Tainted Papayas Sowing Litigation Crop, Lawyers Say

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By Steven M. Sellers

A 24-state salmonella outbreak traced to Mexican papayas has yet to produce a wave of foodborne illness litigation, but that may soon change, food safety lawyers tell Bloomberg BNA.

The outbreak is unusual because it involves papayas from four different Mexican farms. Only one personal injury case has been filed in connection with the outbreak so far, but groundwork is being laid for litigation that could target growers, importers, distributors, and retailers of the fruit.

“We presently are investigating several cases and are trying to link retail outlets to the importing supply chain,” prominent food safety lawyer William Marler, of Marler Clark, Seattle, told Bloomberg BNA Sept. 19.

“As the size of the outbreak grows, the likelihood of litigation grows as well, especially given the significant numbers hospitalized and the two deaths,” Marler, who represents plaintiffs, said in an email.

The bacterial outbreak emerged in March and the toll has risen steadily. So far, 235 illnesses, 78 hospitalizations, and two deaths have been traced to Maradol papayas, the U.S. Centers for Disease Control and Prevention said Sept. 15.

Those numbers are likely to rise, but FDA spokesman Peter Cassell declined Sept. 19 to comment on the status of the outbreaks beyond the agency’s Sept. 15 update.

Dearth of Cases

Despite the large-scale outbreak, only one foodborne illness case has been filed so far, according to a Bloomberg BNA analysis.

That case, Colon v. Grande Produce Ltd. Co., was filed in the U.S. District Court for the District of New Jersey in July, before illness counts and potential sources mushroomed.

Gabriel Colon alleges he was hospitalized in June with vomiting, diarrhea, and stomach cramps after he ate salmonella-tainted papayas from a New Jersey market.

“As the outbreak grows and more injured people come forward, I anticipate that more suits will be filed,” Colon’s attorney, Jory Lange, of Robins Cloud in Houston, said Sept. 20.

“When a ready-to-eat food, like papaya, becomes contaminated with salmonella, it is particularly dangerous,” Lange said, adding that because most fruit is eaten without first being cooked, there isn’t a “kill step” to destroy the bacteria.

“That’s why we are seeing such a high rate of hospitalizations in people affected by this outbreak of salmonella in papayas,” Lange said.

Counsel for Grande Produce LTD, Co. didn’t respond to a request for comment sent Sept. 20.

“The dearth of cases is somewhat surprising given the number of cases,” food safety attorney Ryan Osterholm, of Pritzker Hageman in Minneapolis, said Sept. 20.

But he added that the low litigation numbers could stem from a variety of factors, including the time it can take for sickened food consumers to trace back the source of their illnesses.

“When we see a very long epicurve like this, people get sick, they get better, and they just don’t know their illness was caused by the fruit,” said Osterholm, who doesn’t currently represent any clients injured in the papaya outbreaks.

“Many people who consume these fruits are also Hispanic, and it may be they don’t know their rights,” said Osterholm, who represents plaintiffs in foodborne illness litigation.

Osterholm said he wasn’t surprised that at least eight serotypes, or strains, of the bacteria have been identified in the recalled papayas.

“When you have these widely spread outbreaks, it’s not unusual to see different serotypes,” he said.

More than 2,500 strains of salmonella exist, less than 100 of which account for most infections in humans, the CDC says.

More investigation may be required to explain the nearly simultaneous outbreaks from the four Mexican farms, and the contamination might involve irrigation systems shared by some or all of the farms, Osterholm said.

Recalls

Four brands of papayas have been recalled so far, and the FDA reported on Sept. 11 that “increased import screening” revealed a strain of salmonella closely related to that found in 14 outbreak cases.

The recalled papayas include:

  •  Caribeña brand, distributed by Grande Produce
  •  Some Cavi brand papayas distributed by Agroson’s LLC
  •  Valery brand papayas, distributed by Freshtex Produce LLC
  •  Frutas Selectas brand papayas, distributed by Bravo Produce Inc.
The CDC and FDA advise consumers not to eat the recalled papayas, and to dispose of them immediately.

Outbreak History

Salmonella is estimated to cause an estimated one million foodborne illnesses in the U.S. each year, including 19,000 hospitalizations and 380 deaths, according to the CDC.

This isn’t the first large-scale salmonella outbreak traced to farms in Mexico or the U.S.

In 2015, salmonella traced to cucumbers sickened 907 people in 40 states and caused six deaths, according to the CDC. That outbreak was traced to two U.S. produce companies, but the original source of the contamination wasn’t determined in all of the cases.

Mexican cucumbers were responsible for another salmonella outbreak in 2013 that sickened 84 people in 18 states, according to CDC data.

And in 2012, mangoes from a farm in Sinaloa, Mexico, accounted for 127 illnesses and 33 hospitalizations.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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