Marler Clark filed first wrongful death Listeria Lawsuit in New York against Boar’s Head

Copy of Complaint

1. As of September 25, a total of 59 people infected with the outbreak strain of Listeria have been reported from 19 states – Including: Arizona 1, Florida 3, Georgia 2, Illinois 1, Indiana 1, Louisiana 1, Maryland 8, Massachusetts 3, Minnesota 1, Missouri 3, New Jersey 6, New Mexico 1, New York 17, North Carolina 1, Pennsylvania 2, South Carolina 2, Tennessee 1, Virginia 4, and Wisconsin 1.
2. Sick people’s blood and spinal fluid samples were collected from May 29, 2024, to August 28, 2024.  Of 57 people with information available, all 59 have been hospitalized. One person got sick during their pregnancy and remained pregnant after recovering. So far, ten deaths have been reported, including one in Illinois, one in New Jersey, one in Virginia, one in Florida, one in Tennessee, one in New Mexico, two in New York, and two in South Carolina.
3. Epidemiologic, laboratory, and traceback data show that Defendant’s meats, including Defendant’s Boar’s Head brand liverwurst, are contaminated with Listeria and are making people sick.
4. Defendant’s products sold at delis, especially those sliced or prepared at the delis, can be contaminated with Listeria. Listeria spreads easily among deli equipment, surfaces, hands, and food. Refrigeration does not kill Listeria, but reheating to a high enough temperature before eating will kill any germs that may be on these meats.
5. Defendant published a recall of its deli meat products, including liverwurst and other deli meats, on July 26, 2024. The United States Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced that Defendant expanded its July 26, 2024, recall of deli meat products that may be adulterated with Listeria on July 30, 2024.^[1] Defendant recalled approximately 7 million additional pounds of ready-to-eat meat and poultry products. Whole genome sequencing results show that a sample of Defendant’s liverwurst collected by the Maryland Department of Health tested positive for the outbreak strain of Listeria. Defendants ham has also tested positive for Listeria.
6. This recall expansion included 71 products produced between May 10, 2024, and July 29, 2024, under Defendant’s Boar’s Head and Old Country brand names. These items include meat intended for slicing at retail delis as well as some packaged meat and poultry products sold at retail locations. These products have “sell by” dates ranging from 29-JUL-2024 through 17-OCT-24.
7. The products subject to recall were distributed to retail locations nationwide and some were exported to the Cayman Islands, Dominican Republic, Mexico, and Panama. The products shipped to retailers bear establishment number “EST. 12612” or “P-12612” inside the USDA mark of inspection on the product labels.
8. The problem was discovered when FSIS was notified that a liverwurst sample collected by the Maryland Department of Health tested positive for Listeria. The Maryland Department of Health, in collaboration with the Baltimore City Health Department, collected an unopened liverwurst product from a retail store for testing as part of an outbreak investigation of Listeria infections. Further testing determined the product sample tested positive for the outbreak strain. 
9. Beyond issues like paperwork lapses and leftover meat on equipment, the inspection records show inspectors faulted Defendant several times for mold and mildew building up in many locations throughout the company’s facility in Jarratt, Virginia. In July of this year, federal inspectors found what looked to be mold and mildew around the hand washing sinks for the workers tasked with handling meats that are supposed to be ready to eat. Mold was also found building up outside of steel vats used by the plant, as well as in holding coolers between the site’s smokehouses. “A black mold like substance was seen throughout the room at the wall/concrete junction. As well as some caulking around brick/metal,” an inspector wrote in January, noting that some spots were “as large as a quarter.”
10. Other locations were found to have several issues with leaking and pooling water, including a puddle found with “a green algal growth” and condensation that was found to be “dripping over product being held.”
11. After inspectors flagged one of the leaks to the company, workers tried to mop up the leaks. “The employee wiped a third time, and the leaks returned within 10 seconds,” inspectors wrote after one condensation issue was raised on July 27, 2024, near fans that looked to be blowing the liquid onto uncovered deli meats.
12. In February, an inspector found “ample amounts of blood in puddles on the floor” and a “rancid smell” throughout a cooler used at the plant. Several records also flag sightings of insects in and around deli meats at the plant, including one instance that prompted the agency to tag more than 980 pounds of ham in a smokehouse hallway to be “retained” for an investigation.
13. In June, another report flagged concerns over flies going in and out of “vats of pickle” left by Defendant in a room. “Small flying gnat like insects were observed crawling on the walls and flying around the room. The rooms walls had heavy meat buildup,” the report notes. Other parts of the facility were also found to have bugs, including what looked to be “ants traveling down the wall,” as well as a beetle and a cockroach.

^[1] https://www.fsis.usda.gov/recalls-alerts/boars-head-provisions-co–recalls-ready-eat-liverwurst-and-other-deli-meat-products

Republished with permission from Bill Marler and Marler Clark. Copyright (c) Marler Clark LLP, PS. All rights reserved.