After first pleading not guilty last month to all charges, Eric and Ryan Jensen reached an agreement with federal prosecutors that tomorrow will see them plead guilty and agree to cooperate with the government in exchange for lighter sentences.
The brothers will probably get an opportunity to provide testimony when they enter their pleas on federal misdemeanor charges where strict liability is the standard. Here’s how that works: the cantaloupes they grew in 2011 were food, it was adulterated, and it entered into interstate commerce when the brothers were responsible for the business that allowed it to happen.
But, once that’s done, the Jensen brothers seem prepared to say a lot. They will be ready with words of caution for the food industry, in which they say relying on the advice of outside “experts” can land business owners in jail.
The brothers, who tomorrow will accept responsibly for the nation’s most deadly outbreak of foodborne illness in a generation, are prepared to say that blame clearly rests with the third-party auditor they relied upon to keep their cantaloupes safe for human consumption.
They’ve sued PrimusLabs, the Santa Maria, CA-based food-safety consultant that provides “internationally recognized audits” for food producers such as Jensen Farms. Third-party auditors such as PrimusLabs have often come in for criticism from food-safety advocates after major outbreaks of foodborne illness for issuing reports that, in hindsight, appear way too rosy.
The brothers’ Jensen Farms partnership sued Primus Labs on Oct. 15 in Prowers County District Court at Lamar, CO. The Jensens claim that PrimusLabs was negligent in auditing their cantaloupe fields and packing facility in July 2011, shortly before their cantaloupe was linked to a 28-state outbreak of Listeria that was ultimately found responsible for 33 deaths and a miscarriage. It also sickened about 150 people.
They want their civil case heard by a jury in Prowers County where Jensen Farms is located.
In their state complaint, the Jensen brothers say their Texas-based distributor, Frontera Produce Inc., “required” them to become “Primus Certified.” Presumably, Frontera imposed the requirement to make it easier to distribute the Colorado-grown cantaloupe to national retailers.
Jensen Farms did contract with PrimusLabs for an audit of both its farmlands, where its cantaloupes were grown, and its packing house. PrimusLabs then hired a subcontractor, Bio Food Safety, as its agent to conduct the actual audit. The year earlier, Bio Food Safety directly conducted the outside audit for Jensen Farms.
James Dilorio of Texas was the auditor Bio Food Safety assigned to the job in 2011 after it signed on as a Primus subcontractor. The Jensen brothers charge that PrimusLabs “knew, or should have known, that BFS was an improper entity for that work, work which involved the risk of harm to others.”
After conducting the July 25, 2011, audit, Dilorio “acting on behalf of Primus, gave Jensen a score of 96 percent and a ‘superior’ rating at the conclusion of the audit,” states the Jensens’ lawsuit.
Continuing in the complaint, the Jensen brothers allege that, in 2010, an audit conducted of their cantaloupe ranch by “the president of BFS” expressed concern about the hydrocooler they were using for processing. They say the 2010 audit found the hydrocooler was a “hotspot” for contamination because of its use of recirculating water.
Before the 2011 growing season, Jensen Farms changed out its old hydrocooler for new processing equipment that used city water and brushes to wash the cantaloupes. “The only chlorination was in the city water used to wash the cantaloupe,” they say.
“Since the 2011 auditor was not the 2010 auditor,” states their lawsuit, “Eric Jensen specifically described the change in the system from the prior audit, including the removal of the hydrocooler with its recirculating chlorinated water. The 2011 auditor noted the changes in his report.”
They say the PrimusLabs subcontractor did not question what they’d done, did not warn them of any risk of contamination, and did not discuss U.S. Food and Drug Administration (FDA) guidelines with them.
“The 2011 auditor, Mr. Dilorio, failed to observe, or properly downscore or consider, multiple conditions or practices that were in violation of Primus’s own audit standards applicable to cantaloupe packing houses, industry standards, and relevant FDA industry guidance,” they charge.
As a result, the Jensens claim that they were improperly given a “superior” rating, and the auditor “erroneously represented” to them and others that they met “Primus Certified” standards. The Jensen brothers say that, had they failed the audit and not been “Primus Certified,” they would not have sold and distributed their cantaloupes in interstate commerce through Frontera.
They say they still had no evidence that their melons were contaminated when they agreed to a voluntary recall on Sept. 14, 2011 – about 10 days after the public learned about the dangerous outbreak.
In an Oct. 18, 2011, warning letter, Jensen Farms learned the Listeria was being spread by its cantaloupes, and that the event was caused by the design of its conveyer system and the changed-out hydrocooler. They say both conditions were observed by the audit, but they were still “passed as safe.” Further, they point out that James R. Gorny, FDA’s senior advisor for produce, found the audit “seriously deficient in its inspection and findings.”
Their civil lawsuit charges PrimusLabs, which has not yet commented on or responded to the filing, with negligence, breach of contract and unfair and deceptive trade practices.
Each of the brothers is charged with six federal misdemeanor charges for introducing adulterated food into interstate commerce and criminal aiding and abetting.
If they contested those charges in a jury trial and were found guilty, they faced a potential six years in federal prison and fines totaling up to $1.5 million. By pleading guilty, much-reduced sentences are expected.© Food Safety News