Lawyers win: Wal-Mart files suit in Jensen cantaloupe case

Posted on February 15, 2014 by Douglas Powell

There’s a food safety shell game for fresh produce involving growers, retailers and auditors.

Consumers are losing, lawyers are winning.

Tom Karst of The Packer reports that Wal-Mart Stores Inc., facing a lawsuit from the family of a man who died after eating a cantaloupe bought at one of its stores – one of 33 who died in the 2011 listeria-in-cantaloupe outbreak — is now suing the grower, distributor and the grower’s third-party auditor.

In a complaint filed in Wyoming federal court in late January, Wal-Mart asserts third-party claims against Edinburg, Texas, distributor Frontera Produce Ltd., auditors Primus Group Inc. and Bio Food Safety Inc., and Jensen Farms. Primus subcontracted Bio Food Safety to undertake the on-site audit of the cantaloupe farm, which resulted in a superior rating of 96%.

The third-party complaint is tied to a wrongful death lawsuit brought in Wyoming against Bentonville, Ark.-based Wal-Mart by Frederick Lollar, the husband of the deceased woman..

Bill Marler, Seattle food safety attorney handling about 45 of the 66 victim cases related to the listeria outbreak, said it is not unusual for a retailer to bring action against upstream suppliers, but Wal-Mart’s naming of a third-party auditor is unusual.

No jail time for Jensens in cantaloupe Listeria outbreak

Posted on January 29, 2014 by Douglas Powell

A federal judge in Denver sentenced Eric and Ryan Jensen each to six months of home detention and five years probation for selling Listeria contaminated cantaloupe in 2011 that killed 33 and sickened 147 people across 28 states.

The brothers, who owned and operated Jensen Farms, Granada, Colo., pleaded guilty last year to six federal misdemeanors of introducing an adulterated food into interstate commerce. They could have faced up to six years in prison and $1.5 million in fines.

Coral Beach of The Packer reports the judge also ordered the Jensens each to pay restitution of $150,000 and to do 100 hours of community service, according to U.S. Attorney’s office in Denver. Ryan Jensen agreed to attend a substance abuse program and take drug tests and Eric Jensen agreed to provide a DNA sample, according to the U.S. Attorney’s office.

The Jan. 28 ruling by Magistrate Judge Michael E. Hegarty came after the U.S. Attorney’s office and officials from the federal probation and parole office recommended probation in the case.

“These defendants were at worse negligent or reckless in their acts and omissions,” Assistant U.S. Attorney Jaime Pena wrote in a court document recommending probation.

Listeria cantaloupe farmers seek probation

Posted on January 17, 2014 by Douglas Powell

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?

Listeria lawsuits question food safety audits

Posted on January 10, 2014 by Douglas Powell

Lawsuits filed by victims of a 2011 Listeria outbreak that killed four New Mexicans and severely sickened a fifth raise questions about the effectiveness of food safety inspections required by many retailers.

The New Mexico victims were among 33 people killed nationally by bacterial infections linked to cantaloupes grown at a farm in Colorado, making it one of the deadliest outbreaks of food-borne illness in U.S. history.

A focus of the five New Mexico lawsuits, and dozens of others in the U.S., is a California food safety auditing firm, PrimusLabs, that gave the Colorado cantaloupe packing operation a score of 96 percent and a “superior” rating just weeks before the outbreak, the lawsuits contend.

The New Mexico lawsuits, filed in U.S. District Court in Albuquerque, also name Walmart Stores, where the families say they purchased the tainted cantaloupes, and Frontera Produce, a Texas-based produce distributor.

A contractor hired by PrimusLabs inspected Jensen Farms in July 2011 and gave the cantaloupe packing operation the superior rating, allowing it to continue selling cantaloupes, the lawsuits contend.

In September 2011, health officials announced a multistate Listeria outbreak that ultimately infected 147 people in 28 states, including 15 in New Mexico. Later that month, federal and Colorado health officials inspected Jensen Farms, finding 13 confirmed samples of Listeria strains linked to the outbreak.

