Two Colorado cantaloupe farmers who pleaded guilty to charges related to a deadly listeria outbreak in 2011 are asking a federal judge for probation, saying jail time for them is excessive because justice has been served with the federal government’s imposition of new food guidelines.

Attorney William Marler, who represents 24 people who died from the outbreak, said Thursday he believes probation is adequate. He said farmers, retailers and the federal government learned valuable lessons and there are now new regulations in place that will reduce the likelihood of a repeat tragedy.

Attorneys for Eric and Ryan Jensen, the two brothers who owned and operated Jensen Farms in Holly, Colo., said in federal court filings on Tuesday that jail time would be excessive.

The 2011 listeria outbreak traced to tainted fruit from the Jensens’ farm caused 33 deaths and sent scores of people to hospitals. Officials have said people in 28 states ate the contaminated fruit and 147 were hospitalized.

Prosecutors are expected to make their recommendations before a sentencing hearing on Jan. 28. The U.S. Food and Drug Administration has said the rare move to charge the Jensens was intended to send a message to food producers in the wake of the deadliest case of foodborne illness in the nation in a quarter century.

According to The Packer, PrimusLabs of Santa Barbara, Calif., is named in all of the suits. Two federal judges and one state judge have dismissed Primus from cases in their jurisdictions.

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 & Ryan LLC. “People in the food industry know what that means.”

Do consumers?