First came the  state warning, then retail removals, next was the recall, followed by national warnings, and now the first lawsuit.  The multi-state Listeria outbreak has played out this week like a carefully choreographed dance.  And it is not over.


Jensen Farms, the Holly, CO-based grower of Rocky Ford cantaloupes, and Wal-Mart Stores Inc. were sued Thursday by Colorado Springs residents Charles and Tammy Palmer. 

“Wal-Mart, Jensen Farms, and other food companies have a public responsibility to all consumers to sell and distribute food that is free and clear of dangerous adulterants such as Listeria–no exceptions, ” said the Palmer family’s attorney, William Marler. “In this case, a lapse in food safety assurance has relegated an innocent man to a hospital bed for a long time.”

Charles Palmer, 71,  fell ill with symptoms of listeriosis — the illness caused by Listeria — on August 30, including headache and fatigue.  The next morning, he was found unresponsive, and was rushed to the hospital where he remains.  He tested positive for the strain of Listeria involved in the outbreak.

Marler and John Riley, from the Greenwood Village, CO-based law firm of Montgomery Little & Soran, filed the lawsuit in El Paso County District Court.

Palmer purchased the Rocky Ford cantaloupe at the Wal-Mart on Razorback Road in Colorado Springs on or about Aug. 17. 

Palmer, a retired U.S. Marine Corps Master Sergeant, was one of the case patients whose illness prompted the investigation by the Colorado Department of Public Health and the Environment, which was announced on Sept. 2.

The attorneys are asking for an unspecified amount for damages suffered by their client, including reimbursement for current and ongoing medical expenses. 

Marler’s law firm, based in Seattle, specializes in representing victims of foodborne illness and has recovered more than $600 million for its clients.  (Marler is also the publisher of Food Safety News.)

The day after Jensen Farms recalled as many as 4.5 million of the Rocky Ford cantaloupes it shipped between July 29 and Sept. 10, the U.S. Food and Drug Administration (FDA) warned the public not to eat the recalled product. Jensen Farms distributed Rocky Ford cantaloupes to at least 17 states.

Since mid-August, 22 people have been infected with the outbreak-associated strains of Listeria monocytogenes in seven states.  The number of infected persons identified in each state: Colorado (12), Indiana (1), Nebraska (1), New Mexico (4), Oklahoma (1), Texas (2), and West Virginia (1). Two deaths have been reported, one in Colorado and one in New Mexico.

These numbers are likely to grow as states like New Mexico have Listeria cases and deaths that have not yet been linked to the Rocky Ford cantaloupe outbreak by DNA fingerprinting.   Further, with the incubation period for Listeria running as long as 70 days, it is possible that some cantaloupe eaters are infected but have not yet come down with symptoms.

Public health officials in Colorado say people in high risk groups — the elderly and pregnant women especially — should avoid eating whole cantaloupe from the entire Rocky Ford growing region.  Others — like New Mexico and Texas health authorities — are saying people should avoid eating Rocky Ford cantaloupes period, and especially those from Jensen Farms.

The recalled cantaloupes were distributed to Illinois, Wyoming, Tennessee, Utah, Texas, Colorado, Minnesota, Kansas, New Mexico, North Carolina, Missouri, Nebraska , Oklahoma, Arizona, New Jersey, New York and Pennsylvania. 

Produce distributors in those states, however, may have sent the Jensen Farms cantaloupes even further.

Rocky Ford cantaloupes, popular for their sweetness, are grown only in Colorado’s Arkansas River Valley. The area’s hot days and relatively cool nights are said to be responsible for their unique flavor. In the 1880s, near the town of Rocky Ford, a local farmer named George W. Swink became the first melon grower in the valley.

Rocky Ford cantaloupes grew into more than a local brand because the Atchison, Topeka & Santa Fe Railroad also ran along the Arkansas River. The melons were carried and served on the Santa Fe’s fast passenger trains, like the Angel, the Saint and the Super Chief, to both the east and west.