PrimusLabs Corp. is seeking dismissal of a civil case filed against the audit firm by cantaloupe growers Eric and Ryan Jensen, placing blame on the brothers and distributor Frontera Produce.

Even though an audit in July 2011 — conducted by BFS for PrimusLabs — gave the Jensens packing shed a score of 96 out of 100 and a “superior” rating, PrimusLabs contends the Jensens should not have assumed their cantaloupes were “fit for human consumption.”

PrimusLabs described the audit as “non-descript” in court documents. The audit company contends it did not create a risk that otherwise did not exist and that there is no reason to think Jensen Farms would have not shipped cantaloupe if it had received a poor audit score.

“If Jensen wanted to protect consumers from its products, it could have contracted with some third party to conduct the requisite environmental testing and inspection,” PrimusLabs states in court documents.

What we found when investigating the audit issue, long before this 2011 outbreak, was:

• food safety audits and inspections are a key component of the nation’s food safety system and their use will expand in the future, for both domestic and imported foodstuffs., but recent failures can be emotionally, physically and financially devastating to the victims and the businesses involved;

• many outbreaks involve firms that have had their food production systems verified and received acceptable ratings from food safety auditors or government inspectors;

• while inspectors and auditors play an active role in overseeing compliance, the burden for food safety lies primarily with food producers;

• there are lots of limitations with audits and inspections, just like with restaurants inspections, but with an estimated 48 million sick each year in the U.S., the question should be, how best to improve food safety?

• audit reports are only useful if the purchaser or food producer reviews the results, understands the risks addressed by the standards and makes risk-reduction decisions based on the results;

• there appears to be a disconnect between what auditors provide (a snapshot) and what buyers believe they are doing (a full verification or certification of product and process);

• third-party audits are only one performance indicator and need to be supplemented with microbial testing, second-party audits of suppliers and the in-house capacity to meaningfully assess the results of audits and inspections;

• companies who blame the auditor or inspector for outbreaks of foodborne illness should also blame themselves;

• assessing food-handling practices of staff through internal observations, externally-led evaluations, and audit and inspection results can provide indicators of a food safety culture; and,

• the use of audits to help create, improve, and maintain a genuine food safety culture holds the most promise in preventing foodborne illness and safeguarding public health.

Audits and inspections are never enough: A critique to enhance food safety

30.aug.12

Food Control

D.A. Powell, S. Erdozain, C. Dodd, R. Costa, K. Morley, B.J. Chapman

http://www.sciencedirect.com/science/article/pii/S0956713512004409?v=s5

Abstract

Internal and external food safety audits are conducted to assess the safety and quality of food including on-farm production, manufacturing practices, sanitation, and hygiene. Some auditors are direct stakeholders that are employed by food establishments to conduct internal audits, while other auditors may represent the interests of a second-party purchaser or a third-party auditing agency. Some buyers conduct their own audits or additional testing, while some buyers trust the results of third-party audits or inspections. Third-party auditors, however, use various food safety audit standards and most do not have a vested interest in the products being sold. Audits are conducted under a proprietary standard, while food safety inspections are generally conducted within a legal framework. There have been many foodborne illness outbreaks linked to food processors that have passed third-party audits and inspections, raising questions about the utility of both. Supporters argue third-party audits are a way to ensure food safety in an era of dwindling economic resources. Critics contend that while external audits and inspections can be a valuable tool to help ensure safe food, such activities represent only a snapshot in time. This paper identifies limitations of food safety inspections and audits and provides recommendations for strengthening the system, based on developing a strong food safety culture, including risk-based verification steps, throughout the food safety system.

Listeria-in-cantaloupe victims go after Primus Labs

Posted on November 23, 2013 by Douglas Powell

Audits and inspections set a food safety minimum.

The best farmers, processors and retailers will go far above and beyond what is required by minimal standards.

Coral Beach of The Packer reports that following a meeting with some family members of victims of the 2011 listeria outbreak linked to cantaloupe from their farm, Eric and Ryan Jensen signed over a lawsuit they filed against Primus Labs to the victims.

