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Judge grants $4 million in wrongful death suit against Big Olaf Creamery
By Coral Beach on January 24, 2023
The husband of a woman who died from a Listeria infection from eating ice cream made by Big Olaf Creamery has been awarded $4 million in damages.
The victim, Mary Katherine Billman, was the primary caretaker of her husband Richard Billman who suffers from dementia and other health problems.
Mary, 79, was visiting her daughter in Florida in January of 2022 and ate ice cream from Big Olaf on Jan. 18. She was dead in less than two weeks.
"Unaware of the threat growing silently within her body, it was too late to save her life by the time Mary developed the signs and symptoms of the infection that was about to make her gravely ill. Less than two weeks after ingesting the ice cream, Mary Billman was dead," states the wrongful death lawsuit filed in federal court in Florida.
The $4 million damage award, which includes $1 million in punitive damages, was decided by Judge William F. Jung following an Evidentiary Hearing on Jan. 20, 2023. It was entered against Big Olaf Creamery LLC of Sarasota, FL.
Mary died on Jan. 29, 2022. She is survived by her husband Richard Billman, three daughters, Richelle Brown, Kelli Mitsdarfer, and Kara Gray, eight grandchildren and four great-grandchildren.
Her husband and daughter Richelle were holding her hands when she died after being treated in the emergency room at Memorial Regional Hospital South in Hollywood, FL, for three days. No ICU beds were available.
"Those days and that day have haunted me since then and will haunt me forever. To now know that my family gave her the ice cream that killed her is almost too much to bear. I also know more about Listeria and am more aware of the pain and suffering she was going through while in the ER. We unnecessarily lost the bright light of love and positivity that was my mom. The pain and sadness are overwhelming," Richelle is quoted as saying after her mother's death.
Richard Billman incurred $89,689 in medical expenses from Memorial Regional Hospital South. He also incurred $1,220 in expenses for the cremation of Mary.
The punitive damages were sought because the Big Olaf Creamery "engaged in conduct that so reckless and wanting in care that it constituted a conscious disregard or indifference to the life, health and safety of individuals," according to Richard Billman's lawsuit.
The outbreak
Mary was one of 28 people from 11 states who developed Listeria infections. Of them, 27 required hospitalization.
Mary was the only patient to die. Seven illnesses were among pregnant people or newborns. One illness resulted in pregnancy loss, according to the federal Centers for Disease Control and Prevention.
Sick people's samples were collected from Jan. 24, 2021, to Aug. 19, 2022. Patients ranged in age from less than 1 to 92 years. Half of them were female.
Samples from sick people showed a common strain of Listeria monocytogenes. That same strain was found on equipment at the Big Olaf production facility and in its ice cream.
Big Olaf first refused to recognize that it was the cause of the outbreak and refused to stop production and stop ice cream sales.
State officials with the Florida Department of Agriculture and Consumer Services began investigating the outbreak in the spring of 2022. They performed whole genome sequencing on samples of ice cream and equipment and found the outbreak strain of Listeria.
The pathogen was found in 10 environmental. Samples from the production facility and in 16 of 17 flavors of Big Olaf ice cream. Eventually, the state shut down the operation.
On July 2, 2022, the federal CDC advised people who had Big Olaf Creamery ice cream at home to throw away any remaining product. On July 13, 2022, Big Olaf Creamery LLC recalled all flavors, lots, and expiration dates of Big Olaf brand ice cream through June 30, 2022.
The U.S. Food and Drug Administration also conducted an investigation and on Dec. 9, 2022, sent a warning letter to Big Olaf. The letter was regarding an inspection that ran from July 19 through Sept. 1, 2022.
The FDA warning letter cited voluminous violations of federal food safety laws. It also said Big Olaf's owners had sought third-party help to defend their business.
"(T)he firm contracted with a third-party laboratory to conduct environmental swabbing (redacted by FDA). Multiple pieces of equipment used to manufacture ready-to-eat ice cream products were reported positive for Listeria monocytogenes by their contract laboratory, including (redacted by FDA). Additionally, four swabs of finished product ice cream buckets (redacted by FDA) were reported positive for Listeria monocytogenes," according to the warning letter.
". . . The firm did not prepare, or have prepared, and implement a food safety plan, (as required by federal law)," according to the warning letter. During the inspection, the firm provided a draft SOP (standard operating procedure) that included various operational procedures intended to address food safety hazards associated with their manufacturing operations. It included a statement that going forward their firm will (redacted by FDA). However, this draft procedure did not fully explain how they will ensure control of hazards requiring preventive control in their ice cream products."
Seattle attorney Bill Marler, with the assistance of Florida attorney Jordan L. Chaikin, filed the civil lawsuit in federal court in Florida. They sought unspecified damages for Richard Billman for expenses and for the loss of his wife's companionship and her role as his caretaker, as well as any other damages the court deemed appropriate.
The case was based on strict liability, breach of warranty, and negligence. It claimed that the Big Olaf ice cream was sold in an adulterated state because it was contaminated with Listeria monocytogenes. It stated that the owners and operators of Big Olaf Creamery had the responsibility to sell food that was free from pathogens.
"The ice cream products reached the decedent without any change in their defective condition, and the decedent used the food products for their intended use by consuming them. That the ice cream products were contaminated by Listeria monocytogenes, a dangerous foodborne pathogen, rendered them defective in that the risks associated with consuming the ice cream products exceeded a reasonable buyer's expectations," according to the lawsuit.
"Defendant owed the decedent a duty to design, manufacture, distribute, and sell food that was not adulterated, that was fit for human consumption, that was reasonably safe in construction, and that was free of pathogenic bacteria or other substances injurious to human health. Defendants breached this duty.
". . . Defendant owed the decedent a duty to use reasonable care in the manufacture, distribution, and sale of ice cream products. Defendant's observance of this duty would have prevented or eliminated the risk that the ice cream products manufactured, distributed, and sold to customers, like the decedent, would be contaminated with dangerous bacteria like Listeria monocytogenes. The defendant breached this duty and was therefore negligent."
In arguing for punitive damages to punish the company for its behavior, the attorney wrote: ". . . the Defendant's conduct was so reckless and wanting in care that it constituted a conscious disregard or indifference to the life, health, and safety of individuals."
Managing Editor Coral Beach is a print journalist with more than 30 years experience as a reporter and editor for daily newspapers, trade publications and freelance clients including the Kansas City Star, the Independence Examiner and Land Line Magazine. Before joining Food …
Managing Editor Coral Beach is a print journalist with more than 30 years experience as a reporter and editor for daily newspapers, trade publications and freelance clients including the Kansas City Star, the Independence Examiner and Land Line Magazine. Before joining Food Safety News, Beach was a reporter for The Packer newspaper, an online and broadsheet trade publication covering the fresh produce industry in North America. During her time at The Packer, Beach specialized in food safety topics related to legislation, regulation, recalls and foodborne illness outbreaks. A Jayhawk by birth and education, Beach earned her bachelor's of science in journalism from the University of Kansas.
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Food, Drug & Agriculture, Personal Injury
Marler Clark LLP, PS
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