Belen man says tainted melon from Walmart caused brain injuries


A Belen man, who claims a cantaloupe he bought from Walmart in Belen made him sick, is suing the store as well as the distributor of the melon and the company that provided agricultural auditing services for the Colorado farm that grew the fruit.

Chris Wallace, 53, with the assistance of his guardian, Scott Voorhees, has filed a complaint for personal injuries in Santa Fe District Court against Walmart, Frontera Produce Ltd. and the Primus Group, Inc.

According to the lawsuit, Wallace suffered brain injuries as a result of consuming cantaloupe contaminated with listeria.

Wallace claims he bought a melon from Walmart in August 2011, one month before the Colorado Department of Public Health and the Environment announced it was investigating an outbreak of listeriosis.

The CDPHE said the outbreak was "linked to cantaloupe from the Rocky Ford (Colorado) growing region … It was subsequently determined that contaminated cantaloupes were grown by Jensen Farms."

The outbreak resulted in 147 people from 28 states being infected with any of five out-break strains of listeria, with 33 reported deaths. The lawsuit states 15 New Mexico residents, including Wallace, were infected.

After the Food and Drug Administration announced it had found bacteria samples of listeria monocytogenes on samples taken from equipment in the Jensen's packing facility, the cantaloupes were recalled.

The lawsuit claims that Primus, "which held itself as an expert in the field of food safety, including … the analysis and assessment of food safety procedures," subcontracted the audit to Bio Food Safety, which conducted the audit at Jensen Farms one week before the listeria outbreak.

The suit claims Bio Food Safety gave the farm a "superior" rating and a score of 96 percent.

The plaintiffs contends that conditions at the Colorado farm should have caused the packing house to fail the audit.

"Had the Jensen Farms' packing house failed the July 25, 2011, audit, the cantaloupe that caused the plaintiff's listeriosis illness would not have been distributed by the Jensen Farms and Frontera," the lawsuit claims.

According to the suit, Wallace fell ill during the Labor Day weekend of 2011. On Sept. 7, Wallace's partner, Alan Tomalavage, owner of Bernie's fabric store in Belen, noticed Wallace had suffered a stroke and took to him to an Albuquerque hospital emergency room.

In the days following, Wallace had to have a feeding tube inserted and underwent an array of tests.

He was later transferred to a rehabilitation center, where his condition deteriorated and he was hospitalized again.

After further testing, doctors diagnosed Wallace as having rhombencephalitis, a permanent brain injury known to be associated with listeria infection.

Randy Hargrove, a spokesman for Walmart, said the company has not yet seen the lawsuit.

"We are committed to our customer safety and we take food safety concerns very seriously," Hargrove said in an email.

Will Steele, president of Frontera Produce, said in a statement to the News-Bulletin that, before the outbreak, Frontera had developed a food-safety program that went beyond what the FDA and other government agencies required.

He said Frontera had marketed Jensen Farms produce for years before the outbreak without adverse health consequences to the public.

"Immediately prior to the distribution of the cantaloupe, Jensen Farms hired an independent, third-party auditor and underwent a food-safety audit of its packing facility," Steele said. "The auditor inspected the facility and awarded Jensen Farms very high grades.

"Frontera's role in this process was limited to marketing the product —specifically, to arrange for the sale and in some instances, for the transportation of the cantaloupe," he added.

"Frontera did not plant, grow, harvest or pack the cantaloupe. However, because Frontera was in the chain of distribution for the cantaloupe, it may have a legal responsibility to some of the victims — that question is pending a determination by the courts involved."

The attorney for Primus Labs would not comment because of the pending lawsuit.

Wallace's attorney said other than suffering from rheumatoid arthritis since 2006, Wallace was living a healthy and active life until the summer of 2011.

"Since his discharge … Chris has truly struggled," said Bill D. Marler, an attorney with the Food Safety Law Firm in Seattle, Wash.

"He has suffered a dramatic and permanent brain injury that permeates every aspect of his life. Chris was formerly an equal participant in the affairs of the fabric business with his partner, Alan, but now simply cannot function as a businessman."

Marler said Wallace has lost all functional short-term memory, often meeting people only to forget minutes later who they are or that he had just met them at all.

Three other lawsuits have been filed in New Mexico after the listeria outbreak.

Two separate families have filed a personal injuries and wrongful death lawsuit in U.S. District Court against Walmart, Frontera and Primus. One died three days after being diagnosed with one of the four strains of listeria monocytogenes, and the other died a few weeks later.

The family of a 96-year-old Hobbs woman also filed a federal lawsuit for personal injuries and wrongful death in the Fifth Judicial District Court in Lea County.

The woman, who had developed meningitis, died a week later.

According to that lawsuit, the health department secured a sample of the leftover cantaloupe from the woman's home, and it tested positive for one of the strains of listeria involved in the outbreak.

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