A federal judge on Tuesday sentenced the two owners of the cantaloupe farm tied to a deadly Listeria outbreak in 2011 to five years probation, six months home detention, and $150,000 each in restitution fees to victims.
Brothers Eric and Ryan Jensen owned Jensen Farms in Colorado, where they grew the cantaloupes that sickened at least 147 people with Listeria and killed more than 30, making it one of the deadliest foodborne illness outbreaks in U.S. history.
The case has been a landmark in foodborne illness litigation, becoming one of the first instances in which food producers faced criminal charges for their contaminated food. While some felt that the Jensens should have received jail time for the amount of damage done to victims and their families, others – including prosecutors – saw probation as more appropriate given that there was no malicious intent behind the outbreak.
The brothers were facing a maximum of six years in jail and $1.5 million each in fines on six counts of introducing contaminated food into interstate commerce. Government prosecutors had suggested the lower sentence of five years probation earlier this month.
Several family members of victims were present at the sentencing hearing in Denver.
“Some victims didn’t want them to go to jail, but others did want hard jail time,” said Paul F. Schwarz, whose father, Paul A. Schwarz, died from listeriosis poisoning after eating the tainted cantaloupes. “I may not like it, but I’ll accept it,” Schwarz added.
Schwarz commended the Jensens for filing a lawsuit against food safety auditor Primus Labs, which gave the farm’s processing facilities a stellar safety rating just weeks before the outbreak occurred. Any money made from that lawsuit will go to help pay restitution to victims and their families.
Food safety attorney Bill Marler said that probation would be a sufficient sentence for the Jensens, as the criminal charges have already sent a message to food growers that deadly foodborne illness outbreaks are taken seriously by government prosecutors. Marler’s law firm, Marler Clark, represents 24 families of victims who died. The firm also underwrites Food Safety News.
A sentence of five years probation would be sufficient to help deter other growers from ignoring their food safety responsibilities, the prosecutors had argued, saying that food producers are already recognizing that flouting safety standards could expose them to criminal liability.
“A sentence to an extensive period of Court supervision will only amplify the message of deterrence to the food industry,” the prosecutors said.
Prosecutors also said that the probationary sentence avoided the disparity between the Jensens’ sentence and that of similar defendants in past cases.
Prosecutors laid responsibility on the Jensens for maintaining equipment that would wash cantaloupes with anti-bacterial solutions to sufficiently combat contamination. According to documents, however, the Jensens did not outfit their conveyor system with the chlorine spray that would have reduced microbial loads on the cantaloupes, instead opting to wash the melons with city drinking water on a longer wash cycle.
Despite the lack of an adequate washing solution, Primus Labs gave the Jensens Farms processing facility an audit score of 96 percent.
Victim families have already received $3.8 million from the Jensens’ insurance policy. Attorneys representing the victims are looking to receive approximately $30 million more in damages from Primus Labs and retailers that carried the cantaloupes, such as Walmart and Kroger.
Schwarz said that while he appreciated the efforts of the Jensens to help secure more money for victims, if they had properly cleaned the melons they would still be in business and Schwarz would not be on his way to Washington, D.C., to speak to members of Congress in support of the Food Safety Modernization Act.
“I just hope this sends a message,” Schwarz told Food Safety News. “This is a chance for the Court to send a message to the growers and others in the food industry that this can’t be tolerated.”© Food Safety News