Lawsuits filed against Primus Group Inc. of Santa Maria, CA, in connection with the 2011 distribution of Listeria-tainted cantaloupe produced at Jensen Farms in Colorado may very well put a finer point on the concept of "field to fork" responsibility when it comes to food distribution.
Recently, Walmart Stores Inc. filed a lawsuit against Primus in federal court in Wyoming. Attorney William Marler, a nationally recognized food-safety advocateand managing partner of the Seattle-based law firm Marler Clark, told The Produce News that he expects other major retailers named in lawsuits, among them The Kroger Co., may take similar action. Texas-based Frontera Produce Inc. previously filed cross suit against Primus.
A total of 66 lawsuits have been filed in the United States in connection with the case.
"Forty percent of the lawsuits are filed in Colorado," said Marler told The Produce News. He represents 46 clients, and 25 of these lawsuits stem from a death that resulted after consumption of the tainted product.
"The cases in Colorado have been consolidated for discovery purposes," Marler stated.
While there are no solid dates for trials connected with these lawsuits at the current time, Marler expects the cases will be set during 2014 and 2015.
"This is the first time I have sued an auditor," he went on to say. "Primus was auditing [Jensen Farms] when the outbreak began."
Primus has taken the position that it has no duty to end consumers and that there was no breach of contract. And finally, Primus is arguing that it has no control over sale or distribution of product.
The lawsuits are drawing intense scrutiny.
"It's like the perfect storm," Marler said. "Consumers rely on middle men to produce safe food."
The body of law relating to food inspection is 50 to 100 years old, Marler said. "The law doesn't catch up to the intelligence as we'd like it to."
He added that the law looks for clarity when it comes to an alleged mistake and harm done. Marler also said that part of this body of law provides government regulators with immunity from liability.
Marler said the heart of the current lawsuits stems from the issue of causation. "We're arguing the consumer becomes the third-party beneficiary [of third-party audits]," he explained. "Ultimately, the consumer gets harmed."
Primus has filed motions to dismiss in a number of jurisdictions. "They've won three, and we've won four," Marler said. "The courts are now seeing this for what it is."
Jensen Farms previously assigned its lawsuit against Primus to the victims represented by Marler. "[Primus] will never get a wiggle out of the Jensen lawsuit," Marler said.
He expects the cases to have an impact on the law when it comes to food inspection.
"Primus has taken the position they have no end duty," he explained. "Federal court is deciding that Primus does have a duty."
The other interesting aspect of the case affects retailers. Marler said retailers in some states have taken the position that they, too, have no responsibility to the consumer.
"It's going to be interesting to me to see how courts handle, with a straight face, how retailers handle food," he said.
Marler said unpaid medical bills are still piling up for people during the three years since the Listeria outbreak.
"Justice delayed is justice denied," he said. "We're going to push this to the very end."
Looking to the future, Marler expects this case will send ripples throughout the produce industry when it comes to the third-party audit process.
"It's the grease that skids a product from Point A to Point B," he noted.
While he does not see the third-party audit process going away, he does envision a need for additional certification to ensure that food is safe to consume.