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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

It is time to Put Parnell Behind Bars!

I have developed a friendship with many of Stewart Parnell’s victims of the Peanut Corporation of America (PCA) Salmonella outbreak of 2009.  Many of them attended a press conference in 2011, where they asked why after two years Parnell was still free?  Re-reading internal emails from PCA from 2008 and 2009, I have to ask why too?

“Turn them loose,” Parnell had told his plant manager in an internal e-mail disclosed at the House hearing. The e-mail referred to products that once were deemed contaminated but were cleared in a second test last year.

Screen Shot 2012-04-16 at 9.09.00 PM.pngParnell ordered products identified with salmonella to be shipped and quoting his complaints that tests discovering the contaminated food were “costing us huge $$$$$.”

Parnell insisted that the outbreak did not start at his plant, calling that a misunderstanding by the media and public health officials. “No salmonella has been found anywhere else in our products, or in our plants, or in any unopened containers of our product.”

Parnell complained to a worker after they notified him that salmonella had been found in more products. “I go thru this about once a week,” he wrote in a June 2008 e-mail. “I will hold my breath ………. again.”

See, all emails, documents and Congressional testimony.

typhimurium_042909.jpgAccording to the CDC, 714 persons infected with the outbreak strain of Salmonella Typhimurium were reported from 46 states. The number of ill persons identified in each state was as follows: Alabama (2), Arizona (14), Arkansas (6), California (81), Colorado (18), Connecticut (11), Florida (1), Georgia (6), Hawaii (6), Idaho (17), Illinois (12), Indiana (11), Iowa (3), Kansas (2), Kentucky (3), Louisiana (1), Maine (5), Maryland (11), Massachusetts (49), Michigan (38), Minnesota (44), Missouri (15), Mississippi (7), Montana (2), Nebraska (1), New Hampshire (14), New Jersey (24), New York (34), Nevada (7), North Carolina (6), North Dakota (17), Ohio (102), Oklahoma (4), Oregon (15), Pennsylvania (19), Rhode Island (5), South Dakota (4), Tennessee (14), Texas (10), Utah (8), Vermont (4), Virginia (24), Washington (25), West Virginia (2), Wisconsin (5), and Wyoming (2). Additionally, one ill person was reported from Canada.

The CDC went on to state that among the persons with confirmed, reported dates available, illnesses began between September 1, 2008 and March 31, 2009. Patients ranged in age from <1 to 98 years. The median age of patients was 16 years which means that half of ill persons were younger than 16 years. 21% were age <5 years, 17% were >59 years. 48% of patients were female. Among persons with available information, 24% reported being hospitalized. Infection contributed to nine deaths: Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2).

It really is time, past time, for the U.S. Attorney’s office to seek justice.  It has the tools.

Parnellfifth.jpgCongress passed the Federal Food, Drug, and Cosmetic Act in 1938 in reaction to growing public safety demands. The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles from entering interstate commerce. Under section 402(a)(4) of the Act, a food product is deemed “adulterated” if the food was “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” A food product is also considered “adulterated” if it bears or contains any poisonous or deleterious substance, which may render it injurious to health. The 1938 Act, and the recently signed Food Safety Modernization Act, stand today as the primary means by which the federal government enforces food safety standards.

Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability. Provisions for criminal sanctions are clear:

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.

The legal jargon aside, Stewart Parnell, as a producer of food who sold adulterated food, can (and should) face fines and jail time.  If not him, then who?  If not now, then when?

  • Jeff Almer

    We all have been biding our time awaiting for word that the hammer has fallen on the immoral entrepreneur. The investigation stands at 39 months with the clock standing at another 21 months before the statute of limitations runs out.
    In three weeks there will be people celebrating Mother’s Day. My family unfortunately will just wake up to another day and another harsh reminder that there is only the memory of our mom. As a kid and then in later years, you could not ask for a better mom. She never told you how to live your life but rather supported her 5 kids in whatever their endeavors were. There will never be another Shirley Almer.
    Let’s hope and pray there will never be another Salmonella Stew and his blatant disregard for his customer’s health. The Justice Dept. could so much more for food safety than some of the legislation of the Food Safety Modernization Act ever could. If repulsive, loathsome people such as Parnell are actually punished for their greedy acts; that certainly gives pause to any other producer out there cutting corners and not giving a damn about the havoc they have wrought.
    I have heard from some people that are in more of a forgiving mood that maybe forgiveness is in order. I say to those that want to turn the other cheek, there will be no forgiveness for someone who does not ask for that goodwill. You have to understand that this person’s actions ever since that day have never been anywhere near an apology, contriteness, or regret. The only thing uttered out of the greedy pig’s mouth have been “I would apologize, but I don’t know how the government would perceive that”. A clue for you Stewie: The government may actually think you are human and not the son of Satan.
    Stewie has also bemoaned the fact that he is just “waiting for the government to drop” the investigation so he could get on with his own life. The facts are he is living his life. The life that his own free will has directed down this path. Hopefully Creative Snacks in North Carolina enjoys their cozy consulting relationship with this disgraced individual’s ‘expertise’.
    While I don’t cherish the last 39 months of anguish, actually thinking that justice will prevail and that in the end Stewie gets his deserved fate; I am prepared to wait until the statute of limitations has run out, if it means there is just one more tortured soul in this sordid mess. I have said this before and it certainly bears repeating; let’s hope that Stewart never contracts Alzheimer’s, because he deserves to never forget any moment of regret and angst that he has caused.
    Enjoy the upcoming Mother’s Day Zelda, that’s one hell of a kid you raised there. You must be so proud.

