2011 Listeria Cantaloupe Outbreak: Tragedy, Bankruptcy and Legal Vengeance

America is approaching the 2-year anniversary of an outbreak of foodborne illness that was linked to 147 illnesses in 28 states, including 33 deaths and one miscarriage. The crisis at Jensen Farms in Southeast Colorado would mark one of the largest outbreaks of listeriosis in U.S. history. Food Product Design took an indepth look at how the crisis impacted one Colorado family. This is Part 2 of a three-part multimedia report on the outbreak and its aftermath. Read Part 1 here.

MONUMENT, Colo.On Feb. 7, 2012, Mike Hauser returned home to Monument, a small town north of the U.S. Air Force Academy and the 14,115-foot Pikes Peak.

The 68-year-old had spent months in the hospital after eating a Listeria-tainted cantaloupe from Jensen Farms in Southeast Colorado.

Confined to a wheelchair, the retired podiatrist demonstrated little movement. Penny, his wife and the mother of their four adult kids, explains he could only move his left arm somewhat from his elbow to his hand. Otherwise, he was paralyzed, incontinent and in the early stages of a recovery that was expected to last for years.

Thirty-year-old Macaria Hauser, who admits she was "daddy's girl," moved back homeyet againto help her dad on the long road to recovery. It was a tremendous sacrifice for the Hausers' youngest daughter, who had previously cared for her father while he was recuperating from cancer treatment.

"You owe me big-time dad," Penny recalls, Macaria quipping during some of the more uncomfortable duties that came with the job.

There were signs of hope and happiness. Macaria would wheel her dad into the kitchen where the family would eat dinner together.

"He would pet [Macaria's dog] Bandit. 'Good dog. That's my good dog,'" Macaria reflects.

Heather Prins, Macaria's 35-year-old sister, says she was ecstatic to learn that her dad and mom were coming home. During the five-and-a-half month ordeal in Denver, Heather explains her mom had only slept away from the hospital on three occasions: Halloween, Thanksgiving and Christmas Eve.

Heather remembers walking into her dad's bedroom where he asked her how she was doing. The tears streamed down her face.

"I couldn't thank God enough for that," she reflects. "Like I said, my dad was the pillar of our family. He was just always there for us." 

Mike was aware of the tough road ahead.

"He knew, 'I got to keep working at this so that I can get out of bed again. I've been in bed for so long. That's why I'm weak,'" Macaria recalls.

Mike had only been home days 10 days when he choked on medicine that was intended to help him cough up excess mucus.

He stopped breathing. Macaria noticed her dad's lips were starting to turn blue. So were his fingertips and toes.

Mike was whisked away by emergency personnel to Penrose Hospital in nearby Colorado Springs. Although he had contracted an infection, the source of the problem couldn't be readily identified.

Penny was advised doctors might have to remove various apparatuses in order to identify the root of the infection. That meant potential removal of the shunt in Mike's brain and tubes that were connected to his subclavian, which had been implemented to administer medicine and draw blood.

Suddenly, the modest progress Mike had made under the care of loved ones, including learning how to eat and swallow again, had been undone. The family had come to a crossroad.

"And I thought what kind of life is this for her [Macaria]?", Penny contemplated.

"She doesn't need to be having this life. And she would have never ever given it up. She would have been here day in day out," Penny explains as her voice cracks, "taking care of Mike and I couldn't. I just couldn't see that for her life. To have that kind of life. And then for Mike to have to go through this recovery and this pain and these operations all over again, so finally I said that's it. I said nope."

Mike, the family decided, would be taken off the ventilator. Doctors said he wouldn't be able to breath on his own for a very long time.

"And they took him off, and eight hours later of the most horrific nightmare of hearing somebody groan and grasp for their last breath, it was horrific," Macaria says matter-of-factly. "And he waited until like 2 in the morningjust far enough that it was his birthday and I swear to God he did it on purpose so we didn't have to worry about him on multiple days and he died on his birthday."

Mike Hauser was 69 years old when he passed away.

Three months later, facing a number of wrongful death and personal injury lawsuits, Jensen Farms filed for Chapter 11 bankruptcy. Such a legal proceeding would allow the farm, which had been growing cantaloupes for two decades, to reorganize its operations.

"We'll definitely be back," Eric Jensen told 7NEWS in Denver in an article that was posted on Sept. 16, 2011.

However, the tragedies that have befallen the Hausers and other families may have sealed the fate of Jensen Farms.

The farm in Holly, Colo. hasn't planted any crops this year and doesn't intend to do so, James Markus, a Denver bankruptcy lawyer representing the business, said in an emailed statement last month. Markus attributes these circumstances, in part, to the bankruptcy, a drought in Southeast Colorado and legal claims that Jensen Farms has recently agreed to satisfy.

Jensen Farms, Bio Food Safetythe business that audited its facilitiesand Pepper Equipment have agreed to pay $3.8 million to 61 claimants. Penny Hauser and her lawyer declined to reveal her share, although she cited burdensome medical and travel expenses in connection with her family's ordeal, not to mention the incalculable loss of her spouse.   

"The settlements are with all 61 known tort claimants and resolve all the claims with those parties," Markus stated. "The process does not preclude other tort claimants from bringing claims; however, there are not any other tort claimants known at this time."

Jensen Farms hasn't decided whether to emerge from Chapter 11 or file for a Chapter 7 bankruptcy, according to Markus. A Chapter 7 proceeding, in which a company liquidates its assets, would mark the final chapter to an ignoble end for the Colorado farm.

Bill Marler, a Seattle-based food-safety lawyer representing the Hausers and dozens of other claimants, said the 61 claims were valued at more than $35 million. A process was initiated to confirm the claimants were connected to the cantaloupe outbreak, Alan Maxwell, an attorney in Atlanta who valued the claims in the bankruptcy proceeding, explained.

The $3.8-million settlement won't shield other defendants from liability. Marler has filed lawsuits across the country against Frontera Produce, which marketed Jensen Farms' cantaloupes; PrimusLabs, Jensen Farms' auditor, which retained Bio Food Safety as a subcontractor to conduct audits at Jensen Farms; Wal-Mart and The Kroger Co. subsidiaries (King Soopers; Dillons; and City Market) among others.

The lawsuits have been on hold due to the bankruptcy. All the litigants met last month in Denver for three days where mediators sought to facilitate a resolution. The talks were unsuccessful. Another mediation was scheduled to be held today (July 23) in Austin, Texas, in a last-ditch effort to avoid continuing litigation.

Marler noted the bankruptcy stay on litigation would be lifted once all settlement monies have been distributed. He anticipated that would occur this week.

If the parties cannot reach an agreement during mediation, Marler intends to file around 30 lawsuits in August. "Once they are filed, there will be discovery schedules and briefing schedules and probably be some methodology of consolidating cases in some fashion," he said.

At least some of the companies who have been sued by families of the victims have sought to distance themselves from blame.

According to lawyers representing PrimusLabs, the company performed a 2011 audit of Jensen Farms" in accordance with industry standards." PrimusLabs also offers environmental and microbiological testing to its clients; however, Jensen Farms didn't request such testing at the time of the 2011 audit, they said.

"Moreover, we are confident that its actions and conduct will ultimately be fully vindicated through the court process," the attorneys, Steven Weiner and Jeffrey Whittington of the law firm Kaufman Borgeest & Ryan LLP, wrote in a letter to Food Product Design.

However, the House Committee on Energy and Commerce told FDA Commissioner Margaret Hamburg, M.D., that the July 25, 2011, audit by PrimusLabs (giving Jensen Farms a 96% grade or "superior" rating) failed to identify problems her agency detected during a September 2011 visit to the farm. The third-party audit, the committee stated, was conducted by a PrimusLabs subcontractor over a four-hour period: James Dilorio of Bio Food Safety.

Jerry Walzel, the president of Bio Food Safety, which also filed for bankruptcy, didn't respond to multiple requests for comment for this article.

Will Steele, president of Frontera Produce, said the company's role in connection with Jensen Farms was limited to marketing the cantaloupe, although he acknowledged whether it owed legal duties to victims of the outbreak is a question that is pending in the courts.

"Frontera did not plant, grow, harvest or pack the cantaloupe," he stated in an email.

"In terms of lessons learned from this tragic event, it is clear on a national level there needs to be better knowledge regarding food safety," Steele said. "At the time of the outbreak, there was no nationwide standard for the process of harvesting, packing, and distributing cantaloupe. Food-safety programs were evolving prior to the outbreak, and they have continued to evolve. New federal food-safety rules and regulations that became effective after the outbreak may help reduce the risk of future outbreaks." 

