Attorney Bill Marler of Seattle’s Marler Clark, the nation’s only law firm dedicated to representing victims of foodborne illness, filed a wrongful death lawsuit against Safeway Inc., in the Superior Court of Santa Cruz on behalf of James Raymond Frey, 87, and the estate of his deceased wife, Shirlee Jean Frey, 81, who died tragically on December 2, 2014 after consuming a Listeria-tainted caramel apple purchased at the Safeway in Felton, California. The case number is CISCV180721. The complaint was amended to add in two additional parties – Happy Apple and Bidart Brothers. Local co-counsel is Harry Stern of Rains Lucia Stern in San Francisco.
The events leading up to Mrs. Frey’s death began just before Halloween 2014, when she went to the Safeway store in Felton, California, and purchased, among other things, a commercially produced, prepackaged caramel apple. Shortly after consuming the caramel apple later in the week, Mrs. Frey suddenly began to feel ill.
On November 6, due to weakness and instability related to her illness, Mrs. Frey fell and hit her head. She was rushed to the emergency room, where the decision was made to airlift Mrs. Frey to Stanford Hospital for surgery on what was thought to be a brain-bleed. On November 14th, after the surgery, Mrs. Frey was deemed well enough to be discharged and admitted for rehabilitative care. She appeared to be improving over the next ten days, however, her condition soon started to deteriorate.
On Thanksgiving Day, Mrs. Frey could not be awakened and was immediately readmitted to care at Stanford Hospital. On December 2, the doctors at Stanford Hospital informed the family that Mrs. Frey was suffering from a listeria infection—listeriosis (later confirmed by health department investigators). Already shocked and devastated, the family was informed later that day that Mrs. Frey had died as a result of the infection.
“My deepest sympathies go out to the Frey family,” said Marler. “Listeria is a brutal illness, but it is completely preventable. It is sickening and shocking when outbreaks like this one occur as it means the most basic precautions were not taken.”
The FDA has traced the distribution of the caramel apples eaten by eight ill people involved in the outbreak. Although the Happy Apple Company and Merb’s Candies receive apples from other growers, the FDA’s ongoing traceback investigation has confirmed that Bidart Bros. is the only apple grower that supplied apples to both companies. On December 22, 2014, Bidart Bros. issued a recall of Granny Smith apples it sold in 2014 to those customers known to produce caramel apples. Then, on December 24, 2014, Bidart Bros. notified all customers receiving Granny Smith apples in 2014 to recall those apples if they had been used to make caramel apples. Bidart Brothers from California, who processed Granny Smith and Gala Apples this last fall, have been the common denominator as the source of apples used in the production of caramel apples implicated in the latest illnesses and deaths. It is unclear if Bidart Brothers also supplied Del Monte or Giant Eagle in earlier recalls. However, to date Bidart Brothers have not recalled any apples, although I expect that to change.
Happy Apple reported that it recently received notice from Bidart Brothers, one of its apple suppliers to the Orosi California facility, that there may be a connection between this outbreak and the apples that they supplied to that facility.
California Snack Foods issued a voluntary recall of California Snack Foods brand caramel apples with a best use by date between August 15th and November 28th 2014.
Pacific Coast Fruit announced on its website that it was made aware that Bidart Brothers was recalling apples sold to caramel coated candy apple. Happy Apples purchased apples from Bidart Brothers and Pacific Coast Fruit in turn distributed Happy Apples to Pacific Coast Fruit customers. Pacific Coast Fruit Company is now in the process of contacting customers and recalling all Happy Apple brand apples sold after September 22, of 2014.
Merb’s Candies is issuing a voluntary recall of the Merb’s Candies brand Bionic Apples and Double Dipped Apples. Merb’s Candies has been working with the Food and Drug Administration in their investigation of the current outbreak of Listeriosis, which has been associated with caramel apples. Bidart Brothers, who is one of Merb’s Candies apple suppliers, has initiated a recall, as there may be a connection between this outbreak of Listeria monocytogenes and apples they supplied Merb’s Candies.
Although no recall has been announced, Minnesota cases purchased caramel apples from Cub Foods, Kwik Trip, and Mike’s Discount Foods, which carried Carnival brand and Kitchen Cravings brand caramel apples. These apples were produced by H. Brooks and supplied indirectly by Bidart Brothers.
The CDC reports as of December 30, 2014, a total of 32 people infected with the outbreak strains of Listeria monocytogenes have been reported from 11 states: Arizona (4), California (2), Minnesota (4), Missouri (5), Nevada (1), New Mexico (6), North Carolina (1), Texas (4), Utah (1), Washington (1), and Wisconsin (3). Dates when the Listeria strains were isolated range from October 17, 2014, to December 11, 2014. Ten illnesses have been associated with a pregnancy (occurred in a pregnant woman or her newborn infant). One fetal loss has been reported. Among people whose illnesses were not associated with a pregnancy, ages ranged from 7 to 92 years, with a median age of 66 years, and 32% were female. Three invasive illnesses (meningitis) occurred among otherwise healthy children aged 5–15 years. Thirty-one ill people have been hospitalized and six deaths have been reported. Listeriosis contributed to three of these deaths, and it is unclear whether it contributed to an additional two deaths. The sixth death was unrelated to listeriosis. The Public Health Agency of Canada (PHAC) has identified 2 cases of listeriosis in Canada with the same PFGE patterns as seen in the US outbreak. PHAC is working with its provincial and territorial partners to determine the source of these illnesses.
Listeria monocytogenes is an organism that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, Listeria infection can cause miscarriages and stillbirths among pregnant women. Approximately 2,500 cases of listeriosis are estimated to occur in the U.S. each year. About 200 in every 1,000 cases result in death.
Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of Listeria outbreaks. The Listeria lawyers of Marler Clark have represented thousands of victims of Listeria and other foodborne illness outbreaks and have recovered over $600 million for clients. Marler Clark is the only law firm in the nation with a practice focused exclusively on foodborne illness litigation. Our Listeria lawyers have litigated Listeria cases stemming from outbreaks traced to a variety of foods, such as cantaloupe, cheese, celery and milk.