  • Randy Napier

    It is hard not to give up hope in our justice system. My Mother died (was murdered) in January of 2009 and our justice system, armed with the smoking gun (emails admitting to knowing) have yet to charge Stewart Parnell with anything. Now, unknown to many, I hear he is in the business again. Maybe the next group of deaths and sickened will be able to accomplish what apparently, we could not. You ask, “What is wrong with our country”? I say start looking at our justice system.

  • http://www.johnmunsell.com John Munsell

    Mr. Marler, you state in the 3rd from the last paragraph above “Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug or device into interstate commerce”. You also stated in the next-to-last paragraph above “Rather, a person may be convicted [of a misdemeanor conviction] if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation”.
    USDA/FSIS has declared E.coli O157:H7 to be an adulterant, and that the agency has a “Zero Tolerance” stand against the pathogen. Sounds admirable, doesn’t it! Well, how has FSIS played this issue out? FSIS declares H7 to be an adulterant, but only in ground beef and in boneless trimmings. But, and get this, FSIS does NOT consider H7 to be an adulterant when found on intact cuts, such as boxed beef which is sold to all retail meat markets, and which are also purchased by restaurants. FSIS foolishly contends that intact cuts may be surface-contaminated with H7. Therefore, H7 which are found on the surface of intact cuts are NOT adulterants! Go figure. And, FSIS allows intact cuts harboring E.coli to be shipped into commerce in containers proudly bearing the official USDA Mark of Inspection which states “USDA Inspected and PASSED”. Yes, USDA passes E.coli when is ONLY found on the exterior of intact cuts of meat. Therefore, when the downstream establishment (Safeway, Costco, Sizzlers, etc) further process these intact cuts, and E.coli are widely disseminated into the establishment and cross-contaminates other products, yup, you guessed it, FSIS holds the downstream establishment fully accountable for the presence of E.coli.
    Why do I state this? I suggest that FSIS is guilty of felony violations for allowing adulterated intact cuts to be shipped into commerce, by intentional agency design. Also, FSIS officials have positions of responsibility and authority, as you state above, allowing them to implement policies which would outlaw the shipment of adulterants into commerce. The act of claiming that E.coli O157:H7 are NOT adulterants when found on intact cuts merely provides the source slaughter plants full insulation from pathogen accountability, a veritable free pass from an agency refusing to protect public health.
    Government employees are human, just like Stewart Parnell, and can be guilty of illegal/inappropriate/irresponsible actions which imperil public health. I respectfully suggest that FSIS officials be put on the stand, and explain why they refuse to require slaughter plants to discontinue shipping E.coli O157:H7 into commerce. If FSIS officials persist in such heinous actions, they need to be removed from gov service, and replaced with folks whose primary focus is protecting the public from foodborne outbreaks, rather than protecting the liberty of slaughter plants to ship adulterated meat into commerce.
    USDA Sec Tom Vilsack has reiterated Pres Obama’s claim that gov must be transparent. Well, let’s start with FSIS. No better place to start than on the witness stand.
    This is a national scandal, which has been kept under wraps. Who cares?
    John Munsell

  • Larry and Karen Andrew

    “If not him, then who? If not now, then when?” That sums it up well. It seems to us that the Justice Department should at least communicate their intentions one way or another. At the time of the last press conference on the matter, Justice Department reps seemed to indicate a serious effort to build a case. Since that was over a year ago, it may be that they were simply blowing smoke to keep us quiet.

    We appreciate everyone’s ongoing efforts to keep pushing for action. We suspect Parnell and his attorney’s read Bill’s blog and know we will not stop calling for justice for his murderous acts. We take some comfort in believing that he is concerned about the government announcing prosecution at any moment.

  • Lawrence Bernstein

    This is the kind of thing that makes my stomach turn. I have met Jeff and Randy and they deserve better! This person, animal, doesn’t deserve to see the light of day anymore. He has turned peoples lives around and now they only have a cause to fight for and sad reminders every day. The federal government is comprised of people who consume food and as my wife Rita says only when one of their loved ones gets sick, or dies will they do something.

  • Peter Hurley

    When someone knowingly is negligent in their actions and it results in the injury or death of others, there is a statue on the book in every state that addresses that criminal behavior. The laws I am referring to are outside the bounds of the FDA.
    We all know this at a gut level even if we don’t know the laws of our states. We trust that our legal system will follow through and enforce the laws that are on the books. It is a disgrace that such a clear cut case is not being addressed by Eric Holder’s Justice Department. Not to mention that President Obama even addressed the fact that his own daughters ate the same product that made my son sick. I would not point my finger so directly to Holder and Obama if it were not for the fact that both addressed this poisoning publicly and have obviously let the people and the legal system down.
    A tragedy is a tragedy; but a crime is a crime. Parnell is a criminal and should have faced a judge a long time ago. But that can’t happen until the Justice Department completes what it started. So, for all those who have felt the feces covered criminal hand of Stuart Parnell reach into their lives, we beseech the Justice Department to finish its work, yesterday.

  • Paul F Schwarz

    The Justice Department has some explaining to do as to why no arrest. What is it about this ‘alleged’ criminal? Why has he avoided an indictment? He he too rich? Has he powerful friends? Just what is it that we are missing? Is there no justice for the families of the dead? For Justice for the living? Is this not sexy enough for the US Attorneys office to pursue? I doubt that we will know why there is a lack of action!
    Why should we have to beg for justice?
    My dad died a few months after eating listeria tainted cantaloupe from Jensen Farms. We couldn’t even get a hearing from congress! People died and the survivors will carry the effects of listeria. Something has gone wrong with our country. The system is rigged toward the powerful and it doesn’t seem like we can do a damn thing about it!
    Thank you Bill for all of your efforts!
    Section 51 Row 1 Grave 3 Ft Leavenworth/Leavenworth National Cemetery