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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Third-party auditors added to Listeria Cantaloupe Lawsuit

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.

  • Jeff Almer

    Awesome move Bill–sock it to em! Hopefully it will help serve to have legitimate inspections occur a bit more often.
    I recall on the 3rd Party Audit of Peanut Corp; the AIB auditor, who normally was a bakery inspector, was “surprised” that salmonella could “even exist” in peanut products. That my friends is a waste of time.
    In far too many cases, the third party auditors have only served as a rubber stamp to tout the interests of the very same people who have hired them. They are the poster child for a conflict of interest in this country’s illustrious food safety history .

  • Sam

    Halleleujah!!!! I hope all the victims (and families of deceased victims) are fairly compensated by all parties involved. The third party audit scam needs to be seriously evaluated under bright light. I just finished a conversation with an “auditor” who charges $5000 for two days of “consulting”. Yes five THOUSAND. Yet this very person was open in admitting that there is little or no value added by a thirdy party audit.

  • John Munsell

    Well, guess what folks? USDA/FSIS in recent years has made recurring “suggestions” that meat plants hire 3rd party auditors to validate that the plant’s HACCP Plan and related protocol are fully effective to accomplish the goal of producing safe meat. Why didn’t the agency recommend these 3rd party audits 15 years ago? Answer: 15 years ago, we didn’t have HACCP, and FSIS actually did inspect meat back then, and had policing authority back then, along with command and control authority, both of which were voluntarily relinquished by the agency upon HACCP’s advent. Since the agency has no heart for “Hands On” (to use the agency’s verbiage) inspection anymore, well, some other 3rd party must do it. Voila! Outside 3rd party auditors are the answer to this problem.
    If I were to audit a plant, and issued a truthful report revealing some glaring discrepancies, I’d likely be black-balled in the industry. Since no one will bite the hand that feeds it, most humans will only report what their employer desires, which is a laudatory report ignoring all noncompliances.
    These are the natural consequences of deregulation, which is the Trojan Horse behind the agency’s fabricating the foundational principles of its HACCP Hoax.
    John Munsell

  • Paul F Schwarz

    John is correcto mundo! This third party auditing has not proven to be safe and is the direct result of what hapens to people like my father. What do those people that want to limit the scope of the federal governemnt have to say? I say allocate more funds to the USDA not cut funds as is the current rant!