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Dismissal denied in Listeria-related Primus suits

On Oct. 28, District Court Judge Charles M. Pratt denied two motions to dismiss filed by Primus Group Inc. The case involves multi-district litigation in Colorado stemming from cases pending against Primus relating to the distribution of tainted cantaloupe.

“These cases involve claims arising from the death and injury of numerous individuals resulting from their consumption of Listeria monocytogenes linked to cantaloupe produced by Jensen Farms in 2011,” the judge stated about the background of the case.

Addressing each of the motions, Pratt wrote in his rulings that, “Whether the facts, including those concerning the extent and purpose of the audit, will support such allegations will have to await a motion for summary judgment or trial; such disputed issues of fact cannot be resolved at this stage.”

An amended motion filed by Primus asked that 24 legal claims grouped as Case No. 20-11CV1891 be dismissed. Primus contended that the complaint failed to set forth claims for which it has a legal duty. PrimusLabs, hired by Jensen Farms to conduct a facilities audit, subcontracted the audit to the company, Bio Food Safety, which assigned James Dilorio to perform the audit. “The audit resulted in a ‘superior’ rating of 96 percent,” Pratt wrote in his ruling. “After the audit was issued, the cantaloupe were released for sale to the public.”

During September 2011 the Food & Drug Administration investigated Jensen Farms, linking Listeria-related illnesses and deaths.

“Under the common law claims the parties focus their arguments on the issue of whether Primus’ alleged negligence was misfeasance or nonfeasance,” the judge stated. “For the purposes of this order the difference is that misfeasance requires proof that the defendant engaged in conduct which created the condition which resulted in the harm, whereas nonfeasance results from the defendant’s failure to engage in conduct which would or might have discovered or prevented the harm.”

Allegations in the amended complaints supported the following:

  1. “One purpose for which the audit was undertaken was the protection of the public from exposure to and consumption of harmful cantaloupe;
  2. “The auditor should have reasonably recognized that the audit was necessary to protect the public from exposure and consumption of harmful cantaloupe;
  3. “Failure to exercise reasonable care in conducting the audit increased the risk to the public from exposure to and consumption of harmful cantaloupe;
  4. “The auditor undertook Jensen Farms’ duty to the cantaloupe consuming public to inspect the cantaloupe production facility to identify potential containment hazards; and
  5. “The plaintiffs, as members of the cantaloupe consuming public, suffered illness and death because they, Jensen Farms and others reasonably relied upon the audit and auditor to uncover or detect the conditions which led to the distribution of contaminated cantaloupe.”

The judge also stated that the allegations of the complaints “sufficiently allege that the consumers of the cantaloupe produced at Jensen Farms were intended beneficiaries of the audit.”

Another motion for dismissal filed by Primus involved cross-claims brought by defendants Frontera Produce LTD and Dillon Cos. Inc. “Frontera has brought cross-claims against Primus for negligence, negligent misrepresentation, breach of contract and contribution,” Pratt wrote. “Dillon has asserted cross-claims against Primus for negligence and contribution.”

“Primus contends that due to the time difference between when the audit was conducted and the date(s) when the contaminated cantaloupe were processed and/or the government investigation was conducted, the allegations are insufficient to support a claim that the conditions found by the governmental investigations existed at the time of the audit,” the ruling stated.

Pratt wrote that Primus also argued that it was not hired by Jensen Farms “to conduct an audit which would test the cantaloupe or the environment within the packinghouse with regard to the quality and safety of the cantaloupes.”

Frontera and Dillon both alleged that Primus failed to accurately audit the Jensen packinghouse in compliance with its own as well as industry standards, and provided a “superior” rating rather than failing the packinghouse in a manner consistent with these standards.

Primus argued that the cross claims failed to set forth claims for which Primus owned a legal duty. “Thus the question is: did Primus owe a duty to Frontera or Dillon with regard to the audit?” the judge said regarding the alleged breach of duty.

The issue of whether Primus’ alleged conduct was misfeasance or nonfeasance was raised.

Looking at the issue of control over the cantaloupe, Pratt wrote, “Primus had control over when the cantaloupe would be released for sale to the public. Primus knew or reasonably should have known that until it completed the Audit the cantaloupe would not be released for sale to the public.”

He also said, “The counter-claim allegations sufficiently allege that based upon the surrounding circumstances (including requiring a properly completed Audit before the cantaloupe were released for sale to the public) the marketers and distributors of the cantaloupe produced by Jenson Farms were intended beneficiaries of the audit. The audit was alleged to have been conducted for the protection of the public from physical dangers associated with consumption of tainted produce.”

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Publisher’s Platform: Justice Delayed will not be Justice Denied

I have developed a lasting friendship with many of Stewart Parnell’s victims of the Peanut Corporation of America (PCA) Salmonella outbreak of 2009.  Many of the victims were my clients, including families of those that died.  I watched in awe as several of the victims or family members testified before Congress (See, all emails, documents and Congressional testimony.)  Many of them attended a press conference in 2011, where they asked why after two years Parnell was still free?

