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2 Kan. listeria victims sue over tainted fruit

Published on -9/3/2013, 3:02 PM

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WICHITA, Kan. (AP) -- Two Sedgwick County families are suing companies with connections to a Colorado farm that grew cantaloupe that was linked to one of the most lethal outbreaks of a food-borne illness in the U.S. in decades.

The lawsuits filed last month in Sedgwick County District Court seek damages from those companies on behalf of two victims, one of whom died and the other who still suffers from listeriosis, The Wichita Eagle (http://is.gd/CI3cS0) reported.

The families of David Weimer, 59, of Wichita, who died of listeria in September 2011, and Charyl Rutherford of Haysville, who still suffers from the disease, are seeking payment in excess of $50,000 and $75,000, respectively, from the company that sold the cantaloupe for the farm, the principal company in charge of auditing the farm for safety, and the stores that sold the tainted fruit to the victims.

The Centers for Disease Control and Prevention determined the listeria outbreak -- which resulted in 147 illnesses and 33 deaths in 28 states -- lasted from August to October 2011 and was the deadliest outbreak of a food-borne disease in the U.S. since 1924.

In Kansas, 11 people became sick as a result of eating tainted cantaloupe grown at Jensen Farms of Holly, Colo., and three people died, the CDC said.

Seattle-based food-safety lawyer Bill Marler, who represents the Weimer family, said his lawsuit was filed because multiple efforts at mediation with all parties involved had failed. The bankruptcy last year of Jensen Farms also delayed the process, he said, and a two-year statute of limitations on the case is close to expiring.

"These are cases that should have been resolved," said Marler, whose firm, Marler Clark, has filed or amended lawsuits in July and August on behalf of 44 families in 12 states who were affected by the outbreak. "There's no question about the cause of their illness and no question about the cause of their deaths."

Both lawsuits claim negligence against Frontera Produce of Texas, which sold the produce for Jensen Farms, and PrimusLabs of California, which contracted with another company that audied the farm and gave it a high safety rating in July 2011 -- only a month before victims became getting sick.

The lawsuits claim the U.S. Food and Drug Administration later found multiple safety problems at the farm. Claims against Jensen Farms were settled during bankruptcy proceedings, Marler said.

Dillons and Homeland stores are charged in the respective suits with negligence for selling the contaminated fruit to the victims.

Both families declined to comment about their lawsuits. An attorney for Frontera said that company was a marketing agent that arranged for the contracts of sales to stores, but didn't grow, harvest or even touch the fruit.

The newspaper couldn't reach representatives of PrimusLabs and the Dillons and Homeland stores for comment.

Listeriosis primarily affects older adults, persons with weakened immune systems, pregnant women, and newborns, according to the CDC.

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