DENVERDoes a third-party food-safety auditor of a cantaloupe packinghouse owe a duty to consumers who purchase the fruit? Federal and state courts are presently grappling with that question in lawsuits that stem from one of the deadliest occurrences of foodborne illness in modern times: the 2011 Listeria outbreak that was traced to cantaloupes grown on the Colorado-based Jensen Farms.

Since 2011, victims of the contaminated cantaloupe and their families have moved to hold accountable Jensen Farms and others in the food distribution chain.

Jensen Farms is bankrupt and the brothers who operated the family-owned business were sentenced last month to five years of probation for their roles in an outbreak that a prosecutor called an "American tragedy."

Had a third-party auditor just failed an audit of the cantaloupe packinghouse rather than assigned Jensen Farms a "superior" rating, the tainted fruit that spread to 28 states and left nearly 40 dead would never have been distributed, according to Marler Clark, the food-safety law firm that has filed 46 lawsuits on behalf of victims.

It was Primus, the Santa Maria, Calif.-based food-safety auditor, that retained James Dilorio of Bio Food Safety to conduct the July 25, 2011 audit.

The issue presently dividing judges in several states, including California, Colorado, Oklahoma, Nebraska and Wyoming, is not whether Primus was careless and owes damages to victims, but rather whether plaintiffs can even assert a negligence claim against the food-safety auditor.

It appears there is no court precedent that has squarely addressed that particular question, although courts have ruled on the duties of third-party financial auditors, said Jeffrey Whittington, a Kaufman Borgeest & Ryan lawyer representing Primus.

Primus cannot be held liable for negligence unless it actually owed a duty to consumers.  Judges in Oklahoma and Wyoming found Primus owed no duty. A California judge also reached the same tentative decision.

Others in Colorado, Nebraska and Oklahoma reached different holdings, demonstrating that federal judges in the Sooner State don't even agree on the issue.

In deciding the motions, the judges didn't rule on the actual evidence but were required to accept the plaintiff's allegations as factual.

In a lawsuit brought by Doyle Underwood, who fell ill on Sept. 2, 2011, after purchasing a cantaloupe in Broken Bow, Okla., a federal judge in the Eastern District of Oklahoma examined whether the plaintiff's injury was foreseeable to Primus at the time of the audit.

"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," U.S. District Judge James Payne stated in his ruling dismissing the negligence claim against Primus. "To 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."

A Wyoming federal judge, Scott Skaudahl, reached a similar conclusion, pointing to an absence of facts in the complaint "suggesting Primus had any control over whether Jensen Farms' cantaloupes were distributed or that the 'superior rating' allowed the cantaloupes to be distributed." Skaudahl also dismissed a breach of contract claim against Primus. The plaintiff, Lydia Corsi, failed to reference contract terms by which the judge "could infer Primus undertook the food safety audit" for her benefit, he ruled.  

In Colorado, where Penny Hauser sued Primus and others on behalf of her late husband Mike Hauser, state judge G. David Miller of the 4th Judicial District dismissed a negligence claim against the auditor. But he changed his mind after reconsideration, holding that "Primus assumed a duty of reasonable care for the protection of both Jensen and third-party consumers."

In the Western District of Oklahoma, U.S. District Judge David Russell found alleged "facts to support that it was foreseeable at the time of the July 25, 2011, audit that if the audit was negligently conducted, contaminated cantaloupe would leave the Jensen Farms packing facility and ultimately end up in the hands of consumers and that these consumers could be harmed by eating such contaminated cantaloupe."

A federal judge in Nebraska also held that Primus "owed a duty of reasonable care" to Dale Braddock, who died on Jan. 1, 2012.

The latter rulings, denying Primus' requests to dismiss the negligence claims, simply allow the lawsuits to move forward. Discovery, the sometimes arduous and protracted phase in which the litigants exchange documents, depose witnesses and review the evidence, has barely begun. However, a voluminous amount of information related to the outbreak is already public, including findings from the Centers for Disease Control and Prevention (CDC) and the U.S. Food and Drug Administration (FDA).

Last year, plaintiffs and the defendantsincluding Primussought to resolve their disputes through mediation. The talks did not bear fruit, springing the litigation back to life.

Until recently, "those personal injury lawsuits have largely been stayed across the country pending some resolution efforts that were largely unsuccessful," said Drew Falkenstein, a Marler Clark lawyer.  

In Colorado, about two dozen state cases have been consolidated in Arapahoe County for the purposes of discovery and motions, Falkenstein said.

Falkenstein said there are approximately 65 lawsuits pending, including complaints that were filed by lawyers not affiliated with Marler Clark. 

Other defendants include the grocery chains that sold the cantaloupes such as Kroger Co. subsidiaries and Wal-Mart, as well as Frontera Produce, which marketed the fruit.

Attorney Bill Marler of Marler Clark said Wal-Mart has filed at least two third-party complaints against Primus in California and Wyoming. In Wyoming federal court, Wal-Mart brought a third-party complaint against Jensen Farms, Frontera Produce, Primus and Bio Food Safety. Wal-Mart contends it relied on Primus' food-safety expertise and audits.  

Jensen Farms also filed a lawsuit against Primus, assigning its rights in the complaint to plaintiffs in the personal injury lawsuits.

During the Jan. 28, 2014, criminal sentencing hearing of Eric and Ryan Jensen in Denver federal court,  some family members of victims called for others in the food chain to be held accountable.

Falkenstein expressed optimism that the lawsuits would not linger for several more years. But Whittington said he didn't think the cases would be ready for trial until late 2015 or even 2016.

He noted that plaintiffs have amended a number of lawsuits, and lawyers on both sides anticipate that more motions to dismiss claims will be filed by Primus and other defendants.

After discovery has concluded, Whittington said he intends to file summary judgment motions in favor of his client. Such a motion would constitute a request that a judge find as a matter of lawprior to trialthat Primus is not liable to the plaintiff.

Still, the possibility remains that the parties will settle their differences.  

"I think it's fair to say the parties are open to continuing the efforts to achieve a resolution of these claims," Falkenstein said.

Last year, $3.8 million was distributed to victims and their families to settle claims filed against Jensen Farms, Bio Food Safety and another company, Pepper Equipment.