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Smith v. Frontera Produce, Ltd.

United States District Court, Northern District of Indiana, South Bend Division

September 11, 2014

FRONTERA PRODUCE, LTD, et al., Defendants.


RUDY LOZANO, Judge United States District Court

This matter is before the Court on Primus Group Inc.’s Motion to Dismiss Plaintiff’s Complaint and Brief in Support (DE# 10), filed on September 17, 2013. For the reasons set forth below, this motion is DENIED.


Plaintiff, Debora L. Smith, brought suit against Defendants for the wrongful death of her father, Donald Dechow. Smith alleges her father contracted Listeria monocytogenes as a result of eating cantaloupe that was produced by Jensen Farms. Smith alleges Defendant Primus Group (“Primus”) is liable in this case because Primus was in control of, and negligent in, auditing Jensen Farms growing and packing facility shortly before the Listeria monocytogenes outbreak. Primus has filed the instant motion to dismiss, arguing that Smith has not adequately pleaded a negligence claim against it.[1]



The following facts are based on the allegations contained in the complaint, which this Court must take as true at this stage in the litigation. Plaintiff, Deborah Smith, is the daughter of Donald Dechow, deceased, and she is also the court-appointed personal representative of the Estate of Donald Dechow. (Cmplt ¶ 1). Defendant, Primus Group, Inc. d/b/a “Primus Labs” (“Primus”) was a company that provided auditing services for businesses involved in the manufacture and sale of food products. (Cmplt ¶ 4). Primus retained the services of subcontractors for some of its auditing, including the audit of Jensen Farms, the manufacturer, distributor and seller of the cantaloupe at issue in this case. (Cmplt ¶ 4).

On September 2, 2011, the Colorado Department of Public Health and Environment (“CDPHE”) began investigating an outbreak of Listeriosis infections in Colorado. (Cmplt ¶ 8). CDPHE announced that the source of the outbreak was contaminated cantaloupes grown by Jensen Farms. (Cmplt ¶ 11). The Food and Drug Administration (“FDA”) conducted an on-site investigation of the Jensen Farms facility and collected a total of nine positive samples of Listeria monocytogenes from various locations throughout the facility. (Cmplt ¶ 13).

Prior to the listeria outbreak, Jensen Farms or Frontera, contracted with Primus to conduct an audit of Jensen Farms’ facilities, including their growing areas and packing house. (Cmplt ¶ 14). Primus entered into an agreement to ensure that the facilities, premises and procedures used by Jensen Farms in the production of cantaloupes met or exceeded applicable standards of care. (Cmplt ¶ 15). It was the intent of these contracting parties to ensure that the food products Jensen Farms produced, and that Frontera distributed, would be of high quality for consumers, and would not be contaminated by potentially lethal pathogens, such as Listeria monocytogenes. (Cmplt ¶ 16). Frontera represented to the public and retail sellers that its cantaloupes were “Primus Certified, ” to induce retailers to buy their cantaloupes and induce the public to purchase their cantaloupes. (Cmplt ¶¶ 17, 18).

Primus selected and hired Bio Food Safety, Inc. to conduct the audit of Jensen Farms. (Cmplt ¶ 19). Primus and Bio Food Safety held themselves out as experts in the field of food safety. (Cmplt ¶ 20). By auditing companies involved in the production and distribution of food products, Primus and Bio Food Safety intended to aid these companies in ensuring that the food produced was of high quality, fit for human consumption, and not contaminated by any potentially dangerous pathogens. (Cmplt ¶ 21). Bio Food Safety auditor James Dilorio conducted an audit at Jensen Farms’ ranchlands and packing facility around July 25, 2011, approximately one week before the CDC identified the first victim of the cantaloupe Listeria outbreak had consumed the contaminated cantaloupe. (Cmplt ¶ 22). Mr. Dilorio gave the Jensen Farms packing house a “superior” rating, and a score of 96%. (Cmplt ¶ 22).

After learning of the source of the nationwide cantaloupe outbreak, and positive environmental test for Listeria monocytogenes from the FDA, an environmental assessment was ordered for Jensen Farms. (Cmplt ¶ 24). Findings from this assessment, which were memorialized in the FDA’s October 19, 2011, report, included many deficiencies at Jensen Farms. (Cmplt ¶ 24). FDA officials cited multiple failures at Jensen Farms which “reflected a general lack of awareness of food safety principles.” (Cmplt ¶ 25).

Mr. Dilorio’s prior audit found many aspects of Jensen Farms’ facility, equipment and procedures- that the FDA heavily criticized- to be in “total compliance.” (Cmplt ¶ 26). Many of the substandard conditions and practices cited by the FDA should have caused Jensen Farms to receive a score that would have caused its packing house to fail Dilorio’s audit. (Cmplt ¶ 28). Mr. Dilorio misrepresented the conditions and practices at Jensen Farms’ packing house by giving it a “superior” rating and a score of 96%, despite the existence of conditions and practices that should have caused him to fail the facility. (Cmplt ¶ 29). Mr. Dilorio made other misrepresentations, including statements about the suitability of equipment in place at the packing house for the processing of cantaloupes - all of which were relied on by Jensen Farms as justification for continuing to use the conditions, practices or equipment for its processing of cantaloupes. (Cmplt ¶ 29).

At the time of the July 25, 2011, audit, Jensen Farms should not have passed, and should not have been approved for the manufacture and sale of cantaloupe. (Cmplt ¶ 30). The cantaloupe that caused Mr. Dechow’s Listeriosis death would have not been distributed by Jensen Farms and Frontera in the dangerous condition they were if Jensen Farms had not passed the audit. (Cmplt ¶ 30).

Plaintiff has brought a negligence claim against Primus[2], alleging Mr. Dilorio was negligent in ...

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