November 2011

I am on a plane (delayed flight) finally bound to Chicago via Minneapolis – tell me why I am going to a Food Litigation Conference in Chicago in November?  Last week we filed a wrongful death lawsuit on behalf of a woman who died before her time – from eating Listeria-tainted cantaloupe.  Here is my friend Tom Karst’s story from the Packer:

Third-party auditors Primus Group Inc. and Bio Food Safety Inc. have been named in a lawsuit seeking compensation for survivors of a victim of the foodborne illness linked to cantaloupe from Jensen Farms in Colorado. Other defendants in the lawsuit are Jensen Farms and Frontera Produce Ltd.

Seattle food safety litigator Bill Marler filed the suit in late November in the Fifth District Court in New Mexico on behalf of plaintiffs John Wilcox and Robert Wilcox, who are the children of the deceased, Florence Wilcox.

In an interview with The Packer in early November, Marler had said it was his intent to bring retailers and third-party auditors into various lawsuits related to the listeria outbreak because the number of victims — 129 (actually 139), including 29 who have died (and 1 miscarriage) — would overwhelm the expected available funds from Jensen Farms and Frontera.

“(Bringing in retailers and third-party auditors) is the only way that the victims are going to be fairly treated,” he said at the time.

Bentonville, Ark.-based Wal Mart Stores Inc. was previously named as a defendant in a lawsuit Marler filed in Colorado.

Robert Stovicek, president of Santa Maria, Calif.-based PrimusLabs, e-mail response declined to comment on the litigation.

Jim Mulhern, spokesman for Edinburg, Texas-based Frontera Produce, also said that company could not discuss the litigation.

“We are eager to provide our defense in court and will do so at the appropriate time,” Mulhern said in an e-mail statement.

The New Mexico lawsuit said Primus used Texas-based Bio Food Safety Inc. as a subcontractor to conduct the audit of Jensen Farms. The lawsuit said Bio Food Safety auditor James Diiorio conducted an audit at Jensen Farms on about July 25, which the lawsuit said was about one week before the Centers for Disease Control and Prevention identified the first victim of the cantaloupe listeria outbreak.

The lawsuit said the audit conducted by Diiorio on behalf of defendants Primus and Bio Food Safety found many of the same aspects flagged by the FDA in a September inspection were scored as “total compliance” in the third-party audit. In its report, the FDA noted several problems related to Jensen Farms, including pooled water on the packing facility floor, equipment design and postharvest practices.

“Mr. Diiorio’s various acts and omissions of negligence, in conjunction with the negligence of Primus in selecting, approving and monitoring Bio Food Safety as auditor of Jensen Farms’ facility, and with Bio Food Safety’s negligence in hiring, training and supervising Mr. Diiorio as auditor, constituted a proximate cause of the decedent’s listeriosis illness and death,” the lawsuit said.

Screen Shot 2011-11-28 at 4.24.28 PM.pngThis is the third lawsuit the firms have brought against New Jersey-based Turkish pine nut importer Sunrise Commodities.

The complaint (#11CV6581T), filed in New York Federal District Court in Rochester, alleges that on October 18, 2011 Melissa Catalino and her six-year-old daughter consumed pine nuts that were purchased from a local Wegmans Food Mart. By October 21, the child had developed gastrointestinal symptoms that intensified for several days until she required emergency medical care. Ms. Catalino also developed severe symptoms of Salmonella infection and missed several days of work. Both mother and daughter are still recovering from their illnesses. The complaint further states that health officials have notified the family that both illnesses have been linked to a 43-person Salmonella outbreak tied to Turkish pine nuts.

With two raw milk E. coli O157:H7 outbreaks in the news (one in Washington and one in California) that have sickened at least eight – five with Hemolytic Uremic Syndrome, I thought an updated chart of over a decade of raw milk and raw milk cheese outbreaks would be timely.  Download: Outbreaks from Unpasteurized (Raw) Milk and non-­Mexican Style Raw Milk Cheeses, United States, 1998-­2011.

