WEST VIRGINIA RECORD

CLARKSBURG – A peanut butter manufacturer that is defending itself in multiple lawsuits across the country after a salmonella outbreak has asked the federal court for West Virginia's northern district to keep a complaint within its jurisdiction.

On March 20, ConAgra asked the federal court to remove a salmonella case that Brian W. and Angela Cross filed against it from Harrison Circuit Court to federal court.

It says that even though the Crosses allege their damages amount to less than $75,000, the couple may be awarded in excess of $75,000 because they are seeking punitive damages. In addition, the Crosses and ConAgra are residents of different states. Therefore, ConAgra contends the case belongs in federal court.

In their original complaint, the Crosses say they bought a jar of Peter Pan Plus peanut butter from a Harrison County Kroger's on Feb. 13, 2007.

On the same day, Brian Cross ate a "substantial amount" of the peanut butter. Later that day, he began to suffer from diarrhea, nausea and vomiting, according to the complaint.

Brian Cross' illness continued until he went to a doctor on Feb. 16, 2007, the suit says.

However, ConAgra denies its peanut butter was the cause of Brian Cross' illness.

"Plaintiffs' alleged injuries and damages were due to, and proximately caused by, in whole or in part, a preexisting, intervening, or superseding injury, illness, condition, or other cause," the suit states. "Plaintiff Brain W. Cross's illnesses, if any, were the result of natural health processes and would have occurred just as they did regardless of ConAgra's actions or conduct."

On Feb. 14, 2007, the FDA issued a national warning, advising people not to eat certain jars of Peter Pan peanut butter due to the risk of salmonella contamination, according to court documents.

During an April 2007 inspection of a ConAgra plant in Georgia, authorities discovered multiple open portals for entry of vermin.

"Rat tracks were present, as were roaches, bird feathers and more than 100 rat traps," the suit states.

Since salmonella can be found in the feces of rats and birds as the bacteria live in their intestinal tracts, the Crosses implied the rats and birds in the plant may have caused the salmonella outbreak.

But ConAgra denies the assertions and released a statement after the outbreak claiming that the bacterial contamination was due to an intrusion of moisture from faulty sprinklers and a leaky roof, according to the complaint.

Even if ConAgra is correct in its assertion, the company "should have been monitoring [the issue] vigilantly after confirmed contaminations in 2004," the Crosses say in their complaint.

Because of Brian W. Cross' illness, his wife claims she suffered the loss of his services, society, comfort and benefit.

The Crosses say their damages amount to less than $75,000. They are seeking unspecified compensatory damages, punitive damages and damages to compensate them for their annoyance, aggravation, inconvenience and emotional distress, plus pre- and post-judgment interest, attorney's fees, costs and other relief the court deems just.

However, ConAgra contends the amount in controversy in the Crosses complaint is more than $75,000 because they are seeking punitive damages in addition to other damages.

"In fact, courts routinely hold that a plaintiff's seeking of punitive damages alone (without any consideration of other damages) meets the jurisdictional minimum required to confer diversity jurisdiction," the suit states.

In addition, previous similar individual cases alleging food-borne illnesses have resulted in awards of more than $75,000, ConAgra says.

"Indeed, a quick search of verdicts, settlements, and arbitration/mediation awards nationwide reveals nine cases where $100,000 or more was awarded to plaintiffs, and two claimants sickened by Salmonella recovered more than $1 million," the suit states.

Other federal courts, including one in Kentucky, have recently denied motions to remand Salmonella cases to circuit court after finding the amount in controversy exceeded $75,000, according to the complaint.

In its answer to the complaint, ConAgra asked the court for judgment in its favor, plus costs, attorneys' fees and other relief the court deems appropriate.

If a judgment is entered in the Crosses' favor, ConAgra asked the court for a set-off for funds paid in settlement on behalf of other alleged joint tortfeasors and settling parties.

Gregory W. Schillace of the Schillace Law Office in Clarksburg will be representing the Crosses.

Andrew B. Cooke and Susan Wong Romaine of Flaherty, Sensabaugh and Bonasso in Charleston will be representing ConAgra.

U.S. Federal Court case number: 1:09-CV-40