What Listeria Litigation against Boar’s Head will tell us all

As of November 19, a total of 61 people infected with the outbreak strain  of Listeria were reported from 19 states: Arizona 1, Florida 3, Georgia 2, Illinois 1, Indiana 1, Louisiana 1, Massachusetts 3, Maryland 8, Minnesota 1, Missouri 3, North Carolina 1, New Jersey 6, New Mexico 1, New York 19, Pennsylvania 2, South Carolina 2, Tennessee 1, Virginia 4 and Wisconsin 1. 

Sick people’s samples were collected from May 29, 2024, to September 13, 2024. Of 61 people with information available, 60 were hospitalized. One person got sick during their pregnancy and remained pregnant after recovering. 

Ten deaths were reported, including one in Illinois, one in New Jersey, two in New  York, one in Virginia, one in Florida, one in Tennessee, one in New Mexico, and two in South Carolina. 

Epidemiologic, laboratory, and traceback data show that Defendant’s meats which are sliced at delis, including Boar’s Head brand liverwurst, are contaminated with Listeria and are making people sick.

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.

Defendant published a recall of its deli meat products, including liverwurst 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 monocytogenes on July 30, 2024. Defendant is recalling 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 monocytogenes.

This recall expansion includes 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. 

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.

The problem was discovered when FSIS was notified that a liverwurst sample  collected by the Maryland Department of Health tested positive for L. monocytogenes. 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 L. monocytogenes infections. Further testing determined the product sample tested positive for the outbreak strain. 

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, 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.”

Other locations were found to have a number of 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.” 

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.

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. A number of 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” or an investigation.

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.

Further prior to the outbreak, Defendant did not install any barriers that separated the processing lines, and pallet jacks and product racks were moved between all processing lines and all blast coolers, in violation of the standard of care and which the United States Department of Agriculture (USDA) found to constitute inadequate controls to prevent the spread of bacteria throughout the processing environment.

The USDA further found that prior to the outbreak, Defendant failed to have a written plan to describe employee practices and use of personal protection equipment (PPE) when moving between processing lines, which led to employees freely moving among lines without changing PPE, which is in violation of the standard of care. Moreover, Defendant’s employees who handled garbage, conducted maintenance, removed condensation, and removed debris from floors, were permitted to freely move between lines without proper sanitation and PPE, in further violation of the standard of care.

Prior to the outbreak, the USDA also found that Defendant allowed beaded  condensation to exist on door openings and inside at least one blast cell, dripping over and contaminating product.

The USDA confirmed that Defendant had an intentional practice of failing to maintain sanitary conditions during processing, handling, and storing of product.

Despite knowing of its egregious plant conditions and substandard manufacturing, processing, and packaging practices, Defendant falsely promised the following:

• “Our products are of unquestionable quality, without compromise, using only the best natural ingredients and nothing else.”
• “With Boar’s Head, you can trust each and every one of our products was prepared with the utmost care.”
• That Boar’s Head is “the brand consumers can count on for the highest quality delicatessen products in America.”
• Boar’s Head has “a passion to deliver on our promise for freshness and quality.”
• “At Boar’s Head, we are committed to providing the highest quality delicatessen products. Nothing less.”
• “[W]e are relentless about quality. If a product doesn’t live up to our exacting standards, it doesn’t carry the Boar’s Head name. Simple as that.” 
• “That’s why Boar’s Head has been the deli brand you can trust for over 115 years.”
• That consumers deserved “better quality . . . than what was [otherwise] available.”
• “Our standards for quality have never wavered.”
• We “only use the finest ingredients.”
• “Commitments like these have made us a leader in our industry and have made Boar’s Head the brand in which consumers continue to place their trust.”
• “Since 1905, our standards of quality have never wavered.”
• “Our mission is to continue to be recognized as the leading provider of exceptional customer service and superior quality delicatessen products.”
• “HIGHER STANDARDS FOR PREMIUM FOODS”
• Defendant also advertised certifications and partnerships with the American Heart Association, indicating that its products are “heart healthy,” and the Feingold Association, a non-profit that “spreads awareness of the role of foods and synthetic additives in behavior, learning, and health.” 
• We are proud to work with the American Heart Association^® in its Food Certification Program and others.
• Defendant also made express promises to Harris Teeter and other retailers that its products were safe for human consumption, free of all adulterants, and made with the highest standards of quality and wholesomeness. 

We shall see.

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

Source: https://www.marlerblog.com/case-news/what-listeria-litigation-against-boars-head-will-tell-us-all/