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Marler: Jensen case ‘sending shockwaves through the produce industry’

On Nov. 20, Eric and Ryan Jensen, owners and operators of Jensen Farms in Holly, CO, officially assigned their lawsuit against PrimusLabs to Attorney William Marler, a nationally recognized food-safety advocate and managing partner of the Seattle-based law firm Marler Clark. The firm specializes in foodborne illness cases, and Marler represents 46 of the 64 victims of the 2011 Listeria outbreak traced back to tainted cantaloupes grown at Jensen Farms.

JensenUpdate5William MarlerDuring the outbreak, 33 people died and another 147 people were sickened in the United States.

“[This case is] sending shockwaves through the produce industry,” Marler told The Produce News on Nov. 22.

The assignment, made during an off-the-record meeting held at the federal courthouse in Denver, followed several months of discussion. “Jensen has given my clients that lawsuit,” Marler stated, adding that the assignment was taken in behalf of all 64 victims.

A lawsuit filed by Attorney Forrest W. Lewis sought five claims of relief for Jensen Farms. The claims against Primus include negligence; breach of contract; negligent hire; negligent misrepresentation; and unfair and deceptive trade practices.

Marler said a number of lawsuits have been filed in behalf of victims in 16 states. A total of 20 lawsuits have been filed in Colorado. “We’re in the long phase of litigation,” he noted.

In addition to PrimusLabs, Walmart, Kroger and Frontera Produce have been named as primary parties in lawsuits.

The relationship between manufacturers and consumers, and the degree to which victims have recourse to file claims varies from state to state. According to Marler, Primus has filed motions to dismiss in jurisdictions based upon not having a duty to consumers. “Even if Primus wins some motions to dismiss, they won’t get away. If nothing else, they will have to deal with the Jensen suit.”

Frontera Produce has also filed cross suits against PrimusLabs.

Marler said the third-party auditing industry has evolved largely unregulated. Historically, the meat industry had inspectors in every plant. “On the FDA side, that’s not the culture they grew up in,” he said of the fresh produce industry.

“Sure, there are great third-party auditors,” he said. But he added that inspection reports generated at the time of a severe outbreak can show a mismatch between inspection scoring and actual conditions at a facility, often leaving people to wonder “if the facility is the same.”

Marler, whose professional experience spans more than 20 years, said the Jensen case is the only one where a specific auditor has been named in a lawsuit. “There has to be a causation between the alleged failure of the inspection and the outbreak,” he stated. “[Primus] was there when the outbreak was happening.”