Blue Bell Listeria Outbreak Leads to Lawsuit

     AUSTIN, Texas (CN) – A man says in a federal lawsuit that he developed a severe infection and nearly died after consuming Blue Bell ice cream products contaminated with listeria.
     David Phillip Shockley sued Blue Bell Creameries on Tuesday, alleging claims for strict product liability, negligence, breach of warranties and violations of state and federal laws regarding food safety.
     According to the complaint, as early as 2010 Blue Bell produced its ice cream at facilities “infested with Listeria monocytogenes and as a result, produced ice cream products contaminated with the deadly pathogen.”
     The complaint notes that Listeria monocytogenes “tends to thrive in food processing environments,” that it can grow slowly on foods in a refrigerator, and that freezing “has very little detrimental effect on the organism.”
     As a result, ready-to-eat processed foods like ice cream are especially susceptible to listeria contamination, the plaintiff says.
     Listeriosis is a life-threatening infection that occurs when people eat food contaminated with Listeria monocytogenes. The people most at risk for listeriosis are pregnant women and their newborns, adults 65 and older, and people with weakened immune systems, according to the CDC.
     Shockley says he was exposed to the contaminated Blue Bell products in 2013 at age 31, while working in Houston as a facility administrator at a retirement community.
     Shockley “regularly consumed single-serving Blue Bell ice cream products” as well as other Blue Bell ice cream products while at work, according to the complaint. He says that he previously suffered from ulcerative colitis, which made him “particularly vulnerable to food contaminated with Listeria monocytogenes.”
     In October 2013, Shockley developed a severe headache with nausea and had to seek emergency treatment. He was discharged to go home by emergency personnel but lost consciousness several hours later.
     Shockley’s friends and colleagues found him at home to be “unresponsive, pale, febrile, and in clear respiratory distress,” the complaint says.
     Shockley was admitted into intensive care at the hospital, was on artificial respiration for five days, and did not regain consciousness until six days later.
     When Shockley woke up, he could not walk, talk, swallow or move much of his body, according to the complaint.
     Doctors later performed a spinal tap and tested Shockley’s cerebrospinal fluid, which resulted in a diagnosis of Listeria meningitis with encephalitis. He was later released from ICU to an inpatient rehabilitation program.
     He remained “unable to speak or walk and required around-the-clock assistance,” the complaint says. From rehab he returned to his childhood home in Maryland to live with his parents, who care for him to this day.
     Shockley cannot work, and “there is no cure or therapy other than continued physical therapy for his residual neurologic deficits and cerebellar atrophy,” the complaint states, citing the man’s medical records.
     The CDC and state and local health departments began investigating five listeriosis infections in Kansas in March 2015. The cause of the infections was determined to be the single-serving Blue Bell product called “Scoops.”
     Three of the five Kansas patients died.
     The Kansas investigation led to a limited recall by Blue Bell of the implicated products from the Brenham facility earlier this year.
     The discovery of listeria contamination in Blue Bell’s 3 oz. institutional/food service chocolate ice cream cups resulted in an expanded recall that included cups that had been distributed to schools, nursing homes and hospitals in 23 states.
     A subsequent FDA investigation found listeria in a one-pint container of Blue Bell banana pudding ice cream from the Oklahoma facility, resulting in a third recall.
     Last month, Blue Bell finally voluntarily recalled all products currently on the market due to possible listeria contamination.
     The recall happened after Blue Bell found the bacteria in samples of its chocolate chip cookie dough ice cream produced on March 17 and March 27.
     According to the CDC, there have been at least ten listeriosis cases associated with Blue Bell outbreak across four states, including Arizona, Kansas, Oklahoma and Texas.
     All three deaths associated with the outbreak occurred in Kansas.
     FDA inspections of Blue Bell’s three production facilities in March and April revealed a “longstanding and pervasive Listeria monocytogenes infestation and a manifestly ineffective sanitation program,” according to the complaint.
     “As a result of Blue Bell’s obviously deficient sampling and sanitation program, among other factors, the Broken Arrow facility had a shocking history of Listeria positive test results and a failure of its cleaning and sanitation practices,” Shockley’s complaint says.
     The man says the FDA also found that Blue Bell “repeatedly and brazenly violated” an Oklahoma Department of Agriculture regulation limiting the presence of coliform in frozen dairy products by releasing products “despite testing showing dangerously high levels of bacteria.”
     “Blue Bell continued to ship and sell to consumers obviously dangerous ice cream products,” the complaint says.
     Blue Bell said it has undertaken “an intensive cleaning program” as well as new training for employees as part of its “fresh start” following the contamination controversy, recalls and investigations.
     Its CEO Paul Kruse said, “We initially believed this situation was isolated to one machine in one room, we now know that was wrong. We are implementing a procedure called ‘test and hold’ for all products made at all of our manufacturing facilities. All products released will be tested first and held for release to the market only after the tests show they are safe.”
     Blue Bell will not be allowed to sell any ice cream produced at its Brenham plant until it meets the requirements of the Texas Department of State Health Services.
     Blue Bell must notify the department two weeks before it starts producing ice cream for public sale. This will allow health officials to fully assess the company’s progress and test results. Blue Bell and DSHS will test trial-production runs of ice cream, and the trial runs must consistently test negative before any products can be distributed to the public.
     Additionally, for two years after production resumes, Blue Bell must report any positive listeria test result to DSHS within 24 hours.
     The CDC has warned consumers not to eat or serve any Blue Bell products.
     One of Shockley’s attorneys, Fred Pritzker, told Courthouse News that Shockley continues to suffer from the effects of listeria meningitis and related neurological problems, which impact his speech, balance, cognitive function and emotions. Shockley is not expected to see much improvement in his condition.
     Pritzker said the Blue Bell outbreak resulted from “a systemic failure encompassing basic aspects of food safety.”
     Blue Bell told Courthouse News that it cannot comment on the lawsuit and said that it does not “have a firm timeline for when Blue Bell ice cream will be back in stores.”
     Shockley seeks compensatory damages, as well as punitive damages for the “wanton, willful, fraudulent, reckless acts of the Defendants, who demonstrated a complete disregard and reckless indifference for the safety and welfare of the general public and to the Plaintiff.”
     He is represented by John Volney of Lynn Tillotson Pinker & Cox in Dallas, and the firm PritzkerOlsen in Minneapolis.
     Blue Bell began in 1907 in Brenham, Texas, as the Brenham Creamery Company. In 1930, it changed its name to Blue Bell Creameries in honor of the bluebell wildflower.
     The company says it is among the top three of the best-selling ice creams in the country, with processing facilities for its ice cream products in Texas, Oklahoma and Alabama. It sells products in 23 states and claims its customers call it “the best ice cream in the country.”

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