Screen Shot 2011-11-27 at 4.46.26 PM.png

Over Thanksgiving week, Cozy Vale Creamery’s raw milk products were recalled because they were linked to three E. coli O157:H7 illnesses and after environmental swabbing at the facility discovered that locations in the milking parlor and processing areas were contaminated with the E. coli O157:H7 bacteria.  At least two of those cases were children who developed Hemolytic Uremic Syndrome.  Cozy Vale Creamery’s whole and skim milk and cream were distributed through seven retail outlets in Pierce, Thurston and King counties. The products were sold retail at the farm store and at Marlene’s Market in Tacoma, two Olympia Food Co-Op locations in Olympia, Olympia Local Foods in Tumwater, Yelm Co-op in Yelm, Mt. Community Co-op in Eatonville and Marlene’s Market in Federal Way.

In November 2011, the California State Veterinarian placed raw milk products from Organic Pastures dairy in Fresno, California under a quarantine order.  The quarantine order came following a notification from the California Department of Public Health of a cluster of five children who were infected, from August through October, with the same strain of E. coli O157:H7. These children are residents of Contra Costa, Kings, Sacramento, and San Diego counties. Interviews with the families indicate that the only common reported food exposure is unpasteurized (raw) milk from Organic Pastures dairy. Three of the five children were hospitalized with hemolytic uremic syndrome, a serious condition that may lead to kidney failure.  Surveys indicate that only about three percent of the public report drinking raw milk in any given week so finding 100% of these children drank raw milk and the absence of other common foods or animal exposures indicates the Organic Pastures raw milk is the likely source of their infection.

Raw Milk Outbreaks have occurred in the State of Washington before.  In November 2005, at least 18 people were sickened in an outbreak linked to the consumption of raw milk from Dee Creek Farm, located near Woodland, Washington.  The farm was not licensed to sell raw milk, and during its investigation into the outbreak, the Washington State Department of Agriculture (WSDA) noted several milk processing violations that would have been addressed during the licensing process had Dee Creek applied for the license.   In addition, sample testing confirmed the presence of E. coli O157:H7 in two milk samples provided by Dee Creek Farm and in five environmental samples taken from Dee Creek Farm milk-barn areas by investigators.  In the Dee Creek outbreak, five Clark County, Washington, children were hospitalized, with two developing Hemolytic Uremic Syndrome and requiring critical care and life support for kidney failure as a result of their E. coli infections.

In September 2006, two young children were infected by E. coli O157:H7 as a result of consuming raw goat’s milk produced and sold by Grace Harbor Farm.  Multiple environmental specimens collected at the farm during the course of the outbreak investigation tested positive for the same strain of E. coli O157:H7 that infected the two young children.

In November 2009, at least three people were infected by raw milk produced and sold at Dungeness Valley Creamery in Sequim, Washington.  In its investigation into the outbreak, the Washington State Department of Agriculture did not isolate E. coli bacteria in the dairy’s milk, but the WSDA did locate E. coli at the dairy.

I have been keeping close track of both raw and pasteurized milk and cheese outbreaks in the last two years – You can download it here: Outbreaks, Illnesses and Recalls Linked to Raw (Unpasteurized) and Pasteurized Dairy Products, United States January 2010 – November 2011.

Screen Shot 2011-11-27 at 12.53.19 PM.png

For more information about raw milk outbreaks, see Real Raw Milk Facts.

CCMIN_Mark-Bittman-03_s4x3_al.jpgHere is part (and surprisingly) said he was thankful for:

There are days when it seems — both in and out of the food world — that Everything Is Going Wrong. That makes it easy enough to complain, and I’m not alone in doing so routinely. Nothing tastes the way it used to. Even pricey restaurants have lost their glow. Quality is shot. People die from eating melons. The dominance of hyper-processed, industrialized food (and, more to the point, food-like products) is spreading globally, and we’re all gaining weight faster than ever, while wrecking the planet.

Nevertheless, it’s nearly as easy to find signs of hope — lots of them — as well as people and organizations who’ve been prodding American food back on a natural, sustainable, beautiful track.

17. And to Bill Marler, who, as the leading food safety attorney in the country, is trying to keep the things we grow from killing us.

Sitting at the Marler Clark office this day after Thanksgiving makes me thankful of being thanked – even being No. 17.  And, of course a post would not be complete without some food safety advice – “Enjoy those Thanksgiving leftovers, but don’t let them linger.”

Happy Thanksgiving.