Attorney Bill Marler, who represents 46 of the 64 victims and their families who have filed civil suits against the Jensen brothers, said Nov. 21 that he would soon file a notice of appearance in Colorado state court in the case against the Santa Maria, Calif., auditing firm.

By “assigning” the case to the victims, the Jensens have basically taken themselves out of the lawsuit against Primus Labs, Marler said. Now he and the other lawyers representing victims in civil cases against the Jensens will prosecute the Colorado case against Primus Labs.

Any settlement in the Primus Labs case will be divided among the victims, Marler said. He said he could not estimate how long it would take to resolve the case. Marler will continue to represent 46 clients who have filed civil suits against the Jensens.

In the suit against Primus Labs, the Jensen brothers contend the auditing firm should be liable for damages related to the 2011 listeria outbreak that killed at least 33 people.

The Jensens hired Primus Labs to do a food safety audit of their operation, but the company paid a third-party contractor to do the job.

Bio Food Safety, a Texas company, sent auditor James Dilorio to Jensen Farms, Holly, Colo., on July 25, 2011, according to the Jensens’ complaint.

Dilorio gave the Jensens’ operation a score of 96 out of 100. He did not raise questions about numerous issues that the Food and Drug Administration cited in its inspection report on the Jensens’ farm and packing facility after the deadly outbreak.

As we wrote last year:

• food safety audits and inspections are a key component of the nation’s food safety system and their use will expand in the future, for both domestic and imported foodstuffs, but recent failures can be emotionally, physically and financially devastating to the victims and the businesses involved;

• many outbreaks involve firms that have had their food production systems verified and received acceptable ratings from food safety auditors or government inspectors;

• while inspectors and auditors play an active role in overseeing compliance, the burden for food safety lies primarily with food producers;

• audit reports are only useful if the purchaser or food producer reviews the results, understands the risks addressed by the standards and makes risk-reduction decisions based on the results;

• there appears to be a disconnect between what auditors provide (a snapshot) and what buyers believe they are doing (a full verification or certification of product and process);

• companies who blame the auditor or inspector for outbreaks of foodborne illness should also blame themselves;

• assessing food-handling practices of staff through internal observations, externally-led evaluations, and audit and inspection results can provide indicators of a food safety culture; and,

• the use of audits to help create, improve, and maintain a genuine food safety culture holds the most promise in preventing foodborne illness and safeguarding public health.

Audits and inspections are never enough: A critique to enhance food safety

Food Control

D.A. Powell, S. Erdozain, C. Dodd, R. Costa, K. Morley, B.J. Chapman

http://www.sciencedirect.com/science/article/pii/S0956713512004409?v=s5

Abstract

Entire food system should be accountable for outbreaks

Posted on October 9, 2013 by Douglas Powell

Arresting the Jensen brothers without indicting anyone else in the food system is like arresting Richard Eggers to curb the excesses of the global financial crisis.

Eggers, a 68-year-old Des Moines resident, who gained national attention after being fired by Wells Fargo & Co. in July 2012, was featured on the Colbert Report (video below for North Americans) in a segment satirizing the federal government’s failure to jail a single high-level banker who helped precipitate the global financial crisis.

Eggers was fired after the nation’s largest bank by market value learned that he had been arrested 49 years ago for putting a cardboard cutout of a dime in a Carlisle laundry machine. He is one of an estimated 3,000 low-level bank employees who were fired last year under employment regulations meant to deter the kind of high-level excesses that helped precipitate the global financial crisis.

The Jensen’s case is far more serious, involving the death of 33 people and sickening 143 from Listeria in cantaloupe in 2011, but focusing on the farmers who received stellar audit reports lets the system off the hook.

And the system is at fault.

The nation’s food safety system, especially for produce, is a patchwork of third-party audits, personal assurances, and profit before protection.

The government – the U.S. Food and Drug Administration – says it’s sending a message, but it’s sending the wrong one.

Eric Jensen, 37, and Ryan Jensen, 33, were accused of six counts of introducing adulterated food into interstate commerce and aiding and abetting.

The Jensens should be held accountable, as should everyone else in the food system, including the auditors that gave the Jensens a big thumbs up and the retailers who rely on paperwork in the absence of evidence. Going after the weakest link only displays a decrepit and ineffectual system.

Some companies – to their credit – are going beyond the paper trail and using their own staff along with outside expertise to build a credible food safety system; some companies really are better.

And they should brag about it.

Because as a consumer, I have no way of knowing whether one cantaloupe was raised, harvested, packed and shipped more hygienically than another. Retailers insist all food is safe, but weekly outbreaks, especially with repeat offenders, shows the system is broken.

(Meeting government standards implies no sort of microbial food safety; that is a tactic to deflect responsibility, what some call the Pinto effect.)

The FDA may be flexing its tiny muscles against the weak kids, but is doing nothing visible about that troubled third-party system in food, where the company selling the food is paying the auditor to approve the safety of the food.

The best producers won’t rely on government and will get ahead of the food safety curve.

Cantaloupe auditor also criticized in U.S. criminal charges over listeria

Posted on October 2, 2013 by Douglas Powell

“The Primus Labs subcontractor that conducted the pre-harvest inspection of Jensen Farms was seriously deficient in their inspection and findings.”

Which, according to Michael Booth of The Denver Post, questions the role of the third-party auditor.

That allegation was contained in the documents filed in the wake of criminal charges against the Jensen brothers for the 2011 listeria-in-cantaloupe outbreak that killed 33, and was made by Dr. Jim. Gorny, who was then senior advisor to the FDA’s Center for Food Safety & Applied Nutrition.

According to Booth’s reading of the records, the Jensens had a visit from a food safety auditor just before they shipped the first tainted cantaloupes, and the federal charges note the Primus Labs auditor gave them a 96 per cent “superior” rating. About the same time, the government notes, Jensen Farms made a pact with Frontera Produce to distribute the cantaloupes across the country.

Critics in the federal charges and elsewhere have said an auditor should have noticed the Jensens were using the wrong kind of equipment to wash and sort their melons. They had bought used potato harvesting equipment, and that was meant for foods that would be fully cooked, not served raw. The machines allowed the water to pool and become tainted over time, with listeria “inoculating” onto the cantaloupe as it passed by. A chlorine-based system should have been added to spray anti-bacterial water onto the cantaloupes, FDA and other critics have said (though that was not a hard and fast government rule at the time, merely a suggestion).

But what is the FDA doing about that troubled third-party system in food, where the company selling the food is paying the auditor to approve the quality of the food? Nothing visible.

FDA said in a statement the criminal prosecution “sends the message that absolute care must be taken to FDA said after the charges were filed that deadly pathogens do not enter our food supply chain.”

Food safety is first, the responsibility of growers, and some growers are better than others.

33 died in Listeria outbreak; Colorado cantaloupe farmers charged by federal officials

Posted on September 26, 2013 by Douglas Powell

Two Colorado brothers who grew listeria-contaminated cantaloupe linked to a 2011 outbreak that killed 33 people nationwide and sickened hundreds more were criminally charged Thursday by federal authorities.

The Denver Post reports that Eric and Ryan Jensen, charged with four counts of introducing aldulterated food into the food supply, turned themselves in to federal marshals. They are scheduled to appear in court Thursday afternoon.

The outbreak two years ago this month was linked to Jensen Farms in Granada, Colo., after an investigation that traced half-eaten cantaloupe taken from patients’ refrigerators to grocery stores and then to the farm. The Centers for Disease Control and Prevention officially has linked 33 deaths to the outbreak, although 10 other people who had been infected with listeria bacteria after eating Jensen cantaloupe also have died since the outbreak.

The federal charges, announced by the U.S. Attorney’s Office in Denver, each carry up to one year in jail and a $250,000 fine.

“The charges against Eric and Ryan Jensen do not imply that they knew, or even should have known, that the cantaloupes had been contaminated,” said a statement issued by their lawyer. “As they were from the first day of this tragedy, the Jensens remain shocked, saddened, and in prayerful remembrance of the victims and their families.”

“This is an unprecedented thing, it’s not the norm,” said Amanda Hitt , an attorney with the Government Accountability Project, a whistleblower-supporting group in Washington, D.C. Hitt’s group favors more prosecutions in consumer cases when the evidence supports it.

Civil lawsuits by victims are not enough to persuade food companies to clean up, Hitt said. They build those costs into their plans with insurance and other measures. Prosecutions, she said, “could increase the security of the system and make a healthier system, and ultimately protect consumers.”

Food safety attorney Bill Marler of Seattle, who represents most of the victims of the listeria outbreak, praised the news but said prosecutors should consider going after the grocery stores and others.

“We will never have safe food from ‘farm to fork’ until the entire chain of distribution is held accountable for the food that they make a profit from.”

No public information had surfaced that Ryan or Eric Jensen knew they had any safety problems before cantaloupe was shipped to stores in the summer of 2011. Experts who have watched past food safety outbreaks said federal prosecutors do not usually pursue a case unless there is clear evidence that owners knew of or ignored obvious signs of contamination.

Produce, food safety culture and Brad Pitt

Posted on June 13, 2013 by Douglas Powell

Brad Pitt toured Sydney Harbour and tried Vegemite, first time for the Missouri native.

I got to hang out at Darling Harbor in Sydney and chat with some Australian produce folks; some wanted to talk more, some wanted to throw me in the Harbour with concrete shoes.

Amy, my lovely and loving partner, quipped, “a typical Powell talk. Now get Sorenne ready and let’s go” or something like that.

(She’s actually a great counselor for my whines, anxieties and insecurities.)

I was speaking at the Australian Produce Marketing Association gabfest about food safety culture stuff.

I asked the delegates if they enjoyed the raw sprouts on their salad the night before, stated how many times I go to food safety things and get served raw sprouts (even in my own university) and suggested why that may not be a great idea.

(30 minutes after I was done talking, yet another sprout recall, this time Salmonella in Canada.)

I told them how we took the kid out to get some chips along Darling Harbor, and since they were served with aioli, I asked the server if the aioli was made with raw eggs (because Australia has a raw egg problem, most recently 140 sick in Canberra). She didn’t know but asked the chef, and the answer was yes.

I asked for tomato sauce instead (ketchup).

I complimented the Expo Center for having paper towels in the bathrooms, a rarity in Australia, but that the water flow was almost non-existent and two-out-of-three sinks did not respond to the hand activation (vigorous water flow, rubbing and the friction of drying with paper towel are the key components of good handwashing).

I told them about a whole bunch of outbreaks, and one grower said I used scare tactics, and I said 33 people dying from eating rock melon (cantaloupe) wasn’t really a scare tactic, just what’s out there.

Like the 99 now sick from Hepatitis A in organic frozen berries.

I talked about food safety culture, tools like infosheets, repeated, rapid, reliable and relevant messages, about Frank and Chris and Ben and Amy and how they had all influenced my thoughts on the topic, but that to really seal the culture deal, growers and retailers had to brag about it.

I talked about the cantaloupe growers in California who have adopted some mandatory audit-inspection things, and all the problems and outbreaks that happen with places that have audits and inspections, and that big boys and girls take care of their own problems and get help when they need it.

I said how disappointed I was that as a consumer, there will be no label on these inspected cantaloupe, so as a consumer, I have no way of knowing whether a particular grower had even thought about microbiological food safety or was any good at it.

I tried to be triumphant and said, this isn’t a crisis, it’s an opportunity, for all you good Australian growers to get ahead of the curve, put in place the data collection and risk management efforts, the food safety culture, and go brag about it.

All the usual stuff.

And largely, the usual response.

I’m thankful for the opportunity to chat with growers and retailers – I always liked that – and thankful for the opportunity to clarify in my cobwebs a few things about what I should be doing.

But I’m no Brad Pitt.

I don’t want to be.

And get your finger out of the Vegemite. You don’t know where that finger’s been.

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