A federal court in Oklahoma has dismissed, without leave to amend, claims filed against the company that audited Jensen Farms before a 2011 Listeria outbreak sickened dozens of consumers, including the plaintiff, who allegedly contracted listeriosis from the strain linked to the farm’s cantaloupe and was hospitalized for a month. Underwood v. Jensen Farms, No. 11-348 (U.S. Dist. Ct., E.D. Okla., decided December 31, 2013). Auditor Primus Group, Inc. allegedly gave the farm a “superior” rating and 96-percent score after a July 25, 2011, audit, and the plaintiff became ill on September 2.
The court determined that the plaintiff could not show that the auditor owed him a duty under Oklahoma law because “the connection between the July 25, 2011, audit and the onset of Plaintiff’s illness [was] too remote in both time and circumstance. Significantly, Plaintiff has failed to plead facts sufficient to establish that the contaminated cantaloupe would not have been distributed if Primus had given Jensen Farms unsatisfactory audit results. To impose a duty on auditors absent a showing that such auditors maintained some control over the distribution of the manufactured goods would be illogical and impose an unreasonable burden on third-party auditors.”
The court also rejected the plaintiff’s attempt to impose liability under the Restatement (Second) of Torts §§ 311 and 324A or as a third-party beneficiary of the audit contract between Primus and Jensen Farms. In addition, the court determined that the plaintiff failed to sufficiently plead causation and made insufficiently conclusory allegations pertaining to his negligent hiring, selec- tion and monitoring claim against Primus. Because the plaintiff failed to file a motion for leave to amend and “his only request for leave to amend came at the end of his Response to Primus’ Motion to Dismiss,” the court found that it failed to comply with the relevant pleading rules and thus struck his request for leave. Information about the lawsuit that Jensen Farms has filed against the auditor appears in Issue 501 of this Update.