Jensen Farms has filed a lawsuit against the company that hired the food-safety auditor who gave the cantaloupe grower a “superior” rating during a 2011 audit not long before the grower shipped fruit allegedly contaminated with Listeria to a distributor that required the cantaloupe to be certified by the auditor, giving rise to a nationwide outbreak that killed 33 people and hospitalized many others. Jensen Farms v. Primus Group, Inc., No. ___ (Colo. Dist. Ct., filed October 15, 2013). The farm has since ceased operation, and the Jensen brothers have entered guilty pleas to charges of adulteration of food and aiding and abetting.

According to the complaint, a Primus auditor indicated in 2010 that the cleaning technology used at the farm could potentially contaminate cantaloupe because it used re-circulating chlorinated water. The 2011 auditor, a different individual, was told about changes to the system made in response to the 2010 concerns, and Eric Jensen allegedly explained that the new washer/dryer system relied simply on the chlorination in city water. Despite this information and without warning that the new system created a hazard or risk of contamination, the auditor allegedly gave the grower a “superior” rating. The plaintiff claims that if it had failed the July 2011 audit, “and had its cantaloupes not been ‘Primus Certified,’ those cantaloupes would not have been sold by Jensen and distributed by Frontera as ‘Primus Certified.’”

The complaint discusses the Food and Drug Administration (FDA) report, which identified the design of the conveyer system and removal of the hydrocooler, “conditions observed by Primus during its audit and passed as safe.” It also notes that an FDA Center for Food Safety & Applied Nutrition senior advisor “opined that the Primus Labs subcontractor that conducted the pre-harvest inspection of Jensen Farms, and provided a ‘superior’, score of 96% for the audit upon which Jensen Farms relied, was seriously deficient in its inspection and findings.” Alleging negligence, breach of contract, negligent hire, negligent misrepresentation, and unfair and deceptive trade practices, the grower seeks damages for all damages incurred, including from civil lawsuits, the criminal charges and loss of the business, or to be incurred, costs, attorney’s fees, interest, and treble damages. See The Denver Post, October 22, 2013.



About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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