The California companies named in the complaint are NewStar Fresh Foods in Salinas, Boskovich Farms in Oxnard and Apio Fresh in Guadalupe. Also named was Castellini Co. in Wilder, KY.
“We have filed suit against those growers and suppliers who had the opportunity to prevent this outbreak before it reached the Chi-Chi’s restaurant,” said William Marler, a principal of Marler Clark, who filed the suit in Federal District Court in Pittsburgh on Dec. 1 on behalf of Richard and Linda Miller.
The Millers became ill about two weeks after eating lunch Oct. 12 at a Chi-Chi’s restaurant in Beaver County, PA. Mr. Miller subsequently suffered liver failure attributed to hepatitis A and underwent a liver transplant. More than 600 other Chi-Chi’s patrons also contracted the disease, and three cases were fatal.
An Associated Press story carried by the Fresno [CA] Bee on Tuesday, Dec. 2, quoted Mr. Marler as stating, “Last week, public health authorities determined that a shipment of contaminated green onions to a Chi-Chi’s restaurant from an outside supplier was the source of this outbreak. For that reason, we have decided to dismiss the lawsuits [filed earlier] against Chi-Chi’s and instead have filed a lawsuit against suppliers.”
Chi-Chi’s, a chain of about 100 restaurants, was already under Chapter 11 bankruptcy before the illnesses occurred. In a Nov. 21 statement, FDA reported that the Centers for Disease Control & Prevention had announced on that same date “that raw or lightly cooked green onions were associated with the hepatitis A illnesses in Pennsylvania.” The FDA believes there is a possible connection between the Pennsylvania outbreaks and earlier outbreaks of hepatitis A illnesses in Georgia and Tennessee in September.
The FDA issued an import alert and ordered inspectors at the border to detain any green onions from the “small number of implicated firms in Mexico” that traceback procedures indicate may have shipped the products associated with the outbreaks. Simultaneously, the Mexican government halted export of onions from the implicated firms.
The FDA statement did not identify any U.S. companies that may have handled the onions.
Mr. Marler told The Produce News Dec. 3 that names of the suppliers in the lawsuit were given to him by Chi-Chi’s. Asked whether there may have been other intermediate handlers of the onions, such as repackers or foodservice distributors, between the four companies named and Chi-Chi’s, William Marler said, “It’s a little unclear, specifically with respect to this particular restaurant, from the information I got. My guess is that there is also a distribution point somewhere in Pennsylvania, but we don’t have that information yet clear enough that I felt comfortable filing suit against that entity as well.”
As to whether any repacking may have been done by an intermediate handler, Mr. Marler said, “I don’t have the answer to that.”
He added, “I would assume that some of the companies [named in the lawsuit] did not repackage; … they were just a pass-through. However, that doesn’t diminish their liability for the illnesses. Pennsylvania, like California and other states, has chain distribution strict liability, so it doesn’t matter one bit whether or not they moved the box from one side of the warehouse, stuck it in a truck and moved it out.”
As the investigation proceeds in the lawsuit, “the answers will become clearer,” he said. “I don’t have answers as to whether or not Castellini or Apio or whomever” handled product as “just a clear pass-through. But for our purposes, it really doesn’t matter.”
“I don’t know of any reason why [these law firms] have unjustly named us in this lawsuit,” said Bob Whitaker, vice president for operations at NewStar Fresh Foods.” From the start of this incident, unfortunate as it is, we have been cooperating fully with the FDA. They visited us on November 18. They asked us for some traceback information which we provided for them. We worked closely with them to make sure we got them the information they wanted. As a result of giving them that information, they have not implicated NewStar with the outbreak of hepatitis in Pittsburgh.”
Of the four Mexican growers comprising eight different entities that the FDA did identify, Mr. Whitaker said, “We have no affiliation with those growers whatsoever. We feel like our name getting put in the press as a result of this lawsuit is really unjust.”
NewStar makes “every effort to make sure that our products are the best quality and the safest that they possibly can be,” he continued. “Since 1998, when the FDA first came out with guidelines for good agricultural practices, we have employed a good agricultural practices program here. And the standards we use in Mexico are the exact same standards that we use with our growers here in the United States.
“We have put a lot of effort in both our U.S. and Mexican production operations to make sure that those standards are understood and adhered to by our employees,” he continued. “We have audits done on a seasonal basis on all of our growing fields and our packing facilities. We feel good about what we have done in terms of food safety. We manage that program very carefully.”
George Boskovich, chief executive officer of Boskovich Farms Inc., said in a written statement to customers dated Dec. 2, “Boskovich Farms has not yet seen a lawsuit, as reported by media sources, and thus we cannot address the specific issues in the lawsuit. … FDA is still conducting its investigations, and there has been no information from any governmental authority that implicates Boskovich Farms in the outbreaks. We take our commitment to food safety seriously, with programs in place from the fields to our packing and processing plants.
“All of our Mexican green onions at this time are grown by Bustamante Y Parra Associatos in the San Luis Rio Colorado, Sonora, region,” the Boskovich statement continued. “Bustamante Y Parra Associatos has grown exclusively for Boskovich Farms for the past 25 years and is not connected with the hepatitis A outbreaks in any way. This grower adheres to the same good agricultural practices that Boskovich Farms implements in growing our own crops, including independent third-party audits.”
The Castellini Co. issued a prepared statement Dec. 2 stating that it “has not yet received a copy of the complaint and has not been implicated by the FDA or any other government authority in connection with the outbreak.”
Green onions received by Chi-Chi’s “may have been shipped through a Castellini Company warehouse in Wilder [KY],” but the onions would have been received “packaged in master cartons, ready for shipment” to a customer in Pennsylvania, “which may have supplied the green onions to the restaurant in question. The cartons in question remained intact in the Castellini Company warehouse until shipment to the Castellini Company customer. Neither Castellini Company nor any of its affiliates repacked or processed [the onions].”
Castellini, “which is one of the largest distributors of fresh fruit and vegetables in the United States, regularly receives the highest rating for its food-safety and hygiene processes and practices at the Wilder [KY] facility from industry-rating services,” according to the statement. Apio Fresh declined to comment when contacted Dec. 2 by The Produce News.
However, Apio had issued a statement on Nov. 22, prior to the lawsuit, in which it said that it had asked its customers “to withdraw from the marketplace all green onions sold by the company in light of concerns” about the outbreak.
The statement quoted Apio Chief Executive Officer John Jackson as saying, “Consumer safety is our top concern. We believe this is a prudent response, given the severity of the situation. … We remain confident Apio Fresh products are not involved in this outbreak.”
The Apio statement noted that Apio had learned that FDA “had identified one Apio Fresh supplier of green onions in Mexico as one of several suppliers the FDA is investigating as potentially connected with the hepatitis A outbreak. At this point, there has not been a specific connection drawn between green onions from any of these suppliers or Apio Fresh and the outbreak.”
However, “as the safety and health of consumers is paramount, Apio Fresh is taking immediate action to withdraw from the marketplace all of its green onions, both grown in Mexico and the U.S. The company is doing so voluntarily and has not been requested to do so by the FDA or any other authority.”
Western Growers Association Executive Vice President Matt McInerney said of the hepatitis issue: “The investigation is still ongoing.” The FDA and other agencies are “still trying to accumulate information and data and render an assessment on what the specific cause of the outbreak is.” As a precaution, FDA has taken appropriate action based on what seems most likely. But there are still “many unanswered questions. And if history tells us anything on food-safety issues, it is that one should always wait for the completed, thorough investigation and not make a rush to judgment.”