PritzkerOlsen, P.A., a national food safety law firm, has filed what is believed to be the first lawsuit against Whole Foods Market Group, Inc. and Forever Cheese, Inc. on behalf of a victim of the Listeria monocytogenes outbreak linked to cheese imported by Forever Cheese that has sickened at least 14 people in 11 states. The suit (CV12-4634) was filed in the United States District Court for the Eastern District of New York on September 17, 2012, by attorneys Fred Pritzker and Brendan Flaherty of the Pritzker law firm with local counsel, Lynch Daskal Emery, LLP.
The lawsuit was filed on behalf of John McKissick and his wife, residents of Pennsylvania. According to the Complaint filed in this case, on May 27, 2012, Plaintiff Patricia McKissick purchased a variety of cheeses from the cheese department at the Whole Foods store located at 5880 Centre Avenue, Pittsburgh, Pennsylvania.
According to the Complaint, Mr. McKissick consumed a portion of each of the cheeses purchased on May 27, 2012, over the following days. Several days after consuming the cheeses, Mr. McKissick began experiencing symptoms of listeriosis: nausea, vomiting, muscle aches and fever. When these symptoms intensified, he was hospitalized. A spinal tap was done and cerebrospinal fluid tested positive for Listeria monocytogenes. Testing done on this sample by the Centers for Disease Control and Prevention (CDC) determined that the PFGE pattern (DNA fingerprint) of the Listeria that sickened Mr. McKissick was the outbreak strain.
The CDC, Food and Drug Administration (FDA) and state health departments investigated and found the outbreak strain of Listeria monocytogenes in a sample from an uncut wheel of Frescolina ricotta cheese imported and then distributed by Forever Cheese, according to the CDC announcement of the outbreak. On September 12, 2012, Whole Foods initiated a recall of the Frescolina ricotta salata cheese. According to the Whole Foods recall notice, “The recalled ricotta salata Frescolina brand cheese was cut into wedges, packaged in clear plastic wrap and sold with a Whole Foods Market scale label using PLU 293427. All ‘sell by’ dates through Oct. 2 are affected…” The cheese was sold in Whole Foods Market stores in 21 states and Washington DC.
The Complaint alleges that prior to May 27, 2012, Whole Foods processed Frescolina ricotta salata cheese that was previously adulterated with the outbreak strain of Listeria monocytogenes by removing it from its original packaging, cutting it into smaller portions, repackaging it for retail sale and relabeling it. The Complaint then states, “In doing so, Defendant Whole Foods cross-contaminated other cheese products sold in Whole Foods stores with the outbreak strain. Mr. McKissick consumed a portion of each of the cheeses purchased on May 27, 2012, over the following days.”
“This is a complicated national outbreak that raises a number of important questions: when, where and how did this pasteurized cheese become contaminated by Listeria monocytogenes and how did cross contamination spread it to cheeses other than the recalled product?” Pritzker continued, “It certainly appears there is plenty of fault to go around in this case. An expensive, imported cheese was adulterated with Listeria monocytogenes after it was pasteurized. Cross contamination by others in the chain of distribution caused this adulteration to be spread to other cheeses. Consumers have a right to purchase cheese that’s safe and free of pathogens that cause serious injury and death.”
The Complaint states that Mr. McKissick suffered “profound nervous-system and cognitive dysfunction, including ventilator-dependent respiratory failure” and seeks money damages for Mr. McKissick and his wife.
Victims of the outbreak linked to ricotta salata cheese distributed by Forever Cheese and sold by Whole Market Foods can contact attorneys Fred Pritzker and Brendan Flaherty by calling their law firm, PritzkerOlsen, P.A., at 1-888-377-8900 (toll free) or via the firm’s food poisoning law blog. The number of CDC-confirmed cases of listeriosis are as follows: California (1), Colorado (1), District of Columbia (1), Maryland (3), Minnesota (1), Nebraska (1), New Jersey (1), New Mexico (1), New York (1), Ohio (1), Pennsylvania (1), and Virginia (1). Three people have died in the outbreak, according to the CDC.
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