Suit Fails Against Cantaloupe Farm Auditor
A federal court in Oklahoma has dismissed, without leave to amend, claims
filed against the company that audited Jensen Farms before a 2011 Listeria
outbreak sickened dozens of consumers, including the plaintiff, who allegedly
contracted listeriosis from the strain linked to the farm’s cantaloupe and was
hospitalized for a month. Underwood v. Jensen Farms, No. 11-348 (E.D. Okla., decided December 31, 2013). Auditor Primus Group, Inc. allegedly
gave the farm a “superior” rating and 96-percent score after a July 25, 2011,
audit, and the plaintiff became ill on September 2.
The court determined that the plaintiff could not show that the auditor
owed him a duty under Oklahoma law because “the connection between
the July 25, 2011, audit and the onset of Plaintiff’s illness [was] too remote in
both time and circumstance. Significantly, Plaintiff has failed to plead facts
sufficient to establish that the contaminated cantaloupe would not have been
distributed if Primus had given Jensen Farms unsatisfactory audit results. To
impose a duty on auditors absent a showing that such auditors maintained
some control over the distribution of the manufactured goods would be
illogical and impose an unreasonable burden on third-party auditors.”
The court also rejected the plaintiff’s attempt to impose liability under the
Restatement (Second) of Torts §§ 311 and 324A or as a third-party beneficiary
of the audit contract between Primus and Jensen Farms. In addition, the court
determined that the plaintiff failed to sufficiently plead causation and made
insufficiently conclusory allegations pertaining to his negligent hiring, selection
and monitoring claim against Primus. Because the plaintiff failed to file a
motion for leave to amend and “his only request for leave to amend came at
the end of his Response to Primus’ Motion to Dismiss,” the court found that it
failed to comply with the relevant pleading rules and thus struck his request
for leave.
Information about the lawsuit that Jensen Farms has filed against the auditor
appears in Issue 501 of this Update.
Issue 509
