Jensen Farms Brothers Meet With Victims in Listeria Outbreak
by Josh Long - November 20, 2013
Eric and Ryan Jensen, who await sentencing on Jan. 28, 2014, for their roles in the deadly outbreak, were present during the meeting with the U.S. Attorney's Office in Denver, victims and their families.
"The meeting was an opportunity for victims and their families to confront the defendants, either making statements about the [harm] caused by the defendants or ask the defendants specific questions," Jeffrey Dorschner, a spokesman with the U.S. Attorney's Office for the District of Colorado, said in an emailed statement Tuesday. "It was well attended, professional and productive. The next step will be a more public version of this during the defendants' sentencing."
Assistant U.S. Attorney Jaime Pena conceived the idea for the meeting with the agreement of the defense attorneys, Dorschner said.
It was the third time Pena "held meetings with victims, but the first time that victims and the defendants were in the same meeting," he explained.
Bill Marler, a Seattle-based food-safety attorney who represents victims and their families in civil lawsuits, said only a handful of his clients opted to show up even though he gave everyone the opportunity to do so. According to 7NEWS in Denver, about a dozen people attended the meeting.
"Some people just didn't want to go," Marler told Food Product Design.
Marler explained the U.S. Attorney's Office gave a presentation on the law and why the Jensens were charged with crimes, then the brothers said they were sorry for the outbreak. Afterward, victims had an opportunity to ask the Jensens questions.
"People got to ask them any question they wanted. They waived their 5th Amendment rights," he said. "I think all in all for the people who went there it was hard. A lot of tears. But I think in some respects it was good."
In October, 37-year-old Eric and his 33-year-old brother Ryan both pleaded guilty to six counts of adulteration of a food and aiding and abetting.
The Jensens could each face up to six years in prison and $1.5 million in fines. It's unclear whether their participation in Tuesday's meeting will impact Pena's sentencing recommendation or the actual sentence imposed by U.S. Magistrate Judge Michael Hegarty. Victims also are expected to speak during the Jan. 28 sentencing hearing.
Prosecutors haven't yet recommended a sentence as far as Dorschner is aware. Under advisory guidelines, the Jensens could face between four months and 27 months behind bars. But the judge also could opt to impose probation instead of prison.
Marler, who has represented dozens of victims and their families in civil litigation, said he is not submitting a recommendation for a criminal sentence. He said his clients have a wide range of feelings on the matter.
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.
Elaine Stevens, whose 86-year-old husband Herb was a victim of the outbreak and passed away in July, wasn't overly judgmental.
"I don't think that they [Jensens] meant to do anything deliberately wrong, but they had followed some procedures that just weren't quite right," she told 7NEWS.
Added Jennifer Exley, Herb's daughter in an interview with 7NEWS: "I personally don't think the Jensens are bad people. I think they were led astray. In their heart, I think they know they have done something wrong."
Last year, Jensen Farms filed for bankruptcy and nearly $4 million in insurance proceeds was distributed to victims and their families to settle litigation against the farm and two other companies involved in the outbreak, including Jensen Farms' former auditor Bio Food Safety.
Dozens of other lawsuits remain pending against businesses in the distribution chain, including Wal-Mart and Kroger. Kroger didn't respond Tuesday to a request for comment.
Randy Hargrove, a Wal-Mart spokesman, said the company was unable to comment on ongoing litigation.
"At Walmart, we are committed to our customers' safety and we take food safety concerns like this very seriously," he said in an emailed statement. "As soon as we were made aware of a Listeria outbreak associated with cantaloupes from the Rocky Ford growing area, we immediately worked with our suppliers and began removing cantaloupes sourced from that region."
Marler said at least 64 lawsuits have been filed in 15 states. About two dozen complaints are pending in Colorado where a request is pending to consolidate all pre-trial matters before an Arapahoe County judge, he said.
In Colorado, claims have been made against the defendants for negligence and strict liability, he said.
"There is also the ability to get Wal-Mart and Kroger for strict liability because Jensen Farms has gone bankrupt and courts want to give somebody a remedy and so they allow you to [assert] strict liability against the principal reseller," Marler said. "That whole idea of who is the principal reseller in this situation hasn't been really well defined in the Colorado courts."
Jensen Farms also has filed a lawsuit against its former auditor, Primus Group, Inc. According to the lawsuit, the auditor that Primus retained—James Dilorio of Bio Food Safety—made crucial omissions, including failing to warn Jensen Farms that a new processing system used to wash the cantaloupes created a food-safety hazard.
"The 2011 auditor, Mr. Dilorio, failed to observe, or properly downscore or consider, multiple conditions or practices that were in violation of Primus's own audit standards applicable to cantaloupe packing houses, industry standards, and relevant FDA industry guidance," Forrest Lewis, a Denver attorney representing Jensen Farms, wrote in the lawsuit.
Lewis, who also represents Eric Jensen in the criminal case, claims the Jensens never would have sold the cantaloupes if the audit failed and the business hadn't received "Primus Certified".
Jeffrey Whittington, an attorney representing Primus, denied that the company is liable for the outbreak.
"Primus is a third-party auditor that has no statutory, regulatory, or contractual ability whatsoever to stop or in any way control the production, distribution, or retail sale of the cantaloupe that allegedly caused the outbreak," he said in an emailed statement to Food Product Design. "Each of those aspects (production, distribution and sale) were handled by parties other than Primus."
Whittington added that an audit of Jensen Farms found several findings of non-compliance that were conveyed to Jensen Farms. Finally, he said a federal court in Wyoming already has dismissed a lawsuit against Primus, finding the company did not owe a duty to the plaintiff or cause injury.
"Primus has filed motions to dismiss in dozens of cases around the country and remains optimistic that the ruling by the federal judge in Wyoming will be followed by judges in other jurisdictions as well," he said.
For more information on the outbreak, see this Slide Show.