As I posted yesterday, I am still unclear why the FDA has not used its recall authority to force Felix Custom Smoking to recall the product that the FDA determined to be at risk of being tainted by the deadly pathogen, Listeria monocytogenes.
Taking aside the weakness of the FDA (or whatever the cause of the inaction) and the moral failing of Felix Custom Smoking to recall product that might sicken or kill their customers; since Felix Custom Smoking refused the recall, the questions is: what if the product then caused harm, would it be liable for punitive damages?
I would say – yes.
Listeria monocytogenes is a species of disease-causing bacteria, which can cause an infection called listeriosis. Listeria monocytogenes is generally transmitted when food is harvested, processed, prepared, packed, transported or stored in environments contaminated with Listeria monocytogenes. A listeriosis infection can have serious adverse effects for women who are or may become pregnant, the elderly, and persons with weakened immune systems. There are a range of symptoms for listeriosis. Depending on the severity of the illness, symptoms may last from days to several weeks. Mild symptoms may include a fever, muscle aches, nausea, vomiting, and diarrhea. If a more severe form of listeriosis develops, symptoms may include headache, stiff neck, confusion, loss of balance, and convulsions. For the very young, the elderly, and the immune-compromised listeriosis can result in death.
Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
A jury may, in its discretion, render punitive damages in cases in which the defendant is found to have injured the plaintiff intentionally or maliciously, or in which the defendant’s conduct reflected a conscious, reckless, willful, wanton, or oppressive disregard of the rights or interests of the plaintiff.
The amount of a punitive damages award is determined by the jury upon consideration of the seriousness of the wrong, the seriousness of the plaintiff’s injury, and the extent of the defendant’s wealth.
FDA Advisory: On August 27, 2021, the FDA advised consumers not to purchase or eat any seafood products sold or processed by Felix Custom Smoking due to possible Listeria monocytogenes contamination. See, Advisory
Summary of Problem and Scope: The FDA detected the pathogen Listeria monocytogenes and other strains of Listeria during an inspection at Felix Custom Smoking that began on July 19, 2021 and is still ongoing.
As part of the inspection, on July 19, 2021, the FDA collected environmental samples from the firm which consisted of 104 samples from direct food contact surfaces and areas near direct food contact surfaces. Laboratory analysis shows that of the 104 samples collected, 19 tested positive for the pathogen Listeria monocytogenes and four tested positive for other strains of Listeria. Of the 19 samples that were positive for Listeria monocytogenes, five were collected from food contact surfaces.
The FDA has notified Felix of its findings, but the company has declined to initiate a recall of its products and is still processing seafood at this time.
FDA Actions: The FDA is issuing this alert to notify consumers, companies, and fishermen who may have received product from Felix because the agency is concerned about the presence of Listeria monocytogenes at the firm and the safety of its products. The FDA is continuing its efforts with Felix and its customers to remove these products from the market.
Felix Custom Smoking of Monroe, Washington, is a processor of a variety of ready-to-eat salmon, squid jerky, and frozen, hot smoked and cold smoked seafood. The firm also processes seafood products for companies that distribute these products independently.
Some of Felix’s products include:
Felix Northwest Blend Smoked Wild King Salmon
Felix Northwest Blend Smoked Wild Sockeye Salmon
Felix Northwest Blend Smoked Wild Tuna
Felix Pepper Smoked Wild Mixed Salmon Jerky
Felix Wild Keta Teriyaki Smoked Salmon Jerky
One of Felix’s customers, Loki Fish Company, issued its own product recall on August 23, 2021.