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Lawyer, Industry Group Blast Company That Sold Tainted Peanut Products

David Shaffer, Minneapolis Star Tribune

January 29, 2009

A lawyer who has been suing food companies for 15 years says he's never seen anything like it.

Even the peanut industry's trade group is shocked.

Those are some of the first reactions to U.S. Food and Drug Administration findings Tuesday that the Georgia peanut butter plant linked to a nationwide salmonella outbreak shipped products to customers even though initial tests found them contaminated with the bacteria.

"The findings of the FDA report can only be seen as a clear and unconscionable action of one irresponsible manufacturer, which stands alone in an industry that strives to follow the most stringent food safety standards," said Patrick Archer, president of the American Peanut Council in a statement. He went on to say "this apparent failure to follow food safety regulations must be condemned in the strongest possible terms."

More than 500 people in 43 states have gotten sick in the outbreak -- 36 of them in Minnesota. Salmonella infections give people diarrhea and other abdominal symptoms, and sometimes are fatal. Eight deaths are linked to the outbreak, including three nursing home residents in Minnesota, the most deaths of any state.

The third Minnesotan whose death was linked to the outbreak was identified today.

Doris Flatgard, 87, formerly of the Bergen, Minn., area, died Jan 4., said Minneapolis attorney Fred Pritzker who represents the family. She resided in the Good Samaritan Society-Oakwood nursing home in Brainerd, Minn where she was served regularly ate peanut butter and toast for breakfast, he said.

All three of the Minnesota deaths were residents of Good Samaritan facilities in Brainerd, though each lived in a different building. The nursing homes were among the first to return the recalled peanut butter to the distributor after the state Health Department linked the salmonella outbreak to products made in the Georgia plant and sold through a distributor to many institutions.

Pritzker said the family intends to sue the manufacturer. Flatgard's death "underscores the vulnerability of the people who have been victimized by this," he said. "It underscores the need for a revamping of the food safety laws."

Bill Marler, a Seattle attorney who has been suing food makers for years on behalf of sick people and has looked at countless inspection reports, said he's never seen one on which a company is accused of shipping out products that tested positive.

"It's insane," he said. "You have to ask, what are these people thinking when the product is going into institutional settings with kids and older people? It's just unconscionable."

He said he already has revised his lawsuit against the Peanut Corp. of America -- on behalf of a Vermont parents who child was sickened -- to include punitive damages.

The Minnesota Health Department in late December and early January traced the souce of illlnesses to peanut butter from the plant and sold by an Ohio distributor to long-term care facilities. FDA investigators began checking the Blakely plant on the day Minnesota issued the first alert about the source.

The inspectors found significant deviations from good manufacturing practice that "had an adverse affect on the quality of that product, making it adulterated, said Michael Rogers, director of regional investigations for the FDA.

He said a team of federal and state inspectors "identified approximately 12 instances in 2007 and 2008 where the firm as part of their own internal testing program identified some type of salmonella and released a product after it was retested in some cases by a different laboratory."

The FDA did not immediately release the inspector's written report, but Marler obtained a copy on his own, and posted it on his website. The report offers nine examples of unsafe practices including:

• Storing raw peanuts, which potentially contain pathogens not killed by roasting, next to processed ones.

• Using a conveyor belt made of felt, which "cannot be adequately cleaned or sanitized."

• Keeping inadequate record of the temperatures used in roasting to assure they are high enough to kill organisms on the nuts.

• Allowed water to leak into the plant from skylights and air conditioner intakes. This finding could be significant because leaking water is thought to be the source of the only other peanut butter salmonella outbreak. The problem occurred at another Georgia peanut butter plant in 2006 and led to the first-ever U.S. recall of peanut butter produts.

In this outbreak, nearly 400 products containing peanut butter or peanut paste from the plant have been recalled, and federal officials urged consumers to check a still-expanding list at

Peanut Corp. of America did not comment directly on the FDA findings, but said in a statement that it has "cooperated fully with FDA from day one during the course of this investigation. We have shared with them every record that they have asked for that is in our possession and we will continue to do so."

The FDA report on the Blakely plant is far harsher than the eight inspetion reports written by the Georgia Department of Agriculture since 2005. The agriculture department had inspected it eight times and found 32 violations that were corrected by the company, according to reports released Monday. Many of the violations related to sanitation, such as the discovery of dirt, rust, mildew and spillage buildup on surfaces.

Oscar Garrison, an assistant commissioner in charge of the Georgia agency's consumer protection division, said the company had many violations "but definitely nothing that would lead to a major red flag to alert us on a potential outbreak like we have facing us now." He said Tuesday's critical FDA findings reflect what investigators have found in the plant since Jan. 9.

Yet Georgia officials admitted they had never seen any results of product testing conducted by the company. Garrison said current laws don't allow inspectors access to company lab results.

Mike Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, said the FDA findings reveal something was wrong at the plant.

"The million-dollar question is how did the Georgia Department of Agriculture let this happen a second time?" he said, referring to the 2006 salmonella outbreak linked to another Georgia processing plant. "Either the inspection system is deficient to the point of not giving us confidence in the food system, or these were incredibly poor inspections. ... Either way, we have a problem."

Fred Pritzker, a Minneapolis attorney who filed a negligence lawsuit against the company on behalf of one victim's family, said the FDA findings suggest problems at such plants can't be fixed piecemeal. "If you have got a problem and the testing continues to show the problem continues, then you need to shut down the plant and do a wholesale cleaning," he said.

The recalls have been expanding because the plant sold peanut butter and paste in bulk to at least 70 firms. Some of it ended up in institutional kitchens, including Minnesota nursing homes. Even more went to firms that make an array of packaged products ranging from crackers to ice cream.

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