Prosecutors Recommend Probation in Jensen Farms Outbreak of Listeria

In the case against Eric and Ryan Jensen for their roles in an outbreak of foodborne illness linked to dozens of deaths, Assistant U.S. Attorney Jaime Pena cited a "lack of a willful, intentional or knowing state of mind."

DENVERProsecutors on Friday recommended probation for two brothers who pleaded guilty in connection with their role in an outbreak of foodborne illness that resulted in dozens of deaths.

The government recommended five years of probation for Eric and Ryan Jensen. The 2011 Listeria outbreak tied to Jensen Farms in southeast Colorado caused 147 illnesses and claimed at least 33 lives.

The culprits: contaminated cantaloupes, marking one of the largest outbreaks of listeriosis in U.S. history.

"Without a doubt, any offense that results in 33-40 deaths is a serious offense which must be given careful consideration by a sentencing court. However, the seriousness of the offense is tempered in this case by the lack of a willful, intentional or knowing state of mind," Assistant U.S. Attorney Jaime Pena wrote in court papers. "These defendants were at worst negligent or reckless in their acts and omissions."

Pena characterized the prosecution against the Jensens as an "unusual" one and pointed to mitigating circumstances in favor of leniency including the fact that the Jensens sought to recall their fruit in September 2011 when they learned it was tainted and recently met with victims and their families, waiving their constitutional rights.

"The Governments recommended sentence will deter others and encourage strict compliance with the food safety statutes," the prosecutor wrote in his sentencing recommendation. "The Government has already seen a significant difference in which food safety is viewed as a result of this prosecution. A recognition that shoddy compliance with food safety standards and statutes potentially exposes those in the distribution chain to criminal liability has been taken seriously by the food industry in light of this prosecution."

The elderly and individuals with compromised immune systems were particularly vulnerable to the outbreak of foodborne illness. One of the victims, Mike Hauser, a 68-year-old retired podiatrist from Monument, Colo., was recovering from cancer when he fell ill. He died in 2012.

In an Oct. 19, 2011 report, the U.S. Food and Drug Administration (FDA) cited a number of potential causes for the spate of foodborne illnesses. According to prosecutors, Jensen Farms could have mitigated the risk of contamination had they washed the fruit with chlorine. A guidance document from FDA had recommended using such an anti-microbial solution.

The Jensens "had the power and authority to maintain the packing equipment at Jensen Farms in such a way that the cantaloupes produced, packed and shipped from Jensen Farms would be washed with sufficient anti-bacterial solutions so that the fruit was not adulterated in the process," prosecutors alleged in court documents.

In October, the Jensens both pleaded guilty to six counts of adulteration of a food and aiding and abetting, putting each defendant at risk of facing up to six years in prison and $1.5 million in fines. Food lawyers said the brothers had few defenses in the case because prosecutors didn't have to prove they intended to violate the law.

Facing a groundswell of lawsuits, Jensen Farms filed for bankruptcy in 2012. Jensen Farms, its former auditor Bio Food Safety and Pepper Equipment agreed to pay $3.8 million to 61 claimants, according to a bankruptcy lawyer who represented Jensen Farms. Under a plea agreement with the government, the Jensens also have agreed to pay court-ordered restitution to the victims and others "proximately harmed" by the outbreak.

In an interview last November with Food Product Design, food-safety lawyer Bill Marler, who has represented dozens of Jensen Farms victims and their families in civil litigation that remains pending, said his clients had a wide range of feelings on an appropriate sentence for the brothers.  

It "runs the gamet from 'these guys should stay in jail for their entire lives' to 'I forgive them and they'" are victims of the outbreak as well, he said.

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