Myth:

Organic Pastures and the Weston A. Price Foundation continue to repeat that the 2006 E. coli O157:H7 Raw Milk Product Outbreak was caused by Spinach.

Fact:

– 2006 Organic Pastures outbreak, illness onsets ranged from 9/6 to 9/24

– 5 patients had definite exposure to raw milk or raw milk products produced by Organic Pastures; the 6th patient denied drinking Organic Pastures milk but his family routinely consumed OP raw milk.

  • 2 raw whole milk
  • 2 raw skim milk
  • 1 raw colostrum

– 5 patients with culture confirmation were PFGE matches to each other. Final report describes the PFGE patterns as “new to the PulseNet database” and they “differed markedly from the patterns of the concurrent E. coli O157:H7 outbreak strain associated with spinach consumption.”

– 4 patients reported consuming leafy salad greens of any kind

– 4 patients reported consuming lettuce

– 1 patient consumed bagged spinach on two occasions at restaurants

– 1 patient consumed bunched spinach (not bagged Dole)

– 2 patients consumed alfalfa sprouts

– 1 patient consumed ground beef

– No common restaurants

– No other common exposures

Reference:

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5723a2.htm

Environmental testing also positive.

Cozy Raw Milk.jpgCozy Vale Creamery’s raw milk products are being recalled because they may be contaminated with E. coli O157:H7 after being linked to three illnesses.

The Cozy Vale Creamery’s whole and skim milk and cream are distributed through seven retail outlets in Pierce, Thurston and King counties. The products being recalled all have sell-by dates of December 6 or earlier.

The recall was begun after Washington State Department of Agriculture environmental swabbing at the facility discovered that locations in the milking parlor and processing areas were contaminated with the E. coli O157:H7 bacteria.

Three illnesses have been reported in Cozy milk customers since August.

They products were sold retail at the farm store and at Marlene’s Market in Tacoma, two Olympia Food Co-Op locations in Olympia, Olympia Local Foods in Tumwater, Yelm Co-op in Yelm, Mt. Community Co-op in Eatonville and Marlene’s Market in Federal Way.

According to the dairy’s advertising:

Cozy Vale Creamery is located on 76 acres in the hills of Tenino, Washington. We are a licensed Grade A Raw Milk Dairy. At our micro dairy, we milk several different breeds of milk cows that we find are more suitable to thriving on grass pastures. Jersey’s, Milking Shorthorns, Ayrshire’s & Brown Swiss cows graze lush pastures all year long.

Cozy Vale Creamery is a family-owned small farming enterprise. The farm produces a variety of agricultural products including, grade A raw cows milk, grass fed meats (angus steer, katahdin lamb). The family is dedicated to the humane treatment of animals and strive to be responsible stewards of the land.

All natural, no pesticides or herbicides on fields, no antibiotics or hormones used. Mainly grass fed with tiny amounts of grain fed.

Outbreaks, Illnesses and Recalls Linked to Raw (Unpasteurized) and Pasteurized Dairy Products, United States January 2010 – November 2011

Screen Shot 2011-11-23 at 3.09.11 PM.pngBefore her Listeriosis illness, the decedent, Florence Wilcox, was a 96-year-old resident of Hobbs, Lea County, New Mexico. Ms. Wilcox lived independently and remained very active. In fact, she was named 2011 “Patron of the Year” at the local public library. Ms. Wilcox frequently purchased and ate cantaloupes. On at least one occasion in the weeks before the onset of her Listeriosis illness, Ms. Wilcox purchased and consumed a cantaloupe that had been manufactured, distributed, and sold by Defendants Jensen Farms and Frontera. Onset of symptoms related to Ms. Wilcox’s Listeriosis illness occurred on or about September 8 with fever and chills, bloody stools, weakness, and general malaise. A neighbor drove Ms. Wilcox to Lea Regional Medical Center, where she remained for approximately 1 day. While at Lea Regional Medical Center, Ms. Wilcox gave a blood sample that would ultimately test positive for one of the strains of Listeria implicated in the cantaloupe Listeria outbreak, described previously. Ms. Wilcox’s condition continued to deteriorate while she was hospitalized at Lea Regional, and her physicians ultimately decided that she should be transferred, by helicopter life-flight service, to Covenant Medical Center in Lubbock, Texas. At Covenant Medical Center, Ms. Wilcox was first treated in the regular hospital, but soon was admitted into the intensive care unit. She developed extremely high fevers, her speech became fragmented, and she exhibited obvious pain and discomfort. Ms. Wilcox endured many diagnostic procedures throughout her hospitalization at Covenant Medical Center. Ultimately, the results of a spinal tap showed that she had developed meningitis. Ms. Wilcox died on September 15, 2011.  (Download Complaint PDF)