Steele expressed empathy for the victims of the cantaloupe outbreak. "We at Frontera realize that nothing can undo the losses experienced by the families affected by the Listeria outbreak," he said. "Our hearts are heavy for their loss."

The outbreak has prompted cantaloupe farmers to implement stronger food-safety measures. For instance, farmers who grow Rocky Ford cantaloupes created an associationthe Rocky Ford Growers Associationand have invested more than $1 million on safety improvements, said Diane Mulligan, a spokesperson for the group.

Many victims of the outbreak identified the melons as "Rocky Ford" cantaloupes and the fruit was marketed as coming from the Rocky Ford region, according to the CDC. At the time of the outbreak, FDA noted the fruit may have been labeled "Sweet Rocky Fords." But Mulligan said the Jensen Farms cantaloupes were grown more than 90 miles from Rocky Ford, Colo., where the city's website states in large font: "Home of the World's Best Melons".  

"The farmers who grow Rocky Ford cantaloupe are 4th, 5th and 6th generation farmers with a spotless safety record for the past 126 years," stated Mulligan, who added farmers in the association hold members "to very high standards and are audited several times a year."

It has been nearly one-and-a-half years since Mike Hauser died. Has Jensen Farms reached out to his wife Penny for an apology? No. Was Penny surprised?

"I was. I was. I was," she acknowledges. "I mean I can't imagine just saying 'we were wrong. We're sorry.' I mean if they had seen what not only my Michael had gone through and my family went through."

Marler, the attorney representing Penny and other cantaloupe victims, said Jensen Farms hasn't issued an apology to any of his clients.

Jensen Farms' bankruptcy attorney was asked whether the Jensens wished to say anything to the victims and share how the outbreak has affected them personally. As of deadline, Food Product Design had not received a response.  

Nearly two years ago, after the company was sued by a 71-year-old man from Colorado Springs in connection with the outbreak, Eric Jensen told 7NEWS: "We're deeply saddened that there's a possibility that our family's cantaloupe could have gotten somebody sick."

Such sadness may not shield the Jensens from a criminal prosecution. The U.S. Attorney's Office in Denver, which is part of the U.S. Department of Justice, is said to be investigating Jensen Farms. As reported by Bloomberg News nearly a year ago, Denver prosecutors contacted Marler's office, requesting his clients' medical and health department records. In a brief phone interview last week, Marler said he delivered the records but the U.S. Attorney's Office hasn't been in touch with him since he was initially contacted about a year ago.

"I have no idea what they are doing," he said.

Jeffrey Dorschner, a spokesman for the U.S. Attorney's Office in Denver, declined to comment on whether there is an ongoing criminal investigation into Jensen Farms.

Prosecutors have a powerful weapon at their disposal should they bring misdemeanor charges against the Jensen brothers for alleged violations of the Federal Food, Drug and Cosmetic Act: what's known as the "Park Doctrine". Under this doctrine, the law firm Hyman, Phelps & McNamara explains in a blog, "government need only demonstrate the official was in a position of authority to prevent or correct the alleged violation."

Prosecutors under the "Park Doctrine" need not prove that the responsible corporate official intended to commit the crime, explains lawyer Frederick Ball, who is vice chair of Duane Morris' white-collar criminal defense division.

"Knowledge of and actual participation in the violation are not a prerequisite to a misdemeanor prosecution but are factors that may be relevant when deciding whether to recommend charging a misdemeanor violation," FDA states in a guidance document.

A misdemeanor charge under the Federal Food, Drug and Cosmetic Act carries up to one year in jail, but FDA explains that a misdemeanor can form the basis for it to ban or "debar" a guilty party from working in an industry.

Ball said the Justice Department could bring charges through a grand jury indictment or information complaint. The former is a more powerful tool, Ball explains, because a grand jury has authority to subpoena witnesses and compel testimony during the investigation.

The son of a carpenter/mill worker (Orville) and a stay-at-home mom (Evelyn), Mike Hauser grew up in a modest two-bedroom house next to the train tracks in Wyoming, Ohio. For years, his daughter Holly says, her dad and his brother slept in a pull-out couch in the family room.  

In 1975, Mike and Penny Hauser moved to Colorado with two youngsters in tow: their son Craig, age 7, and Holly, 5. Mike had just graduated from the Ohio College of Podiatric Medicine in Cleveland. The family grew with the births of Heather (1978) and Macaria (1983).

A dirt road still leads to the Hausers' home, which sits on an acre of land, surrounded by aspen trees and ponderosa pines. The Rockies can be seen outside the dining room on the family's sprawling deck. [Penny recently cut down several trees in response to this summer's Black Forest Fire near Colorado Springs, the second destructive forest fire in the area in two years]. 

Mike built a basketball court in the yard for his athletic family. His oldest daughterthe 5-foot, 9-inch Hollywent on to play Division I women's basketball as a shooting guard for Tulane University. A go-getter, Holly earned grants and scholarships that paid for her college education. She now serves as director of customer service and supply for MillerCoors.

Playing outside as a girl, Holly always knew when it was time to come home. Her dad would whistle.

When not swinging a golf club, hunting elk with a bow, or treating his patients' feet, Mike liked to build, fix and refurbish things like the 16-by 20-foot hot-tub room Penny boasts he designed and framed with very little assistance.

Holly says her dad was empathetic to his patients, often providing them care even if they lacked insurance and money to pay for his services. The podiatrist, his wife notes, never had to defend a lawsuit in his practice.  

At home, Holly reminisces, her dad didn't take himself too seriously. Dancing. Singing. Making funny noises. James Taylor, Leon Redbone and Seals and Crofts were among the artists he'd play in the house.

Mike was keen to learn what his kids had been up to each day. In Craig's room, he would talk to his son for what seemed like an eternity to Holly.

"I'd have to pound on the wall. 'Shut up. I'm going to bed,'" she recalls.

With 15 years between her and her oldest brother (Craig), Macaria Hauser was the baby of the house.

"I'm definitely the daddy's girl. Absolutely," Macaria acknowledges. "He backed me up if I ..."

Mom interrupts.

"She never could do anything wrong. She never did anything wrong. It drove me crazy Her dog would come over. Her dog could do no wrong either."

Bandit, Macaria's dog, would place her paws on the counter.

"Any dog would do that my dad would have a fit," Macaria admits.

Not so with Bandit. "She's just looking," her dad would say. "Don't you dare yell at her."

Penny emphasizes Mike was present in all the lives of his four children: "His kids, his family came first. Always first."

"I don't want to just say Macaria is the princess," Penny says later. "They always called and consulted dad. 'We are going to do this investment, dad. What do you think about this? Or the dishwater broke. Can you fix it over the phone?' If he couldn't fix it over the phone, he'll say, 'I'll stop by tomorrow night, we'll get it fixed. Or I'll come up on the weekend. Give me your list of stuff to do.'"

Mike's daughters agree their dad was always present for their sporting events and other activities.

Holly is asked what she misses most about her dad. She laughs. Then, there is a long pause.

"I guess it's just his presence," she begins.

Penny Hauser now lives alone. She is grateful for the days when Macaria and her other kids come down to Monument to see her.

A grandmother to six girls and one boy, Penny shows a visitor a picture of two babies, Audrina, Heather's daughter and Bristol, Holly's youngest child. They were only 1-year-old when Mike fell ill from eating the tainted cantaloupe. Mike had taught Audrina to put her finger up to show people how old she was.

"These babies still talk about Poppy. They still talk. Now how do they know?", Penny, whose grandkids call her "Slam", wonders. "I mean it's incredible. They'll talk about him The two babies talk about seeing Poppy. 'I see Poppy. He tell me he love me.'" 

One day last fall, Heather walked into Audrina's room where she had woken up in her crib.

"She said, 'I saw Poppy last night,'" Heather, an instructional coach at Cherry Creek School District, remembers. "She said, 'he told me he love me.' She said, 'he gave me two kisses.'"

Audrina afterwards said, "Poppy is going down to give Slam two kisses."

Heather was floored. She explains it was tradition for her parents to give their own kids two kisses. But she insists her 3-year-old daughter would have no knowledge of this fact.

"We have never ever done that. Ever. I have never said to her 'give me two kisses,'" Heather maintains. "We have never said two kisses There was no way in the world she would ever know that."

Food Product Design will post a slideshow next week, detailing some key timelines in the 2011 cantaloupe outbreak.