To date, three judicial districts have issued orders of dismissal of lawsuits filed against Santa Maria, CA-based PrimusLabs stemming from the 2011 distribution of tainted cantaloupes produced at Jensen Farms in Holly, CO. Motions to dismiss have been filed in a range of 10 to 15 cases.

During the 2011 Listeria outbreak, 33 people died and another 147 people were sickened in the United States. Eric and Ryan Jensen pleaded guilty to six misdemeanor charges of introducing adulterated food into interstate commerce in U.S. District Court on Oct. 22, 2013, and will be sentenced in federal court at the end of January.

A separate lawsuit originally filed by the Jensens against PrimusLabs was formally turned over to 26 victims in the case, who are represented by Seattle-based Attorney Bill Marler. Primus has also filed a motion to dismiss this case, which has been transferred to federal court.

Jeffrey Whittington, attorney with the law firm of Kaufman Borgeest & Ryan LLP, based in Calabasas, CA, is representing Primus in these cases.

"The lawsuits are essentially identical except for some personal details," he told The Produce News Jan. 14. In the legal actions outside Colorado, Whittington said the motions to dismiss filed on behalf of Primus are "largely similar except for taking state law into consideration."

Current dismissals were issued in California, Wyoming and Oklahoma, the latter two jurisdictions being federal court.

"The decisions have been 14 to 15 pages long," Whittington stated.

At the outset, Whittington said courts will examine cases in a light most favorable to plaintiffs when issues such as breach of contract and negligence arise.

Whittington argued for dismissal based upon three considerations: Did Primus owe a duty to end consumers? If Primus did owe such a duty, was there a breach of contract with end consumers? And finally, assuming there was a duty and breech, did Primus cause the situation to occur?

"As an auditor, Primus has no control over sale or distribution of product," Whittington said.

He is not surprised by the first three decisions, saying, "I thought those decisions were consistent with what we thought the law to be. The undercurrent of the law is very consistent."

He was asked whether courts have the discretion to take prior rulings into account prior to affirming or denying motions to dismiss.

"The judge in Oklahoma was provided with the decision of the federal judge in Wyoming," Whittington said. "He will still have to apply state law."

Information about the Wyoming decision, while not binding upon the Oklahoma judge, was "considered to be persuasive," he said.

The next round of hearings for motions to dismiss have been scheduled in Arkansas on Jan. 27, Oklahoma on Feb. 10 and Kansas on Feb. 14.

There are two separate sets of litigation occurring in Colorado. In addition to the consolidated lawsuit, separate lawsuits are also moving through the judicial system.

Whittington expects the consolidated lawsuit will be taken off the federal calendar as an amended complaint has been filed. That complaint is currently being reviewed, and Whittington expects the complaint will be placed back on the federal docket after the review is completed.

Whittington said the Jensen case brings the role of auditors into focus. That role, he said, "is to observe and report in conjunction with an auditee. It is important to understand a third-party auditor has no enforcement or reporting authority [because it is a private audit]."

Steven Weiner, an attorney with Kaufman Borgeest & Ryan LLP, based in Westchester, NY, said it would have been up to Jensen Farms to take the results of the audit and determine its next course of action.

"There has been a lot of focus on the audit score," he commented.

Jensen Farms received a score of 96, and Weiner said that score was indicative that Jensen Farms should have addressed minor, major and total areas of noncompliance.

"The focus is on substance of what is reported in the audit, rather than the score," Weiner stated.