According to the CDC, between April 1 to November 16, 2011, a total of 179 illnesses due to Salmonella Heidelberg with this PFGE pattern were reported in states where the “kosher broiled chicken livers” were distributed. The number of ill persons identified in each state the product is distributed to is as follows: New York (99), New Jersey (61), Pennsylvania (10), Maryland (6), Ohio (2), and Minnesota (1). Rhode Island and Florida have not identified any cases linked to this outbreak during this period. Among persons for whom information is available in in these states, ill persons range in age from <1 to 97 years with a median age of 13 years. Forty-nine percent are female. Among the 126 ill persons with available information, 25 (20%) have been hospitalized.

chickenlivers1-label.jpgEpidemiologic and laboratory investigations conducted by officials in local, state, and federal public health, agriculture, and regulatory agencies linked this outbreak to eating “kosher broiled chicken livers” from Schreiber Processing Corporation (doing business as Alle Processing Corporation/MealMart Company), and chopped chicken liver prepared from this product. These “kosher broiled chicken livers” are sold at retail stores and may be used as an ingredient in other prepared foods. These products appear to be ready-to-eat, but are in fact partially cooked, and therefore need to be fully cooked before eating. Consumers may have incorrectly thought the use of the word “broiled” in the label meant the chicken liver was ready-to-eat; however, these chicken livers must be fully cooked before eating.

Michael Booth and Jennifer Brown stepped into a conflicted area in their story today – “Criminal charges hard to pin on farm where listeria-tainted cantaloupes originated” – although the headline writers got it wrong.

Although in my opinion the likelihood of felony charges is remote, misdemeanor charges are certainly a possibility.  Here is the law:

Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce. Any person who commits a prohibited act violates the FDCA. A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable by not more than three years or fined not more than $10,000 or both.

A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation. Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $1,000, or both.

But another question is fairness.  Why criminal sanctions against Jensen Farms or Frontera when we have let many, many bad actors escape?  As I said to Mr. Booth and Ms. Brown:

“It would seem unfair to go after the Jensens as an example when you haven’t gone after anybody in 20 years,” Marler said.

But prosecutions even on lighter misdemeanor charges would send a message to large food companies to focus on safety, he added.

“When companies change behavior is when they are held up to public scrutiny,” he said.

My point was that, although there have been a few prosecutions in the last 20 years (some listed in the Denver Post story), and investigations are still ongoing in the Peanut Corporation of America and Wright County Egg Salmonella cases, most cases of foodborne illness are never prosecuted for felony or misdemeanor as I said in a Op-ed on Food Safety News a few months ago – “Publisher’s Platform:  Private AG.” 

The question is who to prosecute and when to start?  Prosecuting the Jensens or Frontera when others have walked seems to me unfair, despite 30 deaths.  But, perhaps this outbreak is a good place to start?

I do take slight issue with a sentiment attributed to me in the Post:

The Jensens’ actions don’t appear negligent, said Seattle attorney Bill Marler, representing many cantaloupe victims, but their distributor and auditor, Frontera and PrimusLabs, should tighten standards.

What I said (or intended to say) is that negligence is not the issue – Jensen Farms is strictly liable (as is Frontera) for the mounting illness and death toll due to listeria-tainted melons.  Here is the law:

Strict products liability is a “term of art and is intended to reflect the idea that products liability is a discrete domain of tort law, borrowing from both negligence and warranty law. However, it is not fully congruent with traditional tort or to contract law. Strict products liability does not rest on negligence principles alone; rather, it “is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.” In strict products liability cases, “the focus is on the nature of the product rather than the conduct of either the manufacturer or the person injured.” Carter v. Brighton Ford, Inc. (Colo. App. 2010).

Perhaps because all of the above is a bit difficult that prosecutors leave justice to civil litigation?  It does keep me busy.