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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Jensen Farms, grower of Listeria Cantaloupe, files Bankruptcy

bankruptcya.jpgToday, Jensen Farms filed for Bankruptcy in Federal Court in Denver.

As I said to the Denver Post:

Victims’ attorney Bill Marler of Marler Clark in Seattle still hopes to bring Frontera, the auditors and retailers into a pool administered by the courts….

“For me, the bottom line is this is step one of a process making sure all these people receive fair compensation,” Marler said.

146 people sickened with 36 dead.

  • Bix

    How about that.


    Does “Strict liability” apply just to the producer of a food product or does it extend to some or all of the entities that participate, or may participate, in moving the product from the producer to the customer? I see from a previous post that you intend to pursue Wal-Mart and Kroger in this matter as well as the auditing function. What about the trucking company (Assuming an entity separate from Wal-Mart et al) that carried the product from farm to market? If Jensen Foods had used a farm labor contractor to supply the harvest crew for the product in question would the labor contractor be liable for the possibility that individuals supplied as harvest crew might have been a, or the, source of contamination? If, at a distribution warehouse along the way, a trucker had hired individuals, as private contractors, to load or unload his truck (These folks are commonly known as “Lumpers” ) would said individuals have potential liability? There are probably others who might have some part in moving product from farm to market. Are all under the blanket of “Strict Liability” or is there a “Bright line” principle of separation that at some point says entities on one side have liability, those on the other are sufficiently removed from responsibility / control so as to avoid liability?

  • Art, I wish there were simple answers, but there are not. Each state’s law have differing rules with respect to what entities are liable and which ones are not. In some states all the chain is strictly liable. In some states some are held to a strict liability standard (manufacturers) and some held to a negligence standard (retailers). Shippers, truckers fall into a grey area. Here is a link to a presentation I recently gave in Colorado:

  • Art Davis

    Am I correct in believing European Law (EU in general) tends towards due diligence / negligence rather than strict liability as the standard for food producers and those in the chain from producer to consumer? This is what I have been told but not by anyone I would suggest might really know.

  • That is my understanding as well altough honestly the outcome on liability is not that different.

  • Art Davis

    What is your evidence for this statement? It seems obvious that a due diligence standard would be quite different from strict liability.

  • I do not disagree that the standard is different, that is not what I said in my earlier reply. I said that the outcome tends to be the same in many instances. Example – don’t you think that Jensen Farms would have been liable under either standard – strict liability or due diligence? Most manufacturers that cause an outbreak, in my opinion, would be held liable under either standard. Do you have an example where they would not have?
    I think you concern is applying strict liability to the rest of the chain between the manufacturer and the consumer? That is a public policy debate that goes on in state legislatures all over the country every year. That is why the laws vary greatly from state to state.
    I think the question you have to ask is who should bear the full burden of the outbreak – the victim – and, if they do not have insurance, society, or does the chain of distribution that made a profit off the transaction have a role to play?

  • Paul F Schwarz

    The bottom line is that my dad, Paul A Schwarz, ate listeria tainted cantaloupe from Jensen Farms. That tainted cantaloupe made its way to the Kansas City MO metro area. He died on the 18th of December 2011. I visited my fathers grave early yesterday morning! I put the flag of the United States of America beside his grave marker. The flag that he and others fought bravely for during the 2nd World War. He survived the South Pacific, but not tainted cantaloupe!
    Paul A Schwarz
    Section 51 Row 1 Grave 3 Ft Leavenworth/Leavenworth National Cemetery

  • Art Davis

    Regarding the Jensen Farms and PCA related outbreaks I would agree that negligence / due diligence would apply and result in much the same outcome as strict liability. With regard to the 2006 Spinach (Earthbound Farms) outbreak I’m not so sure. So far as I am aware no “Smoking gun” was ever discovered nor were there any particularly egregious deficiencies found in the handling and packing processes. Certainly nothing of the magnitude of Jensen & PCA.
    As a hypothetical should an outbreak occur in a produce type product produced by an entity fully compliant with the “Leafy Greens” protocols as well as all applicable GAP’s, GMP’s and with a documented HACCP program would “Fault” still apply or just “Strict Liability” as a basis for assuring that a third party (An insurance company) covers outbreak associated expenses? Deflecting the expenses to a third party in effect spreads, and if litigation is involved increases, those expenses across some subset of the population via increased costs of doing business leading to price increases. This might be acceptable in principle and if so there ought to be a way to do it equitably without the added costs of litigation i.e. if one can demonstrate that 1. an illness was part of a recognized food related outbreak and 2. No specific negligence attaches to the producer (Or elsewhere in the distribution chain) then one is entitled to compensation from an industry wide compensation pool according to a formula based on severity of illness and other factors as appropriate. This is somewhat akin to no fault automobile insurance. Probably “Pie in the Sky” but the current system seems burdensome at best in the case of outbreaks where no obvious fault exists.

  • Art, I think what you are describing is a system similar to what New Zealand has. It also has universal health care coverage.
    If we in the U.S. had medical coverage for all (cost spread among all), a functional criminal justice system (think PCA), and a competent regulatory and inspection system (think unfunded FSMA), and a non-fault compensation system (like worker’s compensation), lawsuits would be unnecessary at least for victim compensation because less outbreaks would be happening. However, and I have 20 years of experience litigating cases that you seem to find problematic, I bet the cost of the system we have – with all its faults – is less expensive to business than the alternative system you find so seductive.
    As for the spinach outbreak that came from the Natural Selection Foods plant in Dole co-packed spinach in 2006, there was plenty of fault in how they sourced, processed and cooled the product. Due diligence would not have protected them from the 205 people sickened with 5 deaths. And, in my view, a company that does that should not be able to walk away saying “we did our best, too bad for the victims.”
    As I think I said earlier, strict product liability in the context of food, presumes that the product is defective if it contains a pathogen that can kill you or your kid. To force the victim to prove exactly what the defect is and how it happened, although not impossible with an experienced and well-funded lawyer, it is not necessary because the law presumes the evidence of a pathogen is evidence of a failure and therefore fault.
    And, to anticipate your response “what about the fault of consumers for improper handling,” the civil justice system does allow for comparative fault.