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Parnell Defense: Government Can’t Prove Deadly Salmonella Came From PCA

Will 'Hamburger Defense' Work for Peanut Paste?

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
  • 1Jeff_Almer2

    Alrighty then Mr Bondurant Jr; let’s focus on one South Carolina opened package of crackers than shall we? So the package was opened huh? Kind of hard for the individual to eat the contaminated product when it is still sealed.

    So Kellogg’s has a convoluted system of coagulating all their peanut pastes into their products? Funny, but I thought the outbreak involved multiple other companies other than just Kellogg’s. Isn’t it amazing how the large outbreak stopped growing when PCA was shutdown. A real coincidence there isn’t it Junior?

    Hey Junior, how shall you be explaining away the positive tests that PCA product suffered? A government conspiracy perhaps? Maybe the independent labs had it out for an ADHD suffering Virginia businessman. One also wonders how might the esteemed defense might explain away the leaking roof with bird feces on top? At the instruction of the government, I suppose those pesky birds decided to drop their excrement as part of the conspiracy.

    Something else for junior to ponder; two plant managers have already plead guilty. I suppose they were part of the conspiracy and realized the error of their ways to avoid longer prison sentences.

    It takes some kind of person to be a defense attorney and pull all these no shame garbage excuses with such fervor and disdain. Enjoy your money, as you have proven in my humble opinion to be the same type of slimeball that Parnell is.

  • DocB

    That is why there is civil court. The criminal standard is “without a reasonable doubt”. If we did not watch Stewart Parnell force feed someone from a jar marked as contaminated, there is always a possibility that someone is going to say there was reasonable doubt.
    Hit these folks in the wallet. Take them to civil court and put them in the soup line. These folks are much more afraid of being poor than they are of being in jail. No assets from these folks should be untouchable. I don’t care if they leave the court room wrapped in a blanket.

    • Oginikwe

      They should be police-escorted out to the van waiting to take them to prison, blanket or naked.

  • Michael McCartney

    So since the companies that supplied the product cannot provide a reliable trace back they are now not responsible?This could lead to a trace back system that is extremely expensive to create and will take years to implement. When the drug industry was faced with this issue they punted and said they would need 7 years to implement which is in 2016. Companies that provide food for us to eat need to step up and provide real ingredient-item level tracking otherwise the same defense, however ill founded will be replicated until the FDA changes its rules.

  • KennethKendrick

    PCA had no computer program at all to keep with it products, all some in excel or by hand when I was there, (real 1st rate huh) I knew that when a call would come, there was no way to track quickly, but they knew how to do fake recalls for the ABA and other inspectors, I watched the sweet on the foreheads of people when nestle came to visit. Bottom line, PCA tested positive in GA and TX both, same strain, and it killed. Even is another Company had product mixed in with PCAs that was (which is not the case) , PCA tested positive all over the place and thus has responsibility.