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The Epidemic of Food-borne Illness

Written By: Tyler Shroyer

11/17/2014

Outbreaks of food-borne illnesses cause sickness and deaths every year in the United States.[1] Litigation resulting from these injuries to consumers costs the food industry millions of dollars in claims and legal fees annually.[2] In response to this risk, many grocery stores now require suppliers, growers, packers, processors and manufacturers of food to prove adherence to rigid standards for safety and quality.[3] The certifications are used as a marketing tool and additionally provide some level of safety and quality control.[4] To prove that these rigid standards are met, private third party auditing companies are routinely hired by growers to certify compliance thus assuring growers a market in which to sell their produce.[5] This article will discuss the liability of a food auditor to the consumer for negligence in conducting an audit that fails to identify a microbiological risk which later results in the introduction of adulterated food into the stream of commerce causing injury or death to the consumer. There is a lack of consensus on whether the duty of the food auditor extends to the end consumer and whether injury to the consumer is foreseeable under the circumstances. The determination that a duty is owed by a food auditor to grocery stores and consumers will have a substantial impact on the food industry.

Facts

On September 19, 2011, the Food and Drug Administration (FDA) announced that it had conducted an investigation in response to a multi-state outbreak of Listeria which resulted in 33 deaths and hundreds of illnesses.[6] The investigation initially discovered Listeria in samples of Jensen Farm's Rocky Ford-brand cantaloupe from a Denver area store.[7] The FDA then inspected the Jensen Farms packing facility and discovered Listeria on samples taken from equipment and cantaloupe.[8] Based upon DNA testing, the FDA confirmed that the Listeria bacteria in the Jensen Farm's processing facility was the culprit in the multi-state outbreak.[9] The report issued by the FDA concluded that Jensen Farms exhibited "a general lack of awareness of food safety principles.[10]"[11] The FDA identified several deficiencies at the farm which exposed the cantaloupe to microbiological contamination including:

1) failing to prevent condensation from cooling systems from draining directly onto the floor, 2) allowing water to pool around the food processing equipment due to inadequate drainage, 3) using food processing equipment which was difficult to clean, 4) failing to use antimicrobial solution (such as chlorine) to rinse the cantaloupes and, 5) failing to use equipment to remove field heat from the cantaloupes before they were placed into cold storage.[12]

Each of the above failures are known to increase the risk of contamination to cantaloupes with bacteria such as Listeria. Cantaloupes from other farms in the area were not linked to the outbreak.[13] Listeria is a bacterium that causes "a serious infection usually caused by eating contaminated food."[14] Listeria is particularly dangerous to older adults, pregnant women, newborns, and adults with weakened immune systems.[15]

Jensen Farms[16] was located in Holley, Colorado and was operated by farmers Eric and Ryan Jensen.[17] In 2010 and 2011, the brothers decided to make significant changes in how the cantaloupes were cleaned before distribution.[18] The brothers began using a potato sorter that was retro-fitted with melon-scrubbing brushes to clean the melons.[19] The potato sorter, however, allowed dirty water to come in contact with the melons resulting in contamination after they had been cleaned.[20] The Jensen brothers also failed to rinse the cantaloupes with chlorine contrary to industry standards.[21] Farmers in the industry routinely used chlorine rinses to kill bacterium such as Listeria.[22] As a result of these failures, Jensen Farms negligently contaminated cantaloupes which were subsequently introduced into the stream of commerce.[23] The cantaloupes from Jensen Farms were distributed throughout the country by Frontera Inc., a Texas food distributor.[24]

Prior to distribution both Frontera[25] and Jensen Farms contracted with Primus Labs to conduct a food audit of the Jensen Farms packinghouse.[26] The purpose of the audit was to examine and certify whether the facilities, premises, and procedures at Jensen Farms met the FDA standards of care for the production of cantaloupe.[27] The certification by Primus was also used to prove that Jensen Farms met standards for safety and quality[28].[29]

On July 25, 2011 Jensen Farms was given[30] a "superior" rating, with a score of 96%.[31] This score certified that Jensen Farm's equipment and procedures were in substantial compliance with industry standards.[32] The audit did reveal several deficiencies of the Jensen Farm's facility including: "1) The presence of wood on the packing tables which can house bacteria and cause splinters, 2) the lack of hot water at hand washing stations, and 3) open doors exposing the facility to pest infestation."[33] After the "superior rating" by the food auditor, Jensen Farms began to distribute cantaloupes from their farm. Jensen Farms marketed their cantaloupes as "Primus certified".[34] Within one week of the certification, customers began to fall ill and die from adulterated cantaloupes from Jensen Farms.

This situation raises an important legal question which is the focus of this note. Do private third party auditors owe a duty to consumers when food-borne injury occurs and is such injury foreseeable?

Procedural History

Lawsuits on behalf of the victims were filed in Arkansas, Colorado, Illinois, Kansas, Louisiana, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma and Texas.[35] Jensen farms declared bankruptcy and the Jensen brothers were indicted on criminal charges.[36] The plaintiffs in these cases moved to join Primus as a party. The plaintiffs argue that Primus, as a food auditor, owes a duty to the plaintiffs and the negligent actions of Primus were a proximate result of death and injury. Primus Labs has also filed motions for dismissal of these claims arguing that there is no duty owed to the plaintiff and that the injuries were not foreseeable. Therefore, they argue, no liability exists. The rulings on these issues have created a split in the courts without clear consensus on whether a duty exists under these circumstances and whether the injuries were foreseeable. In determining the existence of a duty, courts have examined issues surrounding foreseeability, chain of supply, contractual privity and the Restatement of Torts.

