points clients specifically request.

A superior score can be awarded despite possible deficiencies because the problems may not be in the scope of the audit. Also, Whittington said, the International Organization for Standardization (ISO) prohibits third-party auditors from giving advice to clients.

"This litigation is really an unfair attack on the business model of third-party auditors because they have no ability to disclose results to anyone but their clients. They have no police power and there are no reporting requirements," said Whittington.

However, the Jensens complaint against Primus says their contract with Primus called for the audit to be done on a day when they were operating normally and processing fruit.

"Pursuant to (Primus") own guidelines, the audit was to be immediately terminated" if the packinghouse was not operating in a normal fashion, the Jensens contend.

Despite the fact that the packing shed was not yet operating, the auditor gave a perfect 15 out of 15 score and answered "yes" to the audit form question "are the products or ingredients free of insects/rodents/birds/reptiles/mammals or any evidence of them."

The cantaloupe growers also say in court documents they would not have shipped their cantaloupe and no consumers would have been infected with listeria if they had not received Primus certification. The Jensens" distributor, Frontera Produce, Edinburg, Texas, required suppliers produce to be Primus certified.