A divided Delaware Supreme Court has determined that ConAgra’s insurance 0contract is ambiguous and therefore might provide broader coverage, with a lower “retained limit” or deductible, for claims arising out of an alleged Salmonella outbreak involving the company’s peanut butter. ConAgra Foods, Inc. v. Lexington Ins. Co., No. 227, 2010 (Del., decided April 28, 2011). The court reversed a lower court ruling that granted, in part, the insurer’s motion for summary judgment and remanded for consideration of extrinsic evidence about what the parties intended when they agreed to a “lot or batch” endorsement; if that intent cannot be ascertained, the lower court was instructed to interpret the contract in ConAgra’s favor. The court also determined that because ConAgra exceeded the retained limit, the insurer’s duty to defend was triggered on the date the food maker’s liabilities exceeded that limit. The policy at issue included two definitions for “occurrence,” one of which was in…
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A federal multidistrict litigation (MDL) court in Georgia has denied ConAgra Foods’ motion for summary judgment in a case involving claims that tainted peanut butter caused a man’s salmonellosis. In re: ConAgra Peanut Butter Prods. Liab. Litig. (Kidd) v. ConAgra Foods, Inc., MDL No. 1845, No. 07-1415 (N.D. Ga., decided May 4, 2011). Bobby Joe Kidd claimed that after he ate Peter Pan® peanut butter he was hospitalized with abdominal pain and nausea. Blood and urine samples taken during his stay apparently tested negative for Salmonella and other infectious agents. ConAgra relied on the negative tests to argue that Kidd would be unable to show that it was more likely than not that contaminated peanut butter caused his illness. The court disagreed, finding sufficient evidence “to allow a reasonable jury to infer that contaminated peanut butter caused his symptoms.” Kidd’s records “indicate that he ate recalled peanut butter and experienced Salmonella-like…
The Food and Drug Administration (FDA) has answered criticism of a July 21, 2000, final rule allowing “the safe use of ionizing radiation for the reduction of Salmonella in fresh shell eggs,” and denied requests for a hearing on the ground that the objections “do not raise issues of material fact or otherwise provide a basis for revoking or modifying . . . the regulation.” FDA evidently received 26 submissions contesting the final rule, which permits the irradiation of fresh shell eggs at doses not to exceed 3.0 kiloGray (kGy), but only one letter from Public Citizen raised specific issues within the rule’s scope. The April 13, 2011, Federal Register notice responds to Public Citizen’s claims that FDA misrepresented irradiation’s efficacy and its effect on vitamin A loss and egg yolk carotenoids; that FDA raised the dose allowance to 3.0 kGY without properly updating its analyses; and that FDA failed…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has announced new and revised performance standards to reduce Salmonella and Campylobacter incidence in young chickens and turkeys. Effective July 2011, the standards apparently draw on the FSIS Nationwide Microbiological Baseline Data Collection Programs and the recommendations of President Barack Obama’s (D) Food Safety Working Group. According to a March 21, 2011, Federal Register notice, “The standards will be applied to sample sets collected and analyzed by the Agency to evaluate establishment performance with respect to requirements of the Hazard Analysis and Critical Control Points (HACCP) Rule.” FSIS has estimated that, after two years, the combined Campylobacter and Salmonella standards will prevent approximately 25,000 illnesses annually. “While the industry has made significant strides in recent years, far too many Americans continue to fall victim to these foodborne illnesses,” said Under Secretary for Food Safety Elisabeth Hagen in a March…
Centers for Disease Control and Prevention (CDC) researchers have called for rapid tracing of food source contamination to reduce illness and save lives. Casey Barton Behravesh, et al., “2008 Outbreak of Salmonella Saintpaul Infections Associated with Raw Produce,” New England Journal of Medicine, February 2011. Investigating the 2008 Salmonella outbreak first blamed on American tomatoes but later pinpointed to Mexican peppers, researchers concluded that the outbreak—linked to approximately 1,500 illnesses and two deaths—“highlights the importance of preventing raw produce contamination.” The report calls for (i) product-tracing systems improvements, including the “ability of the systems to work together for more rapid tracing of implicated products through the supply chain in order to maximize public health protection and minimize the economic burden to industry”; (ii) “an understanding of the mechanisms and ecologies that can lead to contamination of produce on farms”; and (iii) “the institution of additional control measures from the source throughout…
The Food and Drug Administration (FDA) has issued a warning letter to CEO John Glessner of Ohio Fresh Eggs, after finding that it had shipped nearly 800 cases of eggs from farms that had tested positive for Salmonella. The Ohio company is reportedly linked to the egg producer involved in a massive egg recall in 2010; Glessner apparently has ties to Hillandale Farms of Iowa whose owner Jack DeCoster apparently provided most of the funds to purchase Ohio Fresh Eggs from a previous owner. The company has reportedly characterized the shipment as a mistake and was quoted as saying, “Our farm cooperated fully with FDA to ensure a swift and complete recall of those eggs from our customer, and we are thankful no illnesses were reported.” See Des Moines Register, March 1, 2011.