All were pleased in 2013 when Stewart Parnell, former chief executive; Michael Parnell, former vice president and peanut broker; Mary Wilkerson, former quality control manager; Sam Lightsey, former plant manager and Daniel Kilgore, former operations manager were charged with multiple counts of conspiracy, introduction of adulterated food into interstate commerce with intent to defraud or mislead, introduction of misbranded food into interstate commerce with intent to defraud or mislead, interstate shipments fraud, wire fraud and obstruction of justice.

The five were charged after a four-year FBI investigation following the 2008-2009 Salmonella outbreak that sickened over 700 people and killed nine. The pathogen was sourced back to the peanut butters and paste produced by the Lynchburg, Virginia-based PCA at processing plants in Blakely, Georgia, and Plainview, Texas.

Under section 402(a)(4) of the Federal Food, Drug, and Cosmetic Act of 1938, felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce. Any person who commits a prohibited act violates the FDCA. A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable years in jail and a substantial fine, or both.  These five defendant face jail time that could put them behind bars for the rest of their lives and fines that would bankrupt many businesses and most people.

I was pleased when Food Safety News broke the story early this morning that Sam Lightsey would likely be changing his plea from not guilty to guilty.  He would join Daniel Kilgore who pleaded guilty at the time the others were indicted. Kilgore’s and Lightsey’s sentencing will likely be held off until the other cases are completed.

Trial for the other three is scheduled for this summer.

I am thankful to the US Attorney for taking on the PCA felony case and for being more aggressive in prosecuting even misdemeanor cases under the FDCA.  A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation. Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $ 250,000, or both.

As the Jensen brothers learned in the wake of the 2011 Listeria cantaloupe outbreak that sickened 147 and killed over 30, and that Jack DeCoster will soon learn following a Salmonella outbreak that sickened thousands and forced the recall of over 500,000,000 eggs, US Attorneys are being more aggressive against people who poison their customers – even if done without intent.

Business owners and those in authority at food manufacturing facilities, be forewarned – you can go to jail if you ship tainted food into interstate commerce – knowingly or not.  Things have become a bit hotter in the kitchen.

Food Safety News

Rumours about Hepatitis A-infected Romanian blueberries denied

By Healthy Food Commodities
Rumours about Hepatitis A-infected Romanian blueberries denied

The Spanish firm Healthy Food Commodities focuses its activities on the import of fresh blueberries, walnuts, mushrooms and salty snacks (crackers, sticks and pretzels) from countries such as Romania, Serbia, Poland and Moldavia. At the same time, it is also devoted to the export of Spanish nuts, fruit and vegetables to Eastern Europe.

“As operators in the berry business, present in all production and sales stages, we guarantee that the produce of Romanian origin meets our quality standards and is suitable for human consumption,” explains Raluca Mudava, Manager of Healthy Food Commodities. (photo)

“From this position, we have been able to respond to the news circulating in the media, which we believe to be purposely harmful, unverified information, denying it to reassure producers, importers, great retail chains and final consumers,” she states. “We support sustainability in a business which is becoming increasingly more difficult to maintain, and even more with this kind of news which we currently have to deny, as Healthy Food Commodities guarantees fresh Romanian blueberries in perfect conditions for human consumption.”

As for the news article in question, we provide the following verified information: “On 14 September 2012, a Romanian company supplied its exclusive client in Italy with a 1,980 kilo batch of frozen wild blueberries, and the same day, the Italian firm received two more shipments from Poland and Bulgaria. On 19 June 2013, a warning was raised about a Hepatitis A outbreak (almost a year later); an outbreak presumably caused by a Romanian batch.”

“It is worth noting that on 19 June 2013 there was no Romanian blueberry harvest as a result of the weather conditions and time of the year; however, an inspection from the National Sanitary, Veterinary and Food Safety Authority of Romania (ANSVSA) was quickly carried out at the facilities of the Romanian supplier and the conclusion reached was that this supplier meets all European health regulations and that there was no trace of Hepatitis A at the facilities. Consequently, ANSVSA informed the relevant Italian authorities about the result and the issue was considered resolved.”

Healthy Food For Healthy Life blueberries.

“Along with the relevant Government authorities and the media, we will start an investigation to find out who was responsible for the misinformation so that compensation for damages can received,” asserted Raluca Mudava.

Additionally, she announced that they believe that, “behind all this, there are presumably people interested in damaging the reputation of Romanian products to devalue them and speculate after buying them for unfairly low prices. At Healthy Food Commodities we believe in fair trade, as we believe that producers, who carry out the hardest part of the job, must also be the ones earning the most.” 

For more information:
Raluca Mudava (CEO)
T:  +34 964 743 044
M:  +34 606 589 139
Skype: ralucamudava
[email protected]

Publication date: 7/18/2013