Prior Law

A. Foreseeability

In Underwood v. Jensen Farms[37] the Court analyzed whether Primus, as a third party food auditor, owed a duty to the consumer of the food products.[38] In Underwood, the court held that "[t]o impose a duty on auditors absent a showing that such auditors maintained some control over the distribution of the manufactured goods would be illogical and impose an unreasonable burden on third-party auditors."[39] In determining the existence of a duty the court also considered "whether the Plaintiff's injury was foreseeable to the auditor at the time the allegedly negligent audit was conducted."[40] The court noted that, "the foreseeability component of duty is different than the foreseeability element of proximate cause. The latter is concerned specifically with whether and to what extent the defendant's conduct foreseeably and substantially caused the injury that occurred."[41] The primary factor used by the court in determining the existence of a duty was whether the defendant could reasonably foresee the potential injury that could occur to the plaintiff, as a result of the audit.[42] The court in Underwood concluded that:

"the connection between the July 25, 2011 [a]udit and the onset of the Plaintiff's illness [is] too remote in both time and circumstance. Significantly, Plaintiff has failed to plead facts sufficient to establish that the contaminated cantaloupe would not have been distributed if Primus had given Jensen Farms unsatisfactory audit results."[43]

The court in Underwood initially concluded that there were insufficient facts to establish that it was foreseeable that a faulty audit would cause illness to a consumer.[44] However, the Court in Underwood granted a motion to reconsider in March of 2014.[45] The court was persuaded to reconsider the facts when information surfaced showing that Frontera admitted "if it had knowledge of the audit results, it would not have distributed the cantaloupe that caused the plaintiff's Listeriosis."[46]

The court in Corsi v. Jensen Farms[47] came to a similar initial conclusion, ruling that there was not enough evidence plead in the complaint to conclude that "Primus had any control over whether Jensen Farm cantaloupes were distributed or that the "superior rating" allowed the cantaloupes to be distributed.[48]"[49] The court in Corsi has not granted a motion to reconsider.[50]

B. Chain of Supply

The Court in Hayes v. Frontera Produce, Ltd[51] applied the supply chain theory in analyzing whether a duty existed on the part of Primus to the plaintiffs. A chain of supply examines the length of the chain of distributors in determining existence of a duty. Primus Labs argued the chain of supply in this case was too long for liability to carry all the way through the chain to the consumer. In Hayes the plaintiffs alleged that Primus owed a duty of reasonable care to the ultimate consumers of Jensen Farm's products.[52] The court considered whether the chain of supply was so long as to sever any duty that Primus may have to the ultimate consumer.[53] The Court ruled that a long supply chain does not necessarily extinguish a duty.[54] The court however found that "the facts tying the results of the audit report to the decedent are extremely attenuated"[55] In Hayes,[56] the court concluded that Primus' audit report related to food safety but not to the absence of pathogens on individual pieces of fruit. The court held that "imputing liability to a third party that did not provide its report or services, either directly or indirectly, to a class of persons that would use those products, stretches the notion of duty beyond the jurisprudential standards."[57] The court in Hayes[58] left open the door for the existence of a duty in certain situations involving extensive supply chains. The court however, ultimately concluded Primus did not owe a duty to the consumer based upon the chain of supply in this situation and the attenuated connection between the audit report and the consumer.[59]

C. Contractual Privity

Primus Labs also argues that the lack of privity between Primus Labs and the consumer establishes the fact there is no legal duty. Courts have held, however, that the lack of contractual privity does not necessarily preclude the finding of a duty.[60] In the case Barrie v. V.P. Exterminators, Inc.[61] a termite inspector was held liable to the buyers of a house even though he was initially hired by the sellers and lacked contractual privity.[62] The Barrie court found that it was foreseeable for the termite inspector's report to be relied upon in a potential sale of the house, therefore establishing a duty regardless of a lack of privity.[63] In Gulf Production Co., Inc. v. Hoover Oilfield Supply, Inc.[64], a pipe supply contractor provided specifications for pipes which were subject to a specific mineral flow operating system.[65] The pipes failed, resulting in damage to the landowner.[66] The court found that "it was reasonably foreseeable that the land owner would use the information provided by the pipe supplier thus creating a duty of reasonable care."[67] In both cases, the third party did not have a contract with the defendant, however, the court still found that the defendant owed a duty to the third party.[68] The court reasoned that a duty exists when there is involvement in a "common underlying transaction"[69] despite the lack of contractual privity.[70]

D. Restatement (Second) of Torts

The Restatement (Second) of Torts is instructive in determining liability to a third party. The Restatement (Second) of Torts § 311 states that:

One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken. Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.[71]

Restatement (Second) of torts § 324A also imposes liability on:

one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) his undertaking to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.[72]

Courts have applied these Restatement sections to cases that involved companies who negligently conducted safety inspections that resulted in injuries for others.[73]

Analysis

The first element in any negligence claim is to establish a duty.[74] Duty is defined as "an obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risk."[75] The liability of Primus labs for damages to the consumer is initially dependent upon the existence of a duty to consumers.

The court in Underwood[76] discusses the foreseeability aspect of duty[77]. The question becomes whether or not the tortfeasor could foresee the danger that might occur from negligence in a food audit. Foreseeability, in general, was articulated in the famous case Palsgraf v. Long Island R. Co,[78] however, this "foreseeability component of duty is different than the foreseeability element of proximate cause. The latter is concerned specifically with whether and to what extent the defendant's conduct foreseeability and substantially caused the injury that occurred."[79] The foreseeability component of duty, as applied to food safety cases, is concerned with "whether the Plaintiff's injury was foreseeable to the auditor at the time the allegedly negligent audit was conducted."[80] When applying this standard, in order for duty to be imposed on Primus, it must be proven that it was foreseeable at the time of the audit that their actions could cause harm. In essence, the primary determination in the existence of a duty is whether Primus could reasonably foresee that a potential injury from a negligent audit could occur to a consumer. In determining foreseeability, the courts analyze what a reasonable person would be able to foresee under the circumstances.[81]

Primus has conducted food audits for over 25 years and should recognize that their rating will be used to market a farmer's produce and be relied upon by the grocery store and the ultimate consumer.[82] Primus claims on their website that farmers and packinghouses who receive a third party audit can use the ratings from that audit as enhanced credibility, verification of due diligence, and a new marketing tool.[83] Therefore, not only did Jensen Farms rely on the Primus audit, but distributors and grocery stores continued to rely on the rating by Primus when deciding from which merchant to purchase the food products. Primus should have known that Jensen Farms was relying on their audit to identify any potential source of bacterial exposure. Primus also should have known that the distributor, Frontera Produce, used their superior rating to place their seal of approval "Primus certified" on the product. This certification was used to assure grocers and consumers that the cantaloupe was safe for consumption.[84] It is foreseeable that the "superior rating" of Primus would be used to market the cantaloupes and that the grocery stores would rely upon this "superior rating" as assurance of high quality products for their customers. In a global marketplace it is unrealistic to expect grocers to test all the varied products on their shelves from around the world. Any reasonable auditor should foresee that the rating of the product will be relied upon by both the distributor and the grocer. The "Primus certified" label is essential to the grocery store when deciding to put the product on the shelf. Primus cannot simply ignore how their "superior rating" will be used throughout the chain of supply. Primus should recognize that their rating plays a significant role in cantaloupe making it to the grocery shelf. The issue is not whether Primus should foresee the specific injury, but whether a reasonable auditor would foresee the reliance that is placed on the inspection which allows the cantaloupes to reach the shelves. The auditor understands that a farm which does not meet minimum standards would lose its market for its cantaloupes while a highly rated farm would enjoy potential wide distribution of its cantaloupes. In the case of Jensen Farms, a competent inspection would have resulted in failing the audit and effectively eliminating a market, thereby preventing any of the Jensen Farms cantaloupes from entering the stream of commerce. Therefore, it is reasonable to assume that Primus should have foreseen that their audit and subsequent rating, would have a substantial impact downstream on the chain of supply. They also should have foreseen that when they certify a facility, the products from that facility will reach the stream of commerce. In conclusion, "but for"[85] Primus giving the Jensen facility a "superior rating", tainted melons would not have reached the stream of commerce. Primus failed to reveal the deficiencies at Jensen Farms which increased the risk of microbiologic contamination.[86]

Primus contends that they only owe a duty to Jensen Farms and Frontera Produce, with whom they had contracted. Primus also contends that any use of the audit beyond its presentation to Jensen Farms was out of their control. The "Primus certified" label however, would indicate that the results of the audit were expected to be relied upon in the stream of commerce. Jensen Farms paid for an audit in part to prove compliance to grocery stores. Primus's contention that they had no control over how Jensen Farms used its certification rating may be true, however, Primus should expect a customer to use the superior rating to its economic advantage in selling cantaloupes. For these reasons the courts should recognize the economic reality at play and find that a reasonably prudent food auditor would have an understanding that a superior certification would be used to market the cantaloupe, therefore creating a duty under law.

Chain of Supply

Chain of supply was also discussed by the courts. The court in Hayes[87] ruled that the chain of supply in this case was long enough to sever any duty that Primus may owe.[88] The court reasoned that since Primus did not have oversight over anything other than the initial audit, it would be a "stretch of duty beyond the jurisprudential standards"[89] to rule in favor of the consumer.[90] However, the Plaintiffs argued that this logic is flawed because no matter how many different hands the food passes through, Primus was still the ultimate decision maker who initiated the chain of events by certifying a "superior rating" for Jensen facilities.[91]

Primus argued that an intervening act of negligence at the Jensen farms after the audit was conducted severs the chain of liability.[92] An intervening act is defined as "a force that actively operates in producing harm to another after the actor has already committed his negligent act or omission."[93] The general rule is that a defendant will only be held liable for harm caused by foreseeable intervening forces.[94] Primus argues that under this rationale, even though Primus conducted a negligent audit, anything that happened beyond the audit is not under their control and therefore they should not be held liable.[95] Additionally, Primus argues that it was not foreseeable that their negligent audit would lead to a listeria outbreak of this magnitude.[96] The plaintiff argues that the faulty audit and the listeria contamination are so closely attenuated that Primus should foresee that a faulty audit could contribute to a listeria outbreak. Therefore, the plaintiff argues that there are not sufficient intervening forces to sever the chain of liability to Primus.[97]

Contractual Privity

The issue of contractual privity[98] was also addressed by the courts in determining the existence of duty. Cases from the financial auditing industry can provide some guidance considering the similarities between the food auditing industry and the financial auditing industry. Analysis of negligent financial auditing cases reveals three different approaches employed by the court in determining liability of third parties. In Bily v. Arthor Young & Co.[99], the court held that auditors can only be held liable to those with whom there is contractual privity.[100] Similarly, Justice Cardozo in Ultramares Corp. V. Touche[101] wrote that "expanding the scope of duty beyond the bound of privity could lead to limitless auditor liability."[102] Primus urges the court to accept the narrow view of contractual privity set forth in these two cases thereby avoiding liability since there was neither a contract nor privity between Primus and the grocery stores or consumers.

In a second approach courts have incorporated foreseeability in determining the existence of a duty. Under this approach, the court in Citizens State Bank v. Timm, Schmidt, & Co.[103], was willing to "extend duty to a party whose reliance on an audit is foreseeable"[104] even when there was no contractual privity.[105] The court in Barrie[106] and Gulf Production Co.[107] case, adopted a similar approach in finding that a lack of privity does not always equate to a lack of duty. The Barrie[108] court applied four factors in its analysis, to determine the existence of auditors. The four factors are whether:

1) the defendant could expect the plaintiff would receive and rely upon the information at issue; 2) whether the plaintiff was part of a limited group for whose benefit the information was provided; 3) whether the defendant received compensation for preparing the information; and 4) whether finding the defendant owed the plaintiff a duty would serve public policy.[109]

The analysis of these four factors is helpful in determining whether a third party auditor such as Primus owes a duty to the consumer. The first prong asks if the defendant could expect the plaintiff would receive and rely upon the information at issue.[110] When applying the first prong the plaintiff must show that it is foreseeable the cantaloupes would be distributed, sold, and then consumed as a result of relying on initial Primus audit. The plaintiffs would argue that since the grocery store values "Primus certified" products and relies on the initial audit that therefore, the consumer is also relying on the initial audit by Primus. In response, Primus argues that their audit was only intended for Jensen Farms and they would not expect the consumer to rely on the "Primus certified" label. Primus allows the produce to be identified as "Primus certified". The second prong of the Barie asks whether the plaintiff was part of a limited group for whose benefit the information was provided.[111] Under this prong the plaintiff argues that the audit was intended for everyone who is involved in the chain of supply including the consumer. However, Primus argues that the audit was intended only for Jensen Farms and Frontera because Primus was only in contractual privity with those two entities and no one else. The third prong asks whether the defendant received compensation for preparing the information.[112] This prong is clearly met because it is documented that Primus received payment from Jensen Farms to conduct the audit. The fourth prong asks whether finding the defendant owed the plaintiff a duty would serve public policy.[113] The plaintiff argues that public policy is set forth by imposing rules for food auditors to follow when performing audits and these rules help to ensure the smooth production of the American food industry. Therefore imposing a duty on the defendant would help serve a public policy. The plaintiffs also argue that it serves a greater public policy interest to hold auditors responsible for negligence thereby giving them an incentive to perform the audit which would help to protect unsuspecting consumers. Primus argues that they already have high standards when performing audits.

The third approach by the courts which was used in the financial realm is to examine the intent of the contracting parties.[114] Expectations of each party of the contractual transaction must be determined. This approach attempts to interpret what each side was expecting as the "end and aim"[115] of the contractual transaction.[116] This argument widens the scope of liability for food safety auditors. The purpose of the audit was to examine and certify whether the facilities, premises, and procedures at Jensen Farms met the FDA standards of care for the production of cantaloupe.[117] The certification by Primus was also used to show that Jensen Farms met standards for safety and quality[118]. Therefore an auditor who gives a factory a "superior rating" would be endorsing that factory would be in compliance with industry standards ensuring a safe food product. Primus argues the factors causing contamination are out of their control, however, these same factors were not identified in the initial audit by Primus. The outbreak was caused by listeria which occurred as a result of the defects of the packing plant.

Restatement (Second) of Torts

The courts also addressed the plaintiffs argument that Primus owed a duty to the consumer under Restatement (Second of Torts) § 311[119] and § 324A[120]. The Restatement (Second) of Torts § 311[121] states that:

One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken. Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.[122]

In applying this standard to Primus, the plaintiff's argue that Primus negligently gave false information to Jensen Farms. Jensen Farms continued the process of selling cantaloupe without any changes in their operations based on reliance of the superior rating. Jensen Farms was unaware that they were producing tainted cantaloupe. If the plaintiffs show that the downstream distributors and consumers reasonably relied upon the audit the Restatement of Torts would impose. Restatement of Torts also provides for a cause of action to persons that were put in peril by the negligent audit. Clearly the plaintiffs would be recognized as falling into that class.[123]. Additionally, the Restatement (Second) of Torts § 324A[124], states:

one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) his undertaking to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.[125]

When applying this standard to Primus, the plaintiff can claim that Primus took the affirmative action of providing a safety service to Jensen Farms. Therefore, under Restatement of Torts 324A, Primus would be responsible for any physical harm that results from their failure to exercise reasonable care during the performance of these services. Primus argues their audit was not for the protection of third parties, but only for the use of Jensen Farms. Plaintiffs, however, contend that the audit was for the purpose of food safety to third parties. Therefore, it can be established that Primus owed a duty to the consumer based on the language of Restatement (Second) of Torts § 324A[126].

The plaintiff's § 324A argument is also supported by case Hauser v. Primus Group, Inc.[127] In Hauser, the court ruled that "Colorado case law supports the determination that Primus owed a duty to the plaintiff, pursuant to Restatement of Torts § 324A."[128] The court elaborated that "Primus clearly undertook a contractual obligation to perform a duty by Jensen to the public under Restatement 324A(b)[129]. While the "special relationship" exception to the nonfeasance standard does not apply, the facts of this case support a finding that Primus assumed a duty of reasonable care for protection of both Jensen and third-party consumers."[130] Additionally, courts in Louisiana, Nebraska, Oklahoma and others have relied on § 324A in denying Primus's motions to dismiss.[131]

Public Policy Concerns

Public policy arguments weigh in favor of tort liability for food auditors when a negligent audit results in mass food-borne illness. The prophylactic effect of the tort system will result in a proper check and balance assuring a safe food supply for the country. Food auditors play an important role in protecting the end consumer from unseen dangers such as deadly bacteria. Without tort liability the food auditing industry would not be held accountable for its actions or lack of action. Grocery store chains are new requiring certifications from food auditors as a prerequisite to allowing the produce on the shelves. The motives behind the required certifications may be varied but one purpose is to protect the public from unseen tainted food. The FDA doesn't have enough resources to conduct regular inspections, so the third party audit companies fill an important vacuum.

The food auditors, however, face a conflict of interest in performing these audits as the auditors are paid by the farmer or processing plant. If an auditor assigns a poor rating to a packinghouse they would most likely hire a more friendly auditor in the future. The audit company will run the risk of losing future business if a poor rating is given to its customer. This enables the packinghouses to shop for the most lenient auditing company in order to obtain an underserved rating. This situation creates an inherent conflict of interest between an auditor and the packinghouse. In order to reign in this inherit conflict of interest public policy dictates that an underserved audit that negligently results in contaminated food should expose the audit company to civil liability. Potential civil liability will bring to bear more pressure on third party auditors to conduct higher quality audits and to adhere to strict standards when performing audits of facilities. This will result in a safe food supply and protect Americans from deadly food-borne disease. A safe food supply is a public policy of utmost importance. Exposure to the civil justice system will be a strong incentive for the food auditing companies to be vigilant in protecting this vital public interest.

On the other hand, if Courts rule in favor of Primus, the reliability of food audits will remain in the shadow of this inherent conflict of interest. The auditors will continue to conduct audits knowing that they bear no responsibility for what happens downstream in the chain of supply. This will only lead to an increased risk of another outbreak similar to the listeria outbreak that resulting in illness and death of many Americans.

The FDA does not have the resources to oversee all of the third party audits that take place. However, the FDA has proposed in the Food Safety Modernization Act efforts to implement Title III accreditation and monitoring of third-party auditors of imported food products. This is step in the right direction even though there still is not anything in this act with regard to regulating domestic auditors. With the increased use of third party audits in the United States, regulation of these third party audits is going to become necessary in order to preserve the quality of the American food supply.

Overall food safety, especially with regard to microbiological bacteria, is also an important public policy concern. Listeria and bacteria of this type is particularly dangerous because it is undetectable by the common consumer who cannot see it, taste it, or know about it without special tests. Food-borne bacteria can cause mass injury in a short matter of time as it did in this listeria outbreak. This listeria outbreak could not be eliminated until after it had killed thirty three and sickened hundreds. The proliferation of a single source of contamination has far reaching effects across the country because of wide distribution networks. The difficulty in timely tracking of a source of illness presents significant challenges. For this reason it is particularly important to prevent contaminations at the source. Food audits play this important role in protecting the food supply. A negligently performed audit can result in mass harm to consumers across the country within a very short period of time. For these reasons public policy requires accountability from the food audit companies under the civil tort law.

In conclusion, this note discussed the four major approaches that the courts have considered in addressing whether or not a third party auditor owes a duty to the consumer and has analyzed these approaches. There are valid arguments for both sides which explain why there is a divergence in the courts. The splits have created ambiguity in the area of food auditing and this important issue may ultimately be decided by the Supreme Court.[132] Not only does the outcome of this issue encompass major public policy concerns, but it will also dictate the future of the third party food auditing industry and the safety of the American food supply.


[1] "The CDC estimates that each year roughly 1 in 6 Americans gets sick, 128,000 are hospitalized, and 3,000 die of food-borne diseases." Centers for Disease Control and Prevention, CDC Estimates of Foodborne Illness in the United States, http://www.cdc.gov/foodborneburden/2011-foodborne-estimates.html, (last visited Oct. 14, 2014).

[2] Id.

[3] Id; "The purpose for recording food audits include 1) reduction in liability 2) reduction in repetitional risks and 3) increased sales." Ching-Fu Lin, Challenges to Third-Party Food Safety Audits and Certification, Harvard Law Bill of Health (December 5, 2013), http://blogs.law.harvard.edu/billofhealth/2013/12/05/challenges-to-third-party-food-safety-audits-and-certification/

[4] Ching-Fu Lin, Challenges to Third-Party Food Safety Audits and Certification, Harvard Law Bill of Health (December 5, 2013), http://blogs.law.harvard.edu/billofhealth/2013/12/05/challenges-to-third-party-food-safety-audits-and-certification/

[5] Id.

[6] Id.

[7] Hauser v. Frontera Produce LTD., No. 12CV1196 (Colorado Dis. Ct. 2013).

[8] Id.

[9] Id.

[10] Id.

[11] Food and Drug Administration (2012), Information on the Recalled Jensen Farms Whole Cantaloupes,http://www.fda.gov/Food/RecallsOutbreaksEmergencies/Outbreaks/ucm272372.htm (last visited Oct. 14, 2014).

[12] Id.

[13] Hauser v. Frontera Produce LTD., No. 12CV1196 (Colorado Dis. Ct. 2013).

[14] Listeria also known as Listeriosis is a serious infection usually caused by eating contaminated food. Centers for Disease Control and Prevention, Listeria, http://www.cdc.gov/listeria/index.html (last visited Oct. 14, 2014)

[15] Id.

[16] See Marler Clark Attorneys at Law, Jensen Farms Rocky Ford Cantaloupe Listeria Outbreak Lawsuits - Nationwide (2011), http://www.marlerclark.com/case_news/view/jensen-farms-rocky-ford-cantaloupe-listeria-outbreak-colorado-new-mexico (last visited Oct. 14, 2014) ("Jensen Farms declared Chapter 11 Bankruptcy on May 25, 2012").

[17] See Mary Beth Marklein, Cantaloupe Farmers Get No Prison Time in Disease Outbreak, USA Today (Jan 28, 2014), http://www.usatoday.com/story/news/nation/2014/01/28/sentencing-of-colorado-cantaloupe-farmers/4958671/

[18] See Food Safety News, The Outbreak: The Untold Story of Listeria Monocytogenes At Jensen Farms, http://www.foodsafetynews.com/files/2014/07/Attachment-No.-4.pdf (last visited Oct 14, 2014).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] See Food Safety News, The Outbreak: The Untold Story of Listeria Monocytogenes At Jensen Farms, http://www.foodsafetynews.com/files/2014/07/Attachment-No.-4.pdf (last visited Oct 14, 2014).

[24] Id.

[25] Frontera is a Texas based manufacturer, distributor and seller of agricultural products, Frontera Produce, About Us, http://www.fronteraproduce.com/about/ (last visited Oct. 14, 2014).

[26] See Primus Labs, Introduction, http://www.primuslabs.com/services/intronews.aspx (last visited Oct. 14, 2014).

[27] Drinkwalter v. Frontera Produce Ltd., 7:13-cv-05006-LSC-FG3 (Nebraska Dis. Ct. 2013).

[28] Id.

[29] Upon receiving the contract, Primus in turn subcontracted with Bio Food Safety Inc. Bio to actually perform the audit. Bio Food Safety Inc. was a food auditing company which takes on subcontracting jobs, Bio Food Safety, Inc., http://business-bankruptcies.com/cases/bio-food-safety-inc (last visited Nov 7, 2014).

[30] U.S. House of Representatives Committee on Energy and Commerce Committee Staff, Report on the Investigation of the Outbreak of Listeria Monocytogenes in Cantaloupe at Jensen Farms (Jan 10, 2012) https://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/analysis/20120110Listeria.pdf

[31] U.S. House of Representatives Committee on Energy and Commerce Committee Staff, Report on the Investigation of the Outbreak of Listeria Monocytogenes in Cantaloupe at Jensen Farms (Jan 10, 2012) https://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/analysis/20120110Listeria.pdf

[32] Id.

[33] Id.

[34] Id.

[35] See Marler Clark Attorneys at Law, Jensen Farms Rocky Ford Cantaloupe Listeria Outbreak Lawsuits - Nationwide (2011), http://www.marlerclark.com/case_news/view/jensen-farms-rocky-ford-cantaloupe-listeria-outbreak-colorado-new-mexico (last visited Oct. 14,2014).

[36] Additionally there were criminal proceedings brought against the Jensen brothers. "The brothers were sentenced to five years probation, including six months of in-home detention, for their role in the 2011 listeriosis outbreak that killed roughly three dozen Americans who consumed infected cantaloupe." The brothers were "also sentenced to 100 hours of community service and ordered to pay $150,000 in restitution in connection with the deadliest food outbreak in the United States in nearly 100 years." The Judge stated that, "no sentence of incarceration, restitution or financial penalty can undo the tragic damage done as a result of the contamination at Jensen Farms. Today's sentence serves as a powerful reminder of farmers' legal and moral responsibility for ensuring their product is safe. Because of the Jensen Farms case and this prosecution, changes have been made regarding how fruit is processed and transported across the country." Ray Sanchez, At sentencing, cantaloupe growers apologize for deadly listeria outbreak, CNN (Feb. 4, 2014), http://www.cnn.com/2014/01/28/justice/cantaloupe-listeria-deaths-sentencing/ (last visited Oct. 14, 2014).

[37] Underwood v. Jensen Farms, 2013 WL 6903751 (Oklahoma Dis. Ct. 2013).

[38] Id.

[39] Id.

[40] Id.

[41] McClure v. Sunshine Furniture, 283 P.3d 323, 329 (2012).

[42] Underwood v. Jensen Farms, 2013 WL 6903751 (Oklahoma Dis. Ct. 2013).

[43] Id.

[44] Underwood v. Jensen Farms, 6:11-CV-348-JHP (Oklahoma Dis. Ct. 2014), the court in Underwood later granted a motion to reconsider based upon new information that surfaced.

[45] Underwood v. Jensen Farms, 6:11-CV-348-JHP (Oklahoma Dis. Ct. 2014).

[46] Id.

[47] Corsi v. Jensen Farm, No. 2:12-cv-0052 (P.Wyo. Oct. 11, 2013).

[48] Id.

[49] The same conclusions were reached in Hauser v. Frontera Produce LTD., No. 12CB1196 (Colorado Dis. Ct. 2013); Humphrey v. Primus Group. Inc., 6:13-cv-03308-MDH (Missouri Dis. Ct. 2013); Lopez v. Frontera Produce. Ltd., 2014 WL 2949452 (Louisiana Dis. Ct. 2014).

[50] Id.

[51] Hayes v. Frontera Produce, Ltd., No. 3:12-cv-0588 (M.D. Louisiana Dis. Ct. 2014).

[52] Id.; ("the agency relationship between Primus and Bio Food Safety was enough to hold Primus liable for the actions of Bio Food Safety").

[53] Chain of supply has been hard to define. The hardest part about it is drawing that line of when the chain has gone too far. The court ruled that "where a railroad company delivers a defective freight car to a connecting line, it is not liable in damages to an employee of the latter who is injured by reason of such defects after the car has been inspected by the company receiving it." Missouri, K. & T. Ry. Co. v. Merril 59 L.R.A. 711 (1902).

[54] Id.

[55] Id.

[56] Hayes v. Frontera Produce, Ltd., No. 3:12-cv-0588 (M.D. Louisiana Dis. Ct. 2014).

[57] Id.

[58] Id.

[59] Id.

[60] Barrie v. V.P. Exterminators, Inc. 625 So.2d 1007 (1993) ; Gulf Production Co., Inc. V. Hoover Oilfield Supply, Inc., 672 F.Supp.2d 752 (E.D. La. 2009).

[61] Barrie v. V.P. Exterminators, Inc. 625 So.2d 1007 (1993).

[62] Id.

[63] Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (1993).

[64] Gulf Production Co., Inc. V. Hoover Oilfield Supply, Inc., 672 F.Supp.2d 752 (E.D. La. 2009).

[65] Id.

[66] Id.

[67] Id.

[68] see Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (1993); see also Gulf Production Co., Inc. v. Hoover Oilfield Supply, Inc., 672 F.Supp.2d 752 (E.D. La. 2009).

[69] Hayes v. Frontera Produce, Ltd., No. 3:12-cv-0588 (Louisiana Dis. Ct. 2014).

[70] see Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (1993); see also Gulf Production Co., Inc. v. Hoover Oilfield Supply, Inc., 672 F.Supp.2d 752 (E.D. La. 2009).

[71] Restatement (Second) of Torts § 311 (1965).

[72] Restatement (Second) of Torts § 324A.

[73] 2 Madden & Owen on Prod. Liab. § 19:8 (3d ed.).

[74] Kaplan Bar Review, 1L Edge Program (August 2013).

[75] Id.

[76] Underwood v. Jensen Farms, 2013 WL 6903751 (E.D. Oklahoma Dis Ct. 2013).

[77] Id.

[78] Palsgraf stated that "If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended." Foreseeability in tort law tends to limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows, otherwise, liability could be unlimited in scope." Palsgraf v. Long Island R. Co. 248 NY. 229 (1928).

[79] Id.

[80] Id.

[81] The reasonable person standard made its first appearance in the English case of Vaughan v. Menlove (1837) 132 ER 490 (CP); see also the landmark American case which discussed the reasonable person approach and developed a test when applying this standard. Chief Judge of the U.S. Court of Appeals for the Second Circuit, Judge Learned Hand, ruled " The owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions." United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947).

[82] See Primus Labs, Introduction, http://www.primuslabs.com/ (last visited Oct. 14, 2014).

[83] See Primus Labs, Services, http://www.primuslabs.com/services/audits.aspx (last visited Nov. 16,2014).

[84] Underwood v. Jensen Farms, 2013 WL 6903751 (E.D. Oklahoma Dis. Ct. 2013)

[85] See Cornell University Law School, But-for test, http://www.law.cornell.edu/wex/but-for_test (last visited Oct. 10, 2014)

[86] Hauser v. Frontera Produce LTD., No. 12CV1196 (Colorado Dis. Ct. 2013).

[87] Hayes v. Frontera Produce, Ltd., No. 3:12-cv-0588 (M.D. Louisiana Dis. Ct. 2014).

[88] Id.

[89] Id.

[90] Id.

[91] Id.

[92] Hayes v. Frontera Produce, Ltd., No. 3:12-cv-0588 (M.D. Louisiana Dis. Ct. 2014).

[93] "Usually when determining whether an intervening force is a superseding cause of harm to another you consider i) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the defendant's negligence; ii) the fact that its operation or the consequences thereof appear to be extraordinary and unforeseeable after the event; and iii) the fact that the intervening force is operating independently of any situation created by the defendant's negligence. Kaplan Bar Review, 1L Edge Program (August 2013).

[94] Id.

[95] Hayes v. Frontera Produce, Ltd., No. 3:12-cv-0588 (M.D. Louisiana Dis. Ct. 2014).

[96] Id.

[97] Onsager v. Frontera Product Ltd CV 12-66-BU-DWM-JCL (Montana Dis. Ct. 2013) ("ruled that there are sufficient facts for the plaintiff to have a negligence claim against Primus").

[98] See Privity of Contract in UCC Warranty Cases, 8-23 The Lawyer's Brief Article I (Dec 15, 2008), ( https://a.next.westlaw.com/Document/I04ceb248c64911dd93e8a76b30106ace/View/FullText.html?listSource=Search&navigationPath=Search%2fv3%2fsearch%2fresults%2fnavigation%2fi 0ad6040d000001490c350dcc492e2406%3fNav%3dANALYTICAL%26fragmentIdentifier%3dI04ceb248 c64911dd93e8a76b30106ace%26startIndex%3d1%26contextData%3d%2528sc.Search%2529%26tran sitionType%3dSearchItem&list=ANALYTICAL&rank=5&listPageSource=e11305ec32 48bcdfa99c1de00be2582f&originationContext=docHeader&contextData=(sc.Search)&transitionType=Document&docSource=a8cd7af102fb49989fa28c06c54a4d40 (last visited Oct 15, 2014).

[99] Bily v. Arthur Young & Co., 834 P.2d 745 (1992).

[100] See Bill Marler, Primus Labs - "We thought he (Jensen Farms Auditor) did a pretty good job", Marler Blog (Oct. 19, 2011) http://www.marlerblog.com/legal-cases/primuslabs-we-thought-he-jensen-farms-auditor-did-a-pretty-good-job/#.VDqvQtTF8fE

[101] Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931).

[102] Id.

[103] "However the difficult part of the "foreseeability" standard is that it is difficult to prove reliability." Citizens State Bank v. Timm, Schmidt, & Co., 335 N.W.2d 361 (1983).

[104] Id.

[105] Id.

[106] Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (1993)

[107] Gulf Production Co., Inc. V. Hoover Oilfield Supply, Inc., 672 F.Supp.2d 752 (E.D. La. 2009).

[108] Barrie v. V.P. Exterminators, Inc. 625 So.2d 1007 (1993).

[109] Id.

[110] Id.

[111] Id.

[112] Id.

[113] Id.

[114] Glenn K. Jackson, Inc. v. Roe, 273 F. 3d 1192, 1197-98 (9th Cir. 2001).

[115] Id.

[116] See Bill Marler, Primus Labs - "We thought the (Jensen Farms Auditor) did a pretty good job", Marler Blog (Oct. 19, 2011) http://www.marlerblog.com/legal-cases/primuslabs-we-thought-he-jensen-farms-auditor-did-a-pretty-good-job/#.VDqvQtTF8fE

[117] Drinkwalter v. Frontera Produce Ltd., 7:13-cv-05006-LSC-FG3 (Nebraska Dis. Ct. 2013).

[118] Id.

[119] Restatement (Second) of Torts § 311 (1965).

[120] Restatement (Second) of Torts § 324A (1965).

[121] Restatement (Second) of Torts § 311 (1965).

[122] Id.

[123] Id.

[124] Restatement (Second) of Torts § 324A (1965).

[125] Restatement (Second) of Torts § 324A.

[126] Id.

[127] Hauser v. Primus Group, Inc., 12CV1196 (Colorado Dis Ct. 2013).

[128] Id.

[129] Restatement (Second) of Torts § 324A.

[130] Hauser v. Primus Group, Inc., 12CV1196 (Colorado Dis Ct. 2013).

[131] Bill Marler, Three Years Since People Died from Cantaloupe, Marler Blog (last visited Nov 20,2014), http://www.marlerblog.com/lawyer-oped/three-years-since-people-died-from-cantaloupe/#.VG4DxjTF9if,

[132]Bill Marler, Three Years Since People Died from Cantaloupe, Marler Blog (last visited Nov 20,2014), http://www.marlerblog.com/lawyer-oped/three-years-since-people-died-from-cantaloupe/#.VG4DxjTF9if, "Currently there are nine wins for the plaintiff in cases Rutherford, Beach, Hauser, Onsager, Humphrey, Underwood, Gilbert, Drinkwalter and Broddock. The three losses for the plaintiff are in Corsi, Babcock and Lopez Order."

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