Walmart settles cantaloupe cases, other settlements still being negotiated

News & Blog

Article reprint:  by Tim Linden, The Produce News | May 14, 2014
On Tuesday, May 13, Walmart announced through notices to the courts that it had reached settlement agreements on 23 cases involved in the 2011 Listeria outbreak tied to cantaloupes from Jensen Farms in Colorado.
In that food borne illness outbreak, 33 people died and 157 were sickened after eating cantaloupes that were subsequently traced to Jensen’s Colorado farm and packingshed. Jensen subsequently filed bankruptcy and went out of business.
Seattle attorney Bill Marler, who specializes in food-contamination cases, ultimately filed 66 cases related to the deaths and illnesses. On Wednesday, May 14, he told The Produce News that of those cases more than 30 involve Kroger or Kroger banners, 23 involved Walmart and the rest were with other retailers or foodservice outlets. Besides naming the retailers as responsible parties, the lawsuits also name Frontera Produce and Primus Labs.
Marler said he is hopeful that the Walmart settlement will lead to similar settlements with the other defendants within 60 days. He said the three years it has taken to resolve these cases is unusually long, but has revolved around typical issues of what is the value of these deaths and illnesses and what percentage should each defendant pay.
He expressed confidence that agreements would be reached with Kroger and Frontera relatively quickly. He indicated that current settlement negotiations center around how much is just compensation as opposed to whether there is liability.
“There is no question that they are liable,” he said referring to the defendants that have not settled yet. “There is no doubt the Jensen Farms cantaloupes caused the illnesses and deaths and the chain of distribution is clear. They just need to step up and take responsibility.”
Marler said retailers and others along the supply chain taking financial responsibility in such cases is not precedent-setting. He said he has been trying these cases for 20 years and has won more than $600 million in compensation for victims of food contamination, and everyone along the supply chain, including consumers, have a share of the responsibility, and that is how courts have ruled and cases have been settled for years.
Marler was less certain that Primus Labs would settle its liability through negotiations and said it was possible that Primus’ culpability would be decided by a jury. He called the auditor element the precedent-setting aspect of this case.
“In 20 years I have never sued an auditor before,” he said.
Marler explained that typically an audit is conducted months prior to the outbreak, so it is difficult to blame an auditor. In the Jensen case, Marler said Primus Lab was conducting an audit as the contaminated melons were being put into commerce. He said Primus has argued in court that the cases against them should be thrown out as the auditor’s responsibility is to their client (typically the farm in question) and not to consumers.
“They have been trying to dismiss these lawsuit and have not been successful,” Marler said. “Judges have said this issue can go to a jury.”
The attorney said that while he is hopeful Primus will also step up and take responsibility, he believes it is “highly likely” that aspect of the cases will go to trial and ultimately be decided by a jury.
As far as lessons to be learned from the Jensen case, Marler said everyone along the distribution chain “must stay ahead of the curve” and pay attention to bacteria and viruses, even those that haven’t posed a problem before.
He said two years prior to the Listeria outbreak from Jensen’s cantaloupes, no one associated Listeria with cantaloupes but after the fact observers understood how it happened. In food-safety issues, he said that “you have to be able to look around the corner” and see what’s coming.
He did say greater attention to food-safety concerns by the fresh produce industry has resulted in fewer outbreaks and fewer lawsuits.
“The Leafy Greens Marketing Agreement has been a huge success,” he said. “We have not seen the large-scale outbreaks in leafy greens [since it was enacted] that we saw from 2000 to 2006.”
In the 23 Jensen Farms cases that Walmart settled, a confidentiality agreement was part of the settlement and so the dollar amounts of the settlements were not revealed.
SOURCE:  The Produce News – May 14, 2014


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