On Oct. 28, District Court Judge Charles M. Pratt denied two motions to dismiss filed by Primus Group Inc. The case involves multi-district litigation in Colorado stemming from cases pending against Primus relating to the distribution of tainted cantaloupe.

“These cases involve claims arising from the death and injury of numerous individuals resulting from their consumption of Listeria monocytogenes linked to cantaloupe produced by Jensen Farms in 2011,” the judge stated about the background of the case.

Addressing each of the motions, Pratt wrote in his rulings that, “Whether the facts, including those concerning the extent and purpose of the audit, will support such allegations will have to await a motion for summary judgment or trial; such disputed issues of fact cannot be resolved at this stage.”

An amended motion filed by Primus asked that 24 legal claims grouped as Case No. 20-11CV1891 be dismissed. Primus contended that the complaint failed to set forth claims for which it has a legal duty. PrimusLabs, hired by Jensen Farms to conduct a facilities audit, subcontracted the audit to the company, Bio Food Safety, which assigned James Dilorio to perform the audit. “The audit resulted in a ‘superior’ rating of 96 percent,” Pratt wrote in his ruling. “After the audit was issued, the cantaloupe were released for sale to the public.”

During September 2011 the Food & Drug Administration investigated Jensen Farms, linking Listeria-related illnesses and deaths.

“Under the common law claims the parties focus their arguments on the issue of whether Primus’ alleged negligence was misfeasance or nonfeasance,” the judge stated. "For the purposes of this order the difference is that misfeasance requires proof that the defendant engaged in conduct which created the condition which resulted in the harm, whereas nonfeasance results from the defendant’s failure to engage in conduct which would or might have discovered or prevented the harm.”

Allegations in the amended complaints supported the following:

1. “One purpose for which the audit was undertaken was the protection of the public from exposure to and consumption of harmful cantaloupe;
2. “The auditor should have reasonably recognized that the audit was necessary to protect the public from exposure and consumption of harmful cantaloupe;
3. “Failure to exercise reasonable care in conducting the audit increased the risk to the public from exposure to and consumption of harmful cantaloupe;
4. “The auditor undertook Jensen Farms’ duty to the cantaloupe consuming public to inspect the cantaloupe production facility to identify potential containment hazards; and
5. “The plaintiffs, as members of the cantaloupe consuming public, suffered illness and death because they, Jensen Farms and others reasonably relied upon the audit and auditor to uncover or detect the conditions which led to the distribution of contaminated cantaloupe.”

The judge also stated that the allegations of the complaints “sufficiently allege that the consumers of the cantaloupe produced at Jensen Farms were intended beneficiaries of the audit.”

Another motion for dismissal filed by Primus involved cross-claims brought by defendants Frontera Produce LTD and Dillon Cos. Inc. “Frontera has brought cross-claims against Primus for negligence, negligent misrepresentation, breach of contract and contribution,” Pratt wrote. “Dillon has asserted cross-claims against Primus for negligence and contribution.”

“Primus contends that due to the time difference between when the audit was conducted and the date(s) when the contaminated cantaloupe were processed and/or the government investigation was conducted, the allegations are insufficient to support a claim that the conditions found by the governmental investigations existed at the time of the audit,” the ruling stated.

Pratt wrote that Primus also argued that it was not hired by Jensen Farms “to conduct an audit which would test the cantaloupe or the environment within the packinghouse with regard to the quality and safety of the cantaloupes.”

Frontera and Dillon both alleged that Primus failed to accurately audit the Jensen packinghouse in compliance with its own as well as industry standards, and provided a “superior” rating rather than failing the packinghouse in a manner consistent with these standards.

Primus argued that the cross claims failed to set forth claims for which Primus owned a legal duty. “Thus the question is: did Primus owe a duty to Frontera or Dillon with regard to the audit?” the judge said regarding the alleged breach of duty.

The issue of whether Primus’ alleged conduct was misfeasance or nonfeasance was raised.

Looking at the issue of control over the cantaloupe, Pratt wrote, “Primus had control over when the cantaloupe would be released for sale to the public. Primus knew or reasonably should have known that until it completed the Audit the cantaloupe would not be released for sale to the public.”

He also said, “The counter-claim allegations sufficiently allege that based upon the surrounding circumstances (including requiring a properly completed Audit before the cantaloupe were released for sale to the public) the marketers and distributors of the cantaloupe produced by Jenson Farms were intended beneficiaries of the audit. The audit was alleged to have been conducted for the protection of the public from physical dangers associated with consumption of tainted produce.”