The 2011 Jensen Farms listeria outbreak involving cantaloupes continued to affect fresh produce news in 2014, with the lawsuit fallout including Wal-Mart, Kroger and PrimusLabs.

Jan. 13
PrimusLabs blames Jensen Farms, Frontera for listeria outbreak
By Coral Beach, Staff Writer

7. Jensen Farms listeria lawsuitsPrimusLabs Corp. is seeking dismissal of a civil case filed by cantaloupe growers Eric and Ryan Jensen, instead placing blame on the brothers and distributor Frontera Produce.

The case involves a 2011 listeria outbreak that left 33 people dead, and which was traced to the Jensens’ Holly, Colo., farm.

“The natural and probable cause of Jensen’s damages was its production, distribution and eventual sale and consumption of the contaminated cantaloupes. As such, the cause of Jensen’s damage was outside Primus’ obligation or ability to control,” the Santa Maria, Calif.-based food safety audit company said in its motion to dismiss.

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.

Last year the Jensens signed the case over to the victims, and any damages awarded will be paid directly to them. Food safety and personal injury attorney Bill Marler is handling the case against PrimusLabs.

There are another 66 lawsuits pending across the country seeking damages from retailers, including Wal-Mart and Kroger, who handled the fruit; Marler represents 45 of those plaintiffs. He was scheduled to meet with the retailers in Phoenix Jan. 9.


Jan. 20
Jensens seek probation; PrimusLabs denies liability
By Coral Beach, Staff Writer

Cantaloupe 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 Corp., 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, 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. 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.

PrimusLabs subcontracted the Jensens’ 2011 audit to Rio Hondo, 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 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.”

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 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 (PrimusLabs’) own guidelines, the audit was to be immediately terminated” if the packinghouse was not operating in a normal fashion, the Jensens contend.


Feb. 3
Jensens avoid jail in listeria case; FDA on alert
By Coral Beach, Staff Writer

As two Colorado cantaloupe growers begin probation for a deadly 2011 listeria outbreak, federal officials say they will move forward with new food safety rules and use their full power to enforce them.

Eric and Ryan Jensen, owners of Jensen Farms, Granada Colo., were the first growers to face this kind of criminal foodborne pathogen case. They each pleaded guilty in 2013 to six federal misdemeanors of introducing adulterated food into the supply chain.

A federal magistrate in Denver sentenced them Jan. 28 to each serve six months home detention and five years probation.

Other growers could face similar situations, based on a comment from Spencer Morrison, the Food and Drug Administration’s acting special agent in charge of the agency’s criminal investigation. Spencer assisted the U.S. Justice Department with its case against the Jensens.

The FDA will continue to use its powers to ensure food safety regulations and laws are followed, Morrison said in a statement issued by the U.S. Attorney’s Denver office after the Jensens’ sentencing.

The agency continues to stress prevention as its weapon of choice, however.

“At FDA our goal is to continue to move forward on the ... rules, so that we can work with farmers and industry to prevent tragic outbreaks like this from happening in the first place,” said Doug Karas, public affairs specialist with FDA’s Coordinated Outbreak Response and Evaluation Network.

In addition to their home detention and probation, the Jensens must each pay $150,000 in restitution to the victims of the listeria outbreak — $25,000 for each of the six counts. They argued against paying restitution because they may be found liable for damages in civil cases filed by victims.

The 2011 outbreak killed as many as 40 people and sickened almost 150 others in 28 states, according to the assistant U.S. Attorney Jaime Pena, who prosecuted the case.

The Jensens could have each faced up to six years in prison and each been fined $1.5 million.

“No fine is imposed because the defendants have no ability to pay a fine,” according to the sentencing order from Magistrate Judge Michael E. Hegarty.

Hegarty’s sentence order came after the U.S. Attorney’s office and officials from the federal probation and parole office recommended probation.

The brothers requested probation, saying they had no intent to harm anyone. They also contend justice has been served because new food safety guidelines have been implemented in the industry.

According to their request, the federal officer who wrote their presentence reports did not find any evidence showing the brothers were aware their operation was substandard.

The brothers’ probation request also reference their federal lawsuit against SantasMaria, Calif.-based Primus Group Inc.

That case states the Jensens would not have shipped the tainted cantaloupe if their operation had not received a “superior” score of 96 out of 100 when a Primus contractor audited it just before the 2011 season.

The brothers signed their case against Primus over to the 66 listeria victims and their families who have filed civil cases.


Feb. 24
Wal-Mart wants damages in cantaloupe listeria case
By Coral Beach, Staff Writer

7. Jensen Farms listeria lawsuitsWal-Mart Stores Inc. not only contends is has no liability in the 2011 cantaloupe-related listeria outbreak, but the retailer says it was damaged by the outbreak and wants food safety auditors and others to reimburse it for the cantaloupe and legal expenses.

In a third-party complaint filed in federal court in Wyoming, the Bentonville, Ark., retailer names grower Jensen Farms, Granada, Colo.; distributor Frontera Produce Ltd., Edinburg, Texas; and food safety auditor Primus Group Inc., Santa Maria, Calif.; and its subcontractor Bio Food Safety, Rio Hondo, Texas.

The wrongful death case in Wyoming is one of 66 state and federal cases pending nationwide that were filed by victims and relatives of the listeria outbreak. The cantaloupe grown by brothers Eric and Ryan Jensen caused at least 33 deaths and 147 illnesses across 28 states, according to the Centers for Disease Control and Prevention.

Both Jensens pleaded guilty to federal criminal misdemeanors and were sentenced to six months of home detention and five years of probation.


May 19
Wal-Mart settles listeria lawsuits
By Coral Beach, Staff Writer

All 23 civil cases against Wal-Mart Stores Inc. related to the 2011 listeria outbreak linked to cantaloupe it sold have been settled out of court.

Another 40 civil cases filed against Cincinnati-based The Kroger Co. by its customers or relatives of customers who died in the outbreak remain pending in state and federal courts, said food safety attorney Bill Marler.

Details of Wal-Mart’s settlements are not public record. Individuals receiving payments were required to agree to not reveal financial or other details of the settlements.

“We’re pleased that both sides could come together to resolve the case,” said Marler, who is representing 46 of the 66 people who have filed civil cases in relation to the listeria outbreak linked to cantaloupe from Jensen Farms, Holly, Colo.

“While we can’t discuss the details or terms of the (Wal-Mart) settlement, we are pleased with the resolution, which was in everyone’s best interest.”

Wal-Mart’s national director of media relations Randy Hargrove also declined to discuss details of the settlements.

“We’re happy that both sides could resolve the cases. We can’t discuss the details or terms of the settlemen. However, we are pleased with the resolution which was in everyone’s best interest,” Hargrove said.

The retailer is filing notices of settlement in the individual courts where the 23 cases were filed.

Marler said by settling the cases, Bentonville, Ark.-based Wal-Mart is out of the picture as far as the victims’ lawsuits are concerned. The retailer had filed cross-claims against other parties, including distributor Frontera Produce and food safety auditor Primus Group Inc., but those cross claims no longer apply since Wal-Mart reached settlements with the plaintiffs in the cases.


June 9
Kroger sues PrimusLabs over Jensen cantaloupes
By Coral Beach, Staff Writer

7. Jensen Farms listeria lawsuitsThe Kroger Co. contends Primus Group Inc. has primary liability in the 2011 listeria outbreak traced to cantaloupe from Jensen Farms.

In a cross claim filed June 2 in a Colorado state court, the country’s second largest retailer names Primus and distributor Frontera Produce Ltd. as defendants in the death of a Colorado man who contracted a listeria monocytogenes infection after eating cantaloupe from the Holly, Colo.-based Jensen.

“Primus misrepresented the conditions and practices at Jensen Farms ranchlands and packinghouse by giving it a superior rating and high score despite the existence of conditions and practices that should have caused a failure of the facility,” according to Kroger’s claim.

Primus has 30 days to respond, but the food safety auditing company has maintained its lack of liability in dozens of cases filed by victims and relatives and in a federal case filed by brothers Eric and Ryan Jensen, owners of the bankrupt cantaloupe operation.

The 2011 listeria monocytogenes outbreak traced to the Jensens’ cantaloupe resulted in 33 deaths and another 147 illnesses across 28 states, according to the Centers for Disease control and Prevention.

The Jensen brothers each pleaded guilty in January to six federal criminal misdemeanors and are each serving six months home detention to be followed by five years’ probation.

An investigation by the Food and Drug Administration found multiple food safety problems — including listeria contamination — at the Jensen packing facility. The agency also noted that its guidance on how to harvest and handle cantaloupe was not being followed at Jensen Farms.

In its claim, Kroger and subsidiary Dillons contend that Primus should have known retailers would rely on the 96% superior audit rating given to the Jensens’ operation as meaning their cantaloupe were safe to eat.


Nov. 10
Judge won’t let PrimusLabs off the hook in listeria cases
By Coral Beach, Staff Writer

7. Jensen Farms listeria lawsuitsA Colorado judge has refused to dismiss at least 24 cases filed against PrimusLabs by victims and their families related to the 2011 listeria outbreak involving cantaloupe from Holly, Colo.-based Jensen Farms. The judge also refused to dismiss crossclaims filed against PrimusLabs by Edinburg, Texas-based distributor Frontera Produce Ltd. and Dillon’s, one of The Kroger Co. banners.

Judge Charles Pratt filed orders Oct. 28 requiring the cases to move forward. The cases are among 66 victim cases pending in courts across more than a dozen states.

At least 147 people became sick and at least 33 died because of listeria infections after eating the Jensens’ cantaloupe, according to the Centers for Disease Control and Prevention. The CDC estimates at least 10 other people who had the outbreak strains of listeria had eaten the Jensen cantaloupe, but health officials had not confirmed the link when filing out death certificates.

The victims, their families, Frontera Produce, Cincinnati-based The Kroger Co. and its subsidiaries, and cantaloupe growers Eric and Ryan Jensen all contend in various court cases that Santa Maria, Calif.-based Primus Group Inc., doing business as PrimusLabs, should be held partly responsible.

A contract auditor hired by PrimusLabs conducted a food safety audit at the Jensens’ packing facility and farm days before the 2011 harvest began. He gave the operation a “superior” rating of 96%. PrimusLabs contends it was not hired to do any microbial testing and that the cantaloupe would have been sold and eaten regardless of the audit score.

The victims, growers, distributor and retailers contend the cantaloupe would not have been sold and consumed if the auditor had failed the Jensen operation because buyers required the grower to be PrimusLabs certified. They also contend PrimusLabs has an obligation to the end-users — the consumers — when it conducts food safety audits.

Judge Pratt sided with the plaintiffs, saying PrimusLabs “knew or reasonably should have known that until it completed the audit the cantaloupe would not be released for sale to the public.”