November 19, 2019

Lawyer Discusses Filing Blue Bell Ice Cream Listeria Lawsuit

Food Poisoning Bulletin talked to attorney Ryan Osterholm about the Blue Bell ice cream Listeria monocytogenes outbreak and filing lawsuits. The CDC states that people have been sickened by Blue Bell products as far back as 2010.

Chocolate Chip Cookie Dough Ice Cream FPBWe asked Mr. Osterholm how this is possible. He said, “Listeriosis is a reportable illness. The Listeria bacteria is genetically fingerprinted in specialized labs known as ‘PulseNet.’  If no genetic matches to other patients are found, no outbreak is announced. When this current outbreak was suspected, officials looked at the records and found genetic matches in PulseNet that added six cases, from 2010 to 2014, to the outbreak total. Thus, some of these patients were diagnosed with listeriosis five years ago, but the connection to Blue Bell ice cream wasn’t made at that time.”


We asked if the company has been testing their product for Listeria monocytogenes. Mr. Osterholm said, “Blue Bell has been testing, and tests for Listeria were likely in their sanitation plans, known as a HACCP plan, to identity critical points in production where the ice cream could be contaminated. This outbreak is indicative of a breakdown in the HAACP plan. Blue Bell has stated they have increased their environmental testing by 800% since the outbreak was discovered, but they obviously could have been doing more.

“So Blue Bell was doing product testing and environmental testing, but they were not holding the product until the test results came back. They just released the ice cream. Now they are doing test and hold. In the past, ice cream has rarely been identified as a vehicle for Listeria until now, but all ready-to-eat foods are susceptible to this bacteria because it’s so ubiquitous in the environment.”

Mr. Osterholm told us that in environmental testing, companies may find bacteria on a wall or on a food prep surface. That area is cleaned and sanitized, but the only way to truly stop contamination is to look for the source; how the bacteria is getting into the plant in the first place.

Listeria monocytogenes is very hardy. It can grow in cold environments and can survive freezing. In most ready-to-eat foods, there is a “kill step” where the product is heated to temperatures high enough to kill bacteria, including Listeria. If the ice cream was cooked as a custard, contamination had to have occurred after the cooking step, perhaps in churning or packaging.

Mr. Osterholm also said that most facilities are divided into “raw side” and “cooked side”. Employees must take special precautions when crossing into the “cooked side” from the “raw side” because bacteria can easily be transferred into a processed product. Raw ingredients can be a source of Listeria bacteria.

Another issue is drain cleaning. Listeria monocytogenes can thrive in drains in food facilities. Most corporations clean drains by blasting everything out of the drain; that aerosolizes bacteria and they can settle on just about every surface.

Blue Bell Ice cream is sold in 23 states in grocery stores and convenience stores. It is also sold to food service accounts, which provide food to hospitals. We don’t know if the product was also sold to schools in those states.

There are at least four different strains of Listeria monocytogenes in this outbreak. The strains found in the two affected plants in Brenham, Texas and Broken Arrow, Oklahoma are different. Patients have been sickened by products made in both of those plants.

Mr. Osterholm believes this outbreak will most likely grow. He said, “if someone is concerned about this outbreak and believes they may be affected, see their doctor and tell her about the problem. Make sure you mention Blue Bell ice cream and the outbreak. A Listeria diagnosis is done with a blood test. Don’t worry about overreacting. It’s better to be tested and be reassured than to get sicker and have more problems. In Listeria outbreaks from 2009 – 2011, there is a 93% hospitalization rate and 21% death rate. This is a serious illness.”

Pregnant women, especially, need to be careful. If you are pregnant and ate this ice cream, tell your doctor, even if you don’t feel ill. He may want to put you on a prophylactic treatment to prevent the illness. Antibiotics are administered intravenously over the course of several days in that treatment.

The infective dose of Listeria is about 1,000 cells. That sounds like a lot, but a cluster of 1,000 bacteria could easily fit on the head of a pin. Listeria bacteria are only 0.4 micrometers long and 0.2 micrometers wide. Think about a cup of ice cream; it’s very difficult to find that cluster of Listeria in that food when you’re testing product.

We asked Mr. Osterholm what people need to file a lawsuit. He said, “Proof of product exposure is nice, but don’t focus on that point. A receipt is best, but a photo of the container, or testimony of a friend or relative will also work. Shopper’s cards are an excellent way of tracking purchases. If you have purchased a product that is recalled, the store will inform you through the card. A blood test must also be positive for Listeria, and the bacteria must match the DNA fingerprint of the outbreak strain. Listeria is a reportable illness, so if you are diagnosed, the doctor will send information on to the state or local health department.  Then government labs will analyze the bacteria to discover its fingerprint through pulsed field-gel electrophoresis.”

Some states have a short statute of limitation on filing lawsuits, but there may be a “discovery rule”, which means the statute doesn’t start to run until you discover the cause of your illness. “If you have a way of showing you ate Blue Bell ice cream and have been sick, contact us,” Mr. Osterholm said. “Don’t assume that the statute of limitations has run out.”

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