The first wrongful death lawsuit has been filed in California against Safeway Inc. over those commercially produced and prepackaged caramel apples now the subject of a 10-state Listeria outbreak responsible for five deaths so far. The wrongful death action naming Safeway Inc. as the defendant was filed by James Raymond Frey on behalf of his late wife, Shirlee Jean Frey, 81, and her estate. The lawsuit claims she was a victim of the deadly outbreak. She and Mr. Frey, 87, were both longtime residents of California. The Centers for Disease Control and Prevention (CDC) reports the 10-state outbreak of a genetically indistinguishable strain of the Listeria pathogen had infected 29 people as of Monday, Dec. 22, and all have required hospitalization. States with illnesses associated with the outbreak strain are: Arizona (4), California (1), Minnesota (4), Missouri (5), New Mexico (5), North Carolina (1), Texas (4), Utah (1) Washington (1), and Wisconsin (3). CDC’s investigation has found that the packaged caramel apples are the mostly likely source of the Listeria contamination. The agency reports that state and local health officials who have interviewed 18 of the sickened individuals say 83 percent remembered eating the suspect caramel apples. The investigation is not over. “At this time, no illnesses related to this outbreak have been linked to apples that are not caramel-coated and not prepackaged or to caramel candy,” states the complaint filed Monday in California Superior Court in Santa Clara County. Lawyers for Mr. Frey also stated in the complaint that CDC is working to identify specific brands that produced and packaged the caramel apples. In the meantime, attorneys Harry Stern of San Francisco’s Rains Lucia Stern and William D. Marler of Marler Clark, the national food-safety law firm based in Seattle, say that CDC has warned the public not to eat any caramel apples. This warning extends to plain caramel apples and those with nuts or other toppings. (Marler Clark also underwrites Food Safety News.) The wrongful death lawsuit seeks a jury trial for unspecified financial damages plus attorneys’ fees. Among its causes of action is a claim of “strict liability” that a Safeway ready-to-eat product tainted with the bacteria was sold to a customer. “Strict liability” means that a company is responsible whether or not it knew about the problem. Meanwhile, it was reported Monday that Safeway had removed the caramel apples from its shelves. “We are aware of the issue regarding caramel apples and have proactively removed the product from sale in our stores,” said Brian Dowling, the company’s vice president of public affairs, adding, “However, we are currently not aware of any illness tied to items purchased at our stores.” Listeria is one of the more deadly pathogens. The last Listeria outbreak causing multiple deaths came three years ago when Colorado-grown cantaloupe was contaminated with the bacteria, causing three dozen deaths. The so-called “opportunistic pathogen” is a significant danger to the elderly, pregnant woman, and others with compromised immune systems.