The U.S. Department of Justice forged ahead with its unusually aggressive prosecution in the case of PCA executives including former CEO Stewart Parnell, for whom it has sought life in prison for his role in a salmonella outbreak that killed nine and sickened hundreds.
Criminal prosecutions in food illness cases have been generally rare in the past two decades, though in recent years the DOJ has signaled its intention to crack down on companies behind such outbreaks by pursuing misdemeanor charges against executives. The brothers who owned Jensen Farms faced only misdemeanor charges — and managed to avoid jail time — for a deadly listeria outbreak in 2011 linked to cantaloupes from their farm. And the owner of Quality Egg LLC and his son admitted to misdemeanor charges arising from a 2010 salmonella outbreak.
Even though the conduct at issue in the PCA case may be an outlier — the executives had been found guilty of intentionally shipping tainted peanut products — the tough punishment sought shows an agency sending a message to the industry, attorneys say.
"A life sentence in a food case is completely unprecedented," said David Rosenfield of Herrick Feinstein LLP. "When you think of them in federal cases, you think about major drug dealers involved in shipping tons of illegal drugs. But this will certainly get the attention of food manufacturers because of the felony charges and extremely high sentences sought by not just the government, but by the probation office."
Parnell, his brother Michael, who is a former PCA vice president of sales, and former PCA quality assurance manager Mary Wilkerson had been indicted in February 2013 on charges related to the food poisoning outbreak in 2008 and 2009, including mail and wire fraud, the introduction of adulterated and misbranded food into interstate commerce, conspiracy, and obstruction of justice.
Lynchburg, Virginia-based PCA knowingly shipped salmonella-tainted peanut products across the country, prosecutors alleged, saying they had forged laboratory testing certifications that could have alerted customers of the risk. Stewart Parnell and other PCA officials also allegedly lied to Food and Drug Administration investigators during their 2009 probe of the company’s Blakely, Georgia, plant, believed to be the source of the salmonella outbreak.
The defendants have not been successful so far in their bids to upend their convictions last September, and they are scheduled to be sentenced this month. Michael Parnell faces a prison term of nearly 22 years, while the government has recommended up to 10 years for Wilkerson.
Stewart Parnell had been successful in keeping references to deaths linked to the outbreak from the jury's ears, but an official from the Centers for Disease Control did testify that the outbreak sickened more than 700 people, including more than 160 who were hospitalized, which made it “one of the largest multistate outbreaks [the CDC has] ever investigated," prosecutors said in a court filing in July, citing the official's testimony.
Food defense attorneys say this case signals the harsher prosecutions to come for food manufacturers, who already believe that the criminal provisions in the Food, Drug and Cosmetic Act put them in a vulnerable position. Prosecutors can bring misdemeanor criminal charges against food manufacturers if their food was contaminated or adulterated, even if they didn't have knowledge of it.
Individuals guilty of misdemeanor charges face a prison sentence of up to one year and a fine of up to $250,000 for each count.
"Food manufacturers are in a unique position in terms of criminal liability," said Eric Sussman of Paul Hastings LLP. "This shows the DOJ's attempt to hold not just companies, but the individuals responsible. And they're sending a message to senior executives that they can be held responsible in a very serious way."
In April, Quality Egg executives Austin “Jack” DeCoster and his son Peter DeCoster were each given a three-month prison sentence and ordered to pay a $100,000 fine over a 2010 salmonella outbreak that sickened some 56,000 people. At the time, the U.S. attorney for the Northern District of Iowa said in a statement that the decision and case should warn executives that selling contaminated food could bear grave consequences for them.
"Claims of ignorance or 'I delegated the responsibility to someone else’ will not shield them from criminal responsibility,” the statement said.
In the PCA case, prosecutors have framed Stewart Parnell's conduct as more intentional, saying in their July filing that his company knowingly "sold truckloads of this product, every week, week after week,” referring to the tainted peanut products. The DOJ's ability to prove that intent is what drew the felony convictions, attorneys said.
"The DOJ and its division of criminal investigation made the decision that they could prove a case of intent, and I think the facts justified it here," food injury plaintiffs attorney Bill Marler said. "I've been working on food illness cases since the '90s, and I don't know of a case that I've had where the facts were so egregious that it was evident that the corporate leaders knew they were shipping packaging that was contaminated."
Mary Wilkerson is represented by Thomas G. Ledford of the Ledford Law Firm LLC.
Michael Parnell is represented by Edward D. Tolley and Devin Hartness Smith of Cook Noell Tolley & Bates LLP.
Stewart Parnell is represented by Thomas J. Bondurant, E. Scott Austin and Justin M. Lugar Gentry Locke Rakes & Moore LLP.
The United States is represented by Kenneth Dasher, Mary M. Englehart and Patrick H. Hearn.
The case is U.S. v. Parnell et al, case number 1:13-cr-00012, in the U.S. District Court for the Middle District of Georgia, Albany Division.
--Additional reporting by Erica Teichert and Joe Van Acker. Editing by Jeremy Barker and Philip Shea.