The Food and Drug Administration (FDA) recently announced that agency analysts turned to next-generation sequencing to test samples collected during a Salmonella outbreak that purportedly sickened nearly 300 people from 44 states and the District of Columbia. The 2009 2010 outbreak was linked to the spice rub used on certain salamis and was ultimately traced to a single food facility. According to FDA, “The findings supported the information gathered in the field phase of the investigation and suggest an important role for this novel tool in augmenting future outbreak investigations.” See FDA Press Release, February 24, 2011.
Senator Patrick Leahy (D-Vt.) has requested that Attorney General Eric Holder provide an update on the Justice Department’s criminal investigation into the 2009 Salmonella outbreak involving contaminated peanuts from Peanut Corp. of America (PCA) facilities. As Leahy reminds Holder in his February 22, 2011, letter, the outbreak was linked to the deaths of nine people and purportedly sickened more than 700 others. He also cites his previous request that the department conduct “a full criminal investigation into this matter.” PCA declared bankruptcy in 2009, and neither its former CEO nor other executives have been charged to date. According to Leahy, “Given the PCA investigation, the pistachio recall, and last summer’s salmonella outbreak from eggs, my concerns remain that wrongdoers are disregarding the health and safety of American consumers by choosing to sell contaminated products. I hope that there has been a thorough criminal investigation into PCA’s conduct at the least,…
According to a news source, the families of those who died or became ill from consuming Salmonella-tainted peanut products scheduled a February 11, 2011, press conference to call for the Department of Justice (DOJ) to bring criminal charges against the man who headed the bankrupt Peanut Corp. of America, to which the contamination was allegedly traced. More than 700 people were said to have experienced ill effects during the 2008-2009 outbreak and at least nine died. Former Peanut Corp. CEO Stewart Parnell invoked the Fifth Amendment when called to testify before Congress, and, despite a two-year investigation by the U.S. attorney’s office, no charges have yet been filed. The press conference coincided with a food safety seminar at the American University Washington College of Law at which some of the family members were scheduled to speak along with plaintiffs’ lawyer William Marler, who has represented a number of those allegedly…
The Food and Drug Administration (FDA) has issued the first annual report on its Reportable Food Registry (RFR) designed to prevent foodborne illness outbreaks. Summarizing 2,240 online food safety reports from the food industry and public health officials between September 2009 and September 2010, the report “is a measure of our success in receiving early warning problems with food and feed,” states FDA Deputy Commissioner for Foods Michael Taylor in the preface. Report findings apparently show that 37.6 percent of the reported food hazards were caused by Salmonella, 34.9 percent by “undeclared allergens/intolerances” and 14.4 percent by Listeria. The report highlighted “two particularly significant issues in multiple commodity groups that require attention”: (i) Salmonella found in such products as spices and seasonings, produce, animal feed and pet food, nuts and seeds; and (ii) allergens and intolerances in fare including baked goods, fruit and vegetable products, prepared foods, dairy, and candy.…
