Forget sharks or airplanes or venomous snakes. These days, cantaloupe is more deadly than them all.
Listeria linked to the pale orange melon killed at least 33 Americans and sickened another 147 last year, according to the Centers for Disease Control and Prevention, and a new cantaloupe food poisoning outbreak involving salmonella is under way in 21 states, with 204 confirmed infections and two deaths.
Widespread food poisoning means widespread litigation. The first two salmonella-related suits have already been filed, and dozens of cases stemming from the 2011 listeria outbreak are pending. Those on the hook include the cantaloupe growers as well as retailers such as Wal-Mart Stores Inc. that allegedly sold the tainted fruit.
The plaintiffs, many of them elderly, "never thought they could get sick from cantaloupe — ever. And it either killed them or nearly killed them," said William Marler, a name partner at Seattle food poisoning boutique Marler Clark, who represents 43 people who got listeriosis from cantaloupe.
To food safety advocates, the back-to-back cantaloupe outbreaks underscore a regulatory failure. When Congress passed the Food Safety Modernization Act almost two years ago, the idea was to give the U.S. Food and Drug Administration more power to prevent food-borne illnesses. But key regulations implementing the law — including one dealing with produce safety — have stalled at the White House Office of Management and Budget, where they have been under review for nearly 10 months.
Last week, the Center for Food Safety sued the FDA and OMB in San Francisco federal court for failing to issue timely regulations. "FDA has missed not one, not two, but seven critical deadlines, and counting, in failing to implement [the law's] major food safety regulations," the complaint states. The FDA's "failure to promulgate final regulations is not only a violation of the law but is putting human health and safety at imminent risk."
Could new safety regulations have prevented the cantaloupe illnesses? It's hard to say for sure, said Sandra Eskin, project director of the Pew Health Group's Food Safety Campaign. "But these are exactly the type of outbreaks the produce safety rules are intended to prevent."
FDA spokesman Curtis Allen in an email said, "We do not have a time frame for the rules. … This has been a complex and demanding process due to the interrelationships of the proposed rules and the impact that they will have in modernizing the nation's food safety system."
SPECIFIC TAINTED FOODS
According to the Centers for Disease Control and Prevention, 48 million Americans — one in six — get sick every year as a result of food-borne diseases, 128,000 are hospitalized and 3,000 die.
The incidents that tend to catch the interest of plaintiffs attorneys are those in which public health officials link an outbreak of illnesses to a specific tainted food — salmonella in peanut butter in 2009, for example, or E. coli in spinach in 2006.
Such a finding makes it much easier to overcome a basic hurdle in establishing liability — that the food was contaminated. Plaintiffs must also show that the food made them sick, often confirmed by a stool sample or blood test.
The complaint against Indiana cantaloupe grower Chamberlain Farm Produce Inc. and Wal-Mart filed in Calhoun County, Mich., Circuit Court on Aug. 23 is illustrative.
