ALBANY, GA—United States of America v. Stewart Parnell et al began 346 weeks ago when food safety cops on the beat first identified an unusual multistate cluster of Salmonella Typhimurium. It would become the most deadly outbreak of foodborne illness experienced in the 21st century so far and among the top 10 of the modern era. The political reaction to this outbreak, more than any other, came when Congress passed and President Obama signed the Food Safety Modernization Act, the biggest change in food safety regulation in 70 years.

In the criminal case stemming from that outbreak, it’s been OK to talk about the 20,000 potential illnesses and the economic damages topping $1 billion that are attributed to it, but not about the nine deaths. The government agreed that the “probative value of such evidence might be outweighed by its prejudicial effect” in a criminal trial where the corporate officials had been charged with fraud and conspiracy and selling adulterated food in interstate commerce — not for causing illnesses and death. So forbidden has talking about the deaths been that Judge W. Louis Sands put the jury on trial after charges arose that some of them had discussed it during deliberations. That’s why it’s been 41 weeks since the defendants who went to trial were largely found guilty but have not yet been sentenced. Today and tomorrow, however, the deaths might come front and center because, among the pre-sentence business before the court, is a little matter called restitution. And the government wants a prominent food industry attorney, Alan M. Maxwell, to testify. When Peanut Corporation of America (PCA) filed for federal bankruptcy protection, Maxwell was named as the claims administrator. His job was to divvy up $12 million in liability insurance coverage that PCA had among the 123 eligible claims, including those for wrongful deaths. At trial, Dr. Ian Williams, chief epidemiologist for the U.S. Centers for Disease Control and Prevention (CDC), testified for the government. He called the PCA case “among the strongest (he has) ever seen linking specific food products with a company.” Williams said the nine people died as a result of the outbreak. “While the evidence was not introduced at trial, the government submits that this evidence is highly relevant for the Court to consider when applying the sentencing factors ….” government attorneys said. Maxwell is scheduled to testify today in federal court in Albany, GA. He wants his subpoena quashed and/or limited because what he knows concerns medical information that is supposed to remain confidential in bankruptcy proceedings and under federal law to protect patient records. Government attorneys say they can work around those concerns. Defendants Stewart and Michael Parnell have also objected to any mention of the deaths in their respective pre-sentence reports. Those are among the issues — in addition to the question of restitution — that the court plans to resolve over the next two days. Attorneys for Stewart Parnell said their client “objects to Alan M. Maxwell being qualified as an expert witness in this case for an additional reason (to those cited by Michael Parnell). Ostensibly, Mr. Maxwell will testify as to whether certain individuals suffered from salmonellosis and provide methodology used to distribute the Hartford Insurance funds. As to the latter, the assignment of funds from the Hartford Insurance policy is immaterial to the issues to be determined by this Court.” “As to the former,” Parnell’s attorneys continued, “Mr. Maxwell is not a medical doctor, not an epidemiologist, nor did he perform any direct independent analysis to determine whether the symptoms included in the medical records provided by the government are causally related to salmonella exposure.” In short, they want Maxwell excluded from testifying as an expert witness. In their response, government attorneys said that nothing about the illnesses or deaths should come as any surprise to the defendants. “The issue of the illnesses and deaths resulting from the salmonella outbreak was the subject of much pre-trial litigation in this case,” they said. If the court is successful in resolving all other issues in the next two days, it will leave only the sentencing of the five defendants to complete the criminal prosecution that began with the unsealing of indictments in February 2013. Two defendants — Samuel Lightsey and Daniel Kilgore — reached agreements with the government that saw them plead guilty to some charges in exchange for consideration at sentencing. The three other defendants — the Parnell brothers and Mary Wilkerson — were convicted by a jury last September after a nearly two-month trial. Stewart Parnell was the owner and chief executive officer of the privately held PCA, which had facilities in Georgia, Virginia and Texas. His peanut broker brother, Michael Parnell, was instrumental in bringing business to the company. The other three were managers at the company’s peanut processing plant in Blakely, GA. Lightsey was plant manager, Kilgore was operations manager, and Wilkerson was quality control manager. (To sign up for a free subscription to Food Safety News, click here.)