Punitive Damages Added to Tainted Peanut Butter Claims; Criminal Investigation Launched
Food litigator William Marler has reportedly filed an amended complaint on behalf of a Vermont couple whose son was allegedly sickened and hospitalized following ingestion of a product containing Salmonella-tainted peanut butter. Meunier v. Peanut Corp. of Am., No. 09-12 (M.D. Ga., first amended complaint filed January 28, 2009). The plaintiffs are now seeking punitive damages for “willful concealment of known defects.” The amendment follows the release of a Food and Drug Administration (FDA) inspection report showing that the Peanut Corp. of America (PCA) shipped products that tested positive for Salmonella after the company had the products retested and received negative test results.
Marler was quoted as saying, “In 15 years of litigating food cases, this is one of the worst examples of corporate irresponsibility I have ever seen. Not only does the plant appear to have atrocious practices, but the product that seems to have repeatedly tested positive for Salmonella was shipped to hospitals, nursing homes and schools regardless.” See Product Liability Law 360, January 30, 2009.
Meanwhile, FDA officials have reportedly confirmed that a criminal investigation of PCA has been launched in coordination with the Department of Justice. No other details have apparently been released, but PCA posted a statement on its Web site claiming that it “uses only two highly reputable labs for product testing,” and “categorically denies any allegations that the Company sought favorable results from any lab in order to ship its products.” See CQ Healthbeat News, January 30, 2009.
In a related development, PCA’s insurer has reportedly filed a lawsuit in a Virginia federal court seeking a ruling on whether the policy requires it to defend or indemnify the company. Hartford Cas. Ins. Co. v. Peanut Corp. of Am., No. 09-0009 (W.D. Va., filed February 3, 2009). According to Hartford spokesperson David Snowden, “We are seeking a declaratory judgment from the court to determine the extent of our obligation to Peanut Corp. of America. We believe this will help clarify the claims process.” The insurance company has asked the court to examine “exclusions and limitations” in its policy with PCA and decide whether they “exclude or nullify coverage . . . for one or
more of the Salmonella claims.” See The Atlanta Journal-Constitution, February 5, 2009.
Echoing PCA statements that its Georgia plant was regularly inspected and found to “meet or exceed” audit expectations, Kellogg is reportedly reviewing how it qualifies its independent auditors after the food-safety auditor it hired gave “superior” ratings to PCA’s Georgia facility during inspections in 2007 and 2008. Kellogg apparently requires that its ingredient suppliers undergo audits, which check for compliance with good manufacturing, sanitation and other practices. Kellogg has been named as a defendant in the Meunier litigation. A company spokesperson reportedly said in an email, “had we known of the issues cited (by the FDA), we would have discontinued the relationship with PCA.” See USA Today, February 5, 2009.
News accounts have quoted PCA employees who spoke of sanitation, maintenance and infestation issues. According to one cook at the Georgia plant, “I never ate the peanut butter, and I wouldn’t allow my kids to eat it.” The employees reported wet conditions inside after it rained, as well as regular sightings of rodents and cockroaches. Texas officials have reportedly discovered that PCA owned and operated a plant in that state, and while it conducted business uninspected and unlicensed for four years, no Salmonella contamination has been
found on the premises. See Chicago Tribune and Houston Chronicle, February 3, 2009.
During a hearing on the outbreak before the Senate Agriculture Committee, Senator Patrick Leahy (D-Vt.) reportedly called for “some people to go to jail,” observing that fines do not appear to be working. The U.S. Department of Agriculture (USDA) has, in the meantime, suspended PCA from participating in government contract programs for at least one year, and new Secretary of Agriculture Tom Vilsack has apparently removed PCA President Stewart Parnell from the USDA’s Peanut Standards Board. See Seattle Post-Intelligencer, February 5, 2009.
