On Oct. 15, Attorney Forrest W. Lewis filed a complaint with the District Court in Prowers County, CO, requesting a six-person jury trial in behalf of his client, Jensen Farms of Holly, CO. Primus Group Inc., a California corporation doing business as PrimusLabs, was named as the defendant.

Legal proceedings against Eric and Ryan Jensen, the company's owners, ramped up Sept. 26 when they were taken into custody and formally charged with six misdemeanor charges of introducing adulterated food into interstate commerce. The charges stemmed from the 2011 distribution of cantaloupes produced at the farm found to be tainted with Listeria. During the outbreak, 33 people died and another 147 people were sickened in the United States.

The Jensens formally changed their plea to federal charges to guilty in U.S. District Court on Oct. 22. They will be sentenced Jan. 28 in District Court on federal charges.

The detailed 10-page complaint filed in Prowers County provided the following information concerning the lawsuit.

Lewis wrote that "Primus represents itself as 'a global leader in food safety.' It claims to provide 'internationally recognized audits' and 'expert education and training programs.' Primus claims to 'develop customized programs based on [the customer's] unique demands and requirements'."

According to the document, Primus conducted an audit of Jensen Farms' ranchlands and packinghouse operations on or around July 25, 2011, through its agent, Bio Food Safety, which is based in Texas. Cantaloupes produced at Jensen Farms were being distributed by Frontera Produce Ltd., which had requested Primus certification.

The 2011 audit was conducted by James Dilorio, who "gave Jensen a score of 96 percent and a 'Superior' rating at the conclusion of the audit."

Although BFS had audited Jensen Farm operations in 2010, Lewis wrote that the auditor was a different individual.

"During that audit, the president of BFS expressed concerns that the hydrocooler used in processing was a 'hot spot' for contamination because of its use of recirculating chlorinated water," Lewis wrote in the complaint.

Prior to the 2011 audit, Jensen Farms installed new processing equipment to wash cantaloupes, using city water and a brush system.

"The hydrocooler was taken out of the system," Lewis stated. "The only chlorination was in the city water used to wash the cantaloupes."

He further stated that the 2011 auditor did not question removal of the hydrocooler and did not warn Jensen Farms that "the new system created a hazard or a risk of contamination. He did not discuss [Food and Drug Administration] guidelines with Jensen."

Lewis stated that Dilorio did not downscore Jensen Farms based upon conditions and practices that were "in violation of Primus's own audit standards applicable to cantaloupe packing house, industry standards and relevant FDA industry guidance."

Citing that Dilorio erroneously represented his professional expertise, Lewis said he "negligently gave Jensen false information, on which Jensen reasonably relied, in Jensen's evaluation of the safety and quality of its facilities and procedures and cantaloupes."

Jensen Farms began a voluntary recall of its cantaloupes around Sept. 14, 2011, and received a warning letter from the Food & Drug Administration dated Oct. 18, 2011. "The FDA identified potential causes of the contamination as the design of the conveyer system and the removal of the hydrocooler, conditions observed by Primus during its audit and passed as safe" Lewis wrote.

Lewis has filed five claims of relief for Jensen Farms. The claims against Primus include negligence, breach of contract, negligent hire, negligent misrepresentation, and unfair and deceptive trade practices.

Lewis noted that the case has irreparably affected the ability of Jensen Farms to conduct business.

"Jensen's relationship with its buyers and its reputation in the business were irreparably destroyed. Jensen, a fourth-generation family farm, is no longer a viable entity," he said in the complaint.

He stated that the brothers have been adversely affected by the case.

"Due to the breach by Primus of its contractual duties to Jensen, Jensen suffered loss of income and revenue, past and future; incurred significant attorney fees and court costs; and is subject to future civil judgments and possible restitution orders in the criminal matter against Eric and Ryan Jensen," he wrote.

Jensen Farms seeks a six-person jury trial to be held in Lamar, CO and is seeing the following relief:

• "That the Court award Jensen judgment against the Defendant in such sums as shall be determined to fully and fairly compensate Jensen for all damages incurred, or to be incurred, by Jensen as the direct and proximate result of the acts and omissions of the Defendant;
• "That the Court award Jensen its costs, including experts fees, and reasonable attorneys' fees incurred, and prejudgment interest at the statutory rate;
• "That the Court award Jensen its treble damages; and;
• "That the Court award Jensen such other and further relief as it deems necessary and proper in the circumstances."

Diane Crow, clerk of the court, told The Produce News on Oct. 22 the case has not yet been scheduled for a jury trial.