Listeria outbreak: Victims file lawsuits, but will they receive damages?

It wasn’t long after officials linked a listeria outbreak with cantaloupe from a Colorado farm that wrongful-death and personal-injury lawsuits began to be filed.

The outbreak, which is the deadliest food crisis in more than a decade, has killed at least 15 people and sickened 84 others in 19 states, according to the Centers for Disease Control and Prevention in Atlanta. Earlier this month, after the listeria link was made, Jensen Farms in Holly, Colo., issued a voluntary recall of its Rocky Ford brand of cantaloupes.

Now, victims and families of victims in Colorado, Oklahoma, and Texas have filed at least five lawsuits against Jensen Farms. One lawsuit is also against Wal-Mart for allegedly being among the grocery stores selling the cantaloupe in question.

However, it’s hardly a given that the plaintiffs – who have already incurred considerable expenses because of their ordeal – will receive the compensation that lawyers tell them they deserve. This could be especially true because Jensen Farms is a local grower, a third-generation family farm, with limited capital.

“Jensen Farms is not a major corporation that has significant financial assets,” says Fred Pritzker, a Minneapolis-based attorney specializing in food-poisoning cases who is representing two victims in Illinois and New York. “When you factor in the severity of the illness and the number of deaths and illnesses that will be attributed to this in the days and weeks to come, you just know they don’t have nearly enough assets to fully compensate them.”

Mr. Pritzker says that by the time he gets to trial in most food-poisoning cases, the discussion focuses less on proving the source of the outbreak and more about what would be a reasonable amount of money to award the victim.

The trials related to the listeria outbreak will probably follow that pattern, he says, since Jensen Farms’ recall of an estimated 4.5 million cantaloupes was based on findings confirmed by the Food and Drug Administration.

While Jensen Farms and Wal-Mart have been named in lawsuits so far, it’s altogether possible that other entities will become the target of subsequent lawsuits, as state and federal officials trace the paths of contamination. The chain of distribution for the cantaloupes includes other grocery stores as well as processing facilities and shippers.

In a company statement issued on Sept. 16, owners Eric and Ryan Jensen said, “We hope that the investigation into the entire supply chain from farm to retail identifies the source of the contamination so that appropriate steps can be taken to prevent such an occurrence from ever happening again.”

Especially in cases involving small businesses, it’s common for plaintiffs to pursue all available avenues. “If other parties involved bear some of the responsibility, we look to them to supplement the pool of money that is available to the victims,” Pritzker says.

Victims sue for a host of reasons, which lawyers must evaluate as they consider the amount of damages to request.

Alan Maxwell, an Atlanta attorney who often defends food companies and producers held liable for outbreaks, says his clients are often asked to pick up the tab for personal-injury claims. That involves victims’ pain and suffering, emotional distress, medical bills, wage losses, and loss of earning capacity.

“After the underlying investigation has been done by state and federal health departments, it’s very difficult to overcome public-health findings that prove your client is the origin of an adulterated food product,” Mr. Maxwell says.

He says his clients have had to pay damages ranging from a few thousand dollars to eight-figure settlements. The larger sums are often awarded to the most severely affected individuals, he says.

However, the families who sue in wrongful-death claims often receive less than that because the length of suffering is much shorter.

Victims of foodborne illnesses aren’t the only ones who may experience big financial losses. The entire industry for a particular product can be affected – even when the problem is isolated to, say, one producer.

"[In this outbreak], everybody said it was cantaloupe, so the cantaloupe industry gets hit with a broad brush ... even though it’s only Rocky Ford cantaloupe," says William Marler, a Seattle-based attorney who is also representing several victims of the outbreak.

The 2006 E. coli outbreak linked to bagged spinach similarly decimated the leafy green industry, he notes.

The industry is still reeling from the $100 million lost in leafy-green sales after the E. coli outbreak, said leafy-greens executive Scott Horsfall at the World Ag Expo this year in Tulare, Calif.

“We have become a country that relies on the mass production of food, and the consequence of these outbreaks is certainly broad and impacts others who in a legal context may not be responsible for that particular instance or outbreak,” Maxwell says.

For Pritzker, finding a balance represents the crux of food-safety litigation.

“It’s not fair that the rest of the industry ends up paying,” he says, “but it’s a lot less fair for somebody who’s injured by that industry.”