Tainted Cantaloupes Behind Deadliest Food-Borne Outbreak


Food Safety Lawyer Representing 26 Affected Families Has Filed 8 Suits

Marler has represented thousands of victims of food-borne illness since 1993, when he won a $15.6 million settlement from Jack in the Box for Brianne Kiner, who survived a life-threatening infection with E. coli 0157:H7 from a tainted hamburger.

So far, he has filed eight lawsuits against Jensen Farms and Frontera, the Texas-based wholesaler that handled the melons.

"We also will be suing the grocery stores," he said.

He estimated that the cost of litigation for 139 people sickened and 29 dead "is probably $125 million to $150 million -- what they're going to have to pay out in damages, in past medical costs, in future medical costs."

The monetary costs extend beyond that, he said, to the cost of the recall and the cost to other growers whose cantaloupes went unsold because of fear.

Then, there are the psychic costs that make eating some fresh fruits and vegetables seem more risky than eating processed foods with artery-clogging fats.

The current outbreak, which has spread to 28 states, most recently Nevada and Utah, was traced in September to Jensen Farms. On Sept. 14, the FDA announced that Jensen Farms had voluntarily recalled whole cantaloupes, and subsequently Carol's Cuts of Kansas City and Fruit Fresh up of Buffalo, N.Y., recalled cut cantaloupe and cut mixed fruit containing cantaloupe produced by Jensen Farms.

FDA and Colorado inspectors who visited the Jensen processing plant on Sept. 10 detected listeria on machinery, and found some of the equipment couldn't easily be cleaned and sanitized, according to an FDA assessment released on Oct. 19.

"Here you've got listeria, which loves cool, wet environments," Marler said. "You basically have a washing and packing facility that wasn't cleaning the cantaloupe, it was infecting the cantaloupe."

Outrage at contamination in Chicago's meat-packing plants, fueled by Upton Sinclair's graphic depictions in his novel "The Jungle," led to passage of the Pure Food and Drug Act in 1906 and eventually to creation of the Food and Drug Administration. Yet more than 100 years later, the most advanced country in the world remains plagued by food-related illnesses. Asked why, Marler blamed human nature.

"Humans make mistakes," Marler said. "Humans don't pay attention to details. The question is how do you set up systems that help humans not make mistakes and how do you help them pay attention to details?"

Some companies do a good job, he said.

"A lot of companies out there make food safe every single day and they never poison anybody," he added.

Some industries have shown they can set and follow minimum standards for bacterial and viral contamination. He cited the example of the "leafy green industry," which got together and set up minimum standards after a 2006 E. coli outbreak traced to fresh spinach sickened more than 200 people and killed three.

Since 2006, "Have we had a couple of outbreaks involving leafy greens? Yes. Have they been big? No. Do I expect big ones in the future? No," he said.

"The problem we have is we don't really set hard standards that everyone has to play by," Marler said. "And we have no inspections because the FDA inspection force has been absolutely decimated over the last decades, so these plants never get inspected."

The country needs a system that works consistently, so that "you don't feel that every time you go to the fresh fruit and vegetable aisle, or the salad bar, you think, 'Is this going to be my last time?'"

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