IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DEBORA L. SMITH, in her )

capacity as PERSONAL )

REPRESENTATIVE OF THE )

ESTATE OF DONALD DECHOW, )

)

Plaintiff, )

)

) NO. 3:13-cv-832

VS. )

)

FRONTERA PRODUCE, LTD, )

et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Primus Group Inc.’s Motion

to Dismiss Plaintiff’s Complaint and Brief in Support (DE# 10),

filed on September 17, 2013. For the reasons set forth below, this

motion is DENIED.

BACKGROUND

Plaintiff, Debora L. Smith, brought suit against Defendants

for the wrongful death of her father, Donald Dechow. Smith alleges

her father contracted Listeria monocytogenes as a result of eating

cantaloupe that was produced by Jensen Farms. Smith alleges

Defendant Primus Group (“Primus”) is liable in this case because

Primus was in control of, and negligent in, auditing Jensen Farms

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growing and packing facility shortly before the Listeria

monocytogenes outbreak. Primus has filed the instant motion to

dismiss, arguing that Smith has not adequately pleaded a negligence

claim against it.1

DISCUSSION

Facts

The following facts are based on the allegations contained in

the complaint, which this Court must take as true at this stage in

the litigation. Plaintiff, Deborah Smith, is the daughter of

Donald Dechow, deceased, and she is also the court-appointed

personal representative of the Estate of Donald Dechow. (Cmplt ¶

1). Defendant, Primus Group, Inc. d/b/a “Primus Labs” (“Primus”)

was a company that provided auditing services for businesses

involved in the manufacture and sale of food products. (Cmplt ¶

4). Primus retained the services of subcontractors for some of its

auditing, including the audit of Jensen Farms, the manufacturer,

distributor and seller of the cantaloupe at issue in this case. 

(Cmplt ¶ 4).

On September 2, 2011, the Colorado Department of Public Health

1

The motion also sought dismissal of what Primus characterized as a loss

of consortium claim. (DE# 10, p. 21). However, in her response, Plaintiff

clarified that she was not making a loss of consortium claim, but was instead

seeking damages for loss of companionship under Ind. Code section 34-23-1-2. 

Primus did not reply to Plaintiff’s clarification. So this Court assumes

there is no dispute at this time regarding the viability of Plaintiff seeking

damages for loss of companionship.

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and Environment (“CDPHE”) began investigating an outbreak of

Listeriosis infections in Colorado. (Cmplt ¶ 8). CDPHE announced

that the source of the outbreak was contaminated cantaloupes grown

by Jensen Farms. (Cmplt ¶ 11). The Food and Drug Administration

(“FDA”) conducted an on-site investigation of the Jensen Farms

facility and collected a total of nine positive samples of Listeria

monocytogenes from various locations throughout the facility. 

(Cmplt ¶ 13).

Prior to the listeria outbreak, Jensen Farms or Frontera,

contracted with Primus to conduct an audit of Jensen Farms’

facilities, including their growing areas and packing house. 

(Cmplt ¶ 14). Primus entered into an agreement to ensure that the

facilities, premises and procedures used by Jensen Farms in the

production of cantaloupes met or exceeded applicable standards of

care. (Cmplt ¶ 15). It was the intent of these contracting

parties to ensure that the food products Jensen Farms produced, and

that Frontera distributed, would be of high quality for consumers,

and would not be contaminated by potentially lethal pathogens, such

as Listeria monocytogenes. (Cmplt ¶ 16). Frontera represented to

the public and retail sellers that its cantaloupes were “Primus

Certified,” to induce retailers to buy their cantaloupes and induce

the public to purchase their cantaloupes. (Cmplt ¶¶ 17, 18).

Primus selected and hired Bio Food Safety, Inc. to conduct the

audit of Jensen Farms. (Cmplt ¶ 19). Primus and Bio Food Safety

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held themselves out as experts in the field of food safety. (Cmplt

¶ 20). By auditing companies involved in the production and

distribution of food products, Primus and Bio Food Safety intended

to aid these companies in ensuring that the food produced was of

high quality, fit for human consumption, and not contaminated by

any potentially dangerous pathogens. (Cmplt ¶ 21). Bio Food

Safety auditor James Dilorio conducted an audit at Jensen Farms’

ranchlands and packing facility around July 25, 2011, approximately

one week before the CDC identified the first victim of the

cantaloupe Listeria outbreak had consumed the contaminated

cantaloupe. (Cmplt ¶ 22). Mr. Dilorio gave the Jensen Farms

packing house a “superior” rating, and a score of 96%. (Cmplt ¶

22).

After learning of the source of the nationwide cantaloupe

outbreak, and positive environmental test for Listeria

monocytogenes from the FDA, an environmental assessment was ordered

for Jensen Farms. (Cmplt ¶ 24). Findings from this assessment,

which were memorialized in the FDA’s October 19, 2011, report,

included many deficiencies at Jensen Farms. (Cmplt ¶ 24). FDA

officials cited multiple failures at Jensen Farms which “reflected

a general lack of awareness of food safety principles.” (Cmplt ¶

25).

Mr. Dilorio’s prior audit found many aspects of Jensen Farms’

facility, equipment and procedures- that the FDA heavily

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criticized- to be in “total compliance.” (Cmplt ¶ 26). Many of

the substandard conditions and practices cited by the FDA should

have caused Jensen Farms to receive a score that would have caused

its packing house to fail Dilorio’s audit. (Cmplt ¶ 28). Mr.

Dilorio misrepresented the conditions and practices at Jensen

Farms’ packing house by giving it a “superior” rating and a score

of 96%, despite the existence of conditions and practices that

should have caused him to fail the facility. (Cmplt ¶ 29). Mr.

Dilorio made other misrepresentations, including statements about

the suitability of equipment in place at the packing house for the

processing of cantaloupes - all of which were relied on by Jensen

Farms as justification for continuing to use the conditions,

practices or equipment for its processing of cantaloupes. (Cmplt

¶ 29).

At the time of the July 25, 2011, audit, Jensen Farms should

not have passed, and should not have been approved for the

manufacture and sale of cantaloupe. (Cmplt ¶ 30). The cantaloupe

that caused Mr. Dechow’s Listeriosis death would have not been

distributed by Jensen Farms and Frontera in the dangerous condition

they were if Jensen Farms had not passed the audit. (Cmplt ¶ 30).

Plaintiff has brought a negligence claim against Primus2

,

alleging Mr. Dilorio was negligent in performing the July 25, 2011,

2

The complaint alleges Bio Food Safety was an agent of Primus for

purposes of Mr. Dilorio’s audit of Jensen Farms on July 25, 2011. Thus,

Plaintiff brings suit against Primus.

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audit.

Standard of Review

In ruling on a motion to dismiss brought pursuant to Federal

Rule of Civil Procedure 12(b)(6), the court must draw all

reasonable inferences that favor the plaintiff, construe the

allegations of the complaint in the light most favorable to the

plaintiff, and accept as true all well-pleaded facts and

allegations in the complaint. Thompson v. Ill. Dep't of Prof'l

Regulation, 300 F.3d 750, 753 (7th Cir. 2002). In order to

withstand a motion to dismiss, a complaint must allege the

“operative facts” upon which each claim is based. Kyle v. Morton

High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998). A plaintiff is

required to include allegations in the complaint that “plausibly

suggest that the plaintiff has a right to relief, raising that

possibility above a 'speculative level'” and “if they do not, the

plaintiff pleads itself out of court.” E.E.O.C. v. Concentra

Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in

part Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007)). “Factual

allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in

the complaint are true (even if doubtful in fact).” Bell Atl.

Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)(quotation marks,

ellipsis, citations, and footnote omitted).

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While, for most types of cases, the Federal

rules eliminated the cumbersome requirement

that a claimant set out in detail the facts

upon which he based his claim, Rule 8(a)(2)

still requires a “showing,