Call it the hamburger defense.
Attorneys for Stewart Parnell, the former Peanut Corporation of America president and chief executive officer, have hit upon a tried and true defense lifted straight from the meat industry. They claim there is no way to prove that a deadly pathogen came from their client’s specific product.
In 20 years of litigation over responsibility for deadly E. coli O157:H7, plaintiffs’ attorneys have often run up against a maddening reality about simple American hamburger.
As New York Times writer Michael Moss wrote in his 2010 Pulitzer Prize-winning story about the hamburger that crippled Minnesota dance instructor Stephanie Smith, “… a single portion of hamburger meat is often an amalgam of various grades of meat from different parts of cows and even from different slaughterhouses.”
Moss explained the single hamburger that damaged Smith contained “ingredients came from slaughterhouses in Nebraska, Texas and Uruguay, and from a South Dakota company that processes fatty trimmings and treats them with ammonia to kill bacteria.”
In the complex fraud and conspiracy trial involving Parnell and two other former PCA executives, defense attorneys are trying their best to keep the jury from ever hearing about the 700 illnesses and nine deaths that are at the heart of the case. In doing so, they’ve struck on the hamburger defense. Specifically, defense attorney Thomas J. Bondurant, Jr., is challenging the government’s conclusion that Austin Peanut Butter crackers made with PCA peanut butter were responsible for making a South Carolina woman sick.
“As an initial matter, the government omits the fact the samples of Austin Peanut Butter crackers provided to the FDA consisted of previously opened cracked and unopened packages that were ‘purchased at different times from the same vendor,’” Bondurant writes in the defense brief.
“It is unclear whether these packages were sequentially numbered, were packaged at different times, or if they were even made from the same batch of peanut butter or other ingredients,” he says. “Likewise, the sampling records from the FDA do not indicate whether the samples analyzed included just peanut butter within the cracker or, as is more likely, parts of the cheese cracker as well.
“The FDA report does not indicate whether the Salmonella found could be isolated to just the peanut butter, to the cracker, or to perhaps even to the internal environment within the plastic wrapper.
“Additionally, no one from the FDA or any other agency traced ingredients within the crackers to ascertain the other source of the Salmonella,” Bondurant continues. “Had the FDA done so, it would have quickly learned that PCA is but ‘one of [Kellogg’s] three supplier of bulk peanut paste used to make the peanut butter fillings for sandwich crackers.’
“Moreover, the information available to the FDA includes the observation that Kellogg’s routinely mixes peanut paste from all the companies into an indistinguishable peanut butter product.”
Bondurant, a former government prosecutor, says this information was available to FDA from Kellogg’s “Establishment Inspection Report” 30 days before crackers were collected in the South Carolina case.
“This report concludes that Kellogg’s does not segregate the peanut paste that is received from its three suppliers,” he says. “Rather, Kellogg’s unloads bulk tanker paste ‘through insulated pipes to one of three 45,000 lb. capacity bulk storage tanks’ which are ‘not designated and all three tanks are supplied though a single receiving line’ and ‘are also emptied through one set of piping.’”
Bondurant says bulk paste running through common lines and common tankers was sent through a second common line to a mixing room where it was mixed with other ingredients, including sugar and salt. He says that a “ribbon mixer line” is one that was once mixed with other ingredients and is used to feed drop stations for the stencil depositors on the sandwich cracker lines.
Further, he says the bulk tankers “are not emptied and cleaned at any time” as Kellogg’s uses a “closed system/nitrogen blanket” system. It does not apply heat treatment during processing and does no microbiological testing of finished products.
The bottom line? Bondurant claims “… there are insurmountable obstacles to providing, or even asserting, that a PCA product was ingested by a particular person who ate Kellogg’s crackers and later developed an illness of any kind.”
He says that the opportunities for pathogens to taint the ultimate product are many, and that neither FDA nor Kellogg’s could trace it.
“This, of course, is evident on its face as the end product is ‘peanut butter cheese crackers’ and PCA produced only peanut paste (not even the peanut butter) for Kellogg’s,” the defense attorney argues. “Viewing the facts as a whole, the government cannot claim that the peanut butter in South Carolina crackers was PCA peanut butter, and the overwhelming disconnect between salmonellosis in the woman from South Carolina and peanut butter crackers that may or may not have even contained a PCA product illustrates precisely why the government cannot realistically claim that evidence of illness and death is relevant.”
Bondurant’s defense brief is in advance of Tuesday’s important hearing on several pre-trial motions that will likely determine what does and does not go to the jury. In earlier filings, government prosecutors have claimed they have broad discretion in determining what evidence they may present to a jury.
Michael Parnell, the peanut broker who was also involved in PCA’s transactions with Kellogg’s, and Mary Wilkerson, quality control manager at the Blakely, GA, processing plant, also face federal felony charges in the case scheduled for trial starting July 14.© Food Safety News