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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Will Cargill Face Punitive Damages in Salmonella Heidelberg Turkey Burger Outbreak?

Cargill Punitive Damges.jpgWell, Cargill blew me off when I offered last week to forego filing suit in return for Cargill to start testing for Salmonella and diverting contaminated product before it hits the market – “Marler Clark to Cargill: Start Testing and We Won’t Sue You.” So, I am finishing up one of many complaints we now intend to file in the coming weeks. One of the states that we will be filing in is Oregon. Interestingly, it has a statue that allows for punitive damages. (Note, Cargill’s one year earnings are $2.69 billion on revenue of $119.5 billion).

Here are the allegations:

8.1 The plaintiffs adopt and incorporate by reference paragraphs 1.1 through 7.5 as though fully set forth herein.

8.2 Salmonella Heidelberg was detected at the Springdale plant even prior to March, 2011. Routine regulatory testing at the plant in June and July of 2010 again found Salmonella Heidelberg on the surface of turkey before it was ground. Despite being aware of these positive test results, and despite being aware of the high likelihood of harm the pathogenic bacteria could cause consumers, defendants failed to take reasonable and sufficient steps to prevent the outbreak. Defendants failed to alert its consumers of the potential danger, and failed to issue a recall of its ground turkey products at that time.

8.3 Defendants failed to take reasonable and sufficient steps to prevent the outbreak, despite being aware for months prior to the recall of the existence of the Salmonella Heidelberg bacteria in its Silverdale plant and on products. Defendants thereby acted with reckless and outrageous indifference to the highly unreasonable risk of harm to be caused by the Salmonella Heidelberg bacteria, and with a conscious indifference to the health, safety and welfare of the consumers of its ground turkey products.

8.4 Due to this reckless and outrageous and conscious indifference of defendants, plaintiffs pray for the assessment of punitive damages against these defendants.

The Oregon statute sets out the standards for award of punitive damages:

(1) Punitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.

(2) If an award of punitive damages is made by a jury, the court shall review the award to determine whether the award is within the range of damages that a rational juror would be entitled to award based on the record as a whole, viewing the statutory and common-law factors that allow an award of punitive damages for the specific type of claim at issue in the proceeding.

(3) In addition to any reduction that may be made under subsection (2) of this section, upon the motion of a defendant the court may reduce the amount of any judgment requiring the payment of punitive damages entered against the defendant if the defendant establishes that the defendant has taken remedial measures that are reasonable under the circumstances to prevent reoccurrence of the conduct that gave rise to the claim for punitive damages. In reducing awards of punitive damages under the provisions of this subsection, the court shall consider the amount of any previous judgment for punitive damages entered against the same defendant for the same conduct giving rise to a claim for punitive damages.

The statute also allows for the state to receive a portion of the punitive damages – distribution of punitive damages:

(1) Upon the entry of a verdict including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award to which the Criminal Injuries Compensation Account is entitled pursuant to paragraph (b) of this subsection, and the punitive damage portion of an award shall be allocated as follows:

(a) Forty percent shall be paid to the prevailing party. The attorney for the prevailing party shall be paid out of the amount allocated under this paragraph, in the amount agreed upon between the attorney and the prevailing party. However, in no event may more than 20 percent of the amount awarded as punitive damages be paid to the attorney for the prevailing party.

(b) Sixty percent shall be paid to the Criminal Injuries Compensation Account of the Department of Justice Crime Victims’ Assistance Section to be used for the purposes set forth in ORS chapter 147. However, if the prevailing party is a public entity, the amount otherwise payable to the Criminal Injuries Compensation Account shall be paid to the general fund of the public entity.

Read further why I think Cargill may well be found to have “acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.

More of the complaint’s allegations:

3.6 Cargill has a history of recalls and association with food borne illness outbreaks:

• 1993 – Cargill supplied meat to Northwest Sizzler restaurants that was implicated in an outbreak of E. coli O157:H7 infection involving 39 confirmed and 54 probable cases. Public health investigators said the illnesses were the result of cross-contamination between raw Cargill Tri-tips and salad bar ingredients.

• 2000 – Cargill provided meat to Sizzler restaurants linked to an outbreak of E. coli O157:H7 illnesses that killed one person and sickened that 62.

• 2000 – Sliced turkey from a Cargill processing plant in Texas was found to be the source of a multi-state outbreak of Listeria monocytogenes. The company recalled 16 million pounds of turkey after reports of infection that eventually included seven deaths and 29 illnesses. Eight of the case patients were pregnant and three miscarriages/stillbirths were attributed to the contaminated turkey.

• 2001 – Cargill ground beef patties tested positive for E. coli O157:H7 after a child from Georgia became ill. Three of the patties were purchased at Kroger and one from Sam’s Club, but all of the ill children and the tested meat had genetically indistinguishable strains of E. coli. Emmpak recalled 254,000 pounds of potentially contaminated ground beef.

• 2002 – Antibiotic-resistant Salmonella Newport was found in ground beef from Emmpak, a Cargill subsidiary. The CDC reported one fatality, 47 illnesses and 12 hospitalizations linked to consumption of the ground beef. Emmpak recalled a record 2.8 million pounds of potentially contaminated ground beef.

• 2007 – After Minnesota health officials traced 46 E. coli O157:H7 illnesses to ground beef patties, Cargill Meat Solutions Corporation recalled 845,000 pounds of frozen ground beef patties from retail locations across the U.S.

• 2007 – Cargill recalled 1,084,384 pounds of ground beef after federal tests detected E. coli O157:H7 in the product. No illnesses were associated with this recall.

• 2008 – Beef cheek produced by Beef Packers, a Cargill subsidiary, tested positive for E. coli O157:H7, prompting a 1,560 pound recall. No illnesses were associated with this recall.

• 2009 – At least 40 cases of Salmonella Newport infection were linked to Beef Packers ground beef in the summer, sparking a summertime recall of 830,000 pounds of ground beef. Then, in December, more Salmonella illnesses tied to the producer’s meat led to a recall of 20,000 pounds of products. Both recalls involved contamination with drug-resistant Salmonella bacteria.

• 2010 – Cargill Meat Solutions recalled 8,500 pounds of ground beef after reports of illnesses caused by E. coli O26, a rare strain of the bacteria that produces the same Shiga-like toxin as the more common E. coli O157:H7. The meat was distributed by BJ’s Wholesale Club.

• 2011 – Cargill Meat Solutions recalled 36 million pounds of ground turkey linked to an outbreak of drug-resistant Salmonella Heidelberg. Current outbreak numbers: one dead, 107 ill with 22 hospitalized and 1 death.

• And, according to press reports: ”Routine regulatory testing at the plant in June and July of 2010 found Salmonella Heidelberg on the surface of turkey before it was ground, Cargill spokesman Mike Martin said, but “no corrective action was required because of the low level found.” Martin added that Salmonella Heidelberg is one of the most common of the 2,400-plus strains of Salmonella.”

• Since 1993, Cargill has been the source of contaminated meat implicated in at least 10 major outbreaks, 10 deaths, three stillbirths and 366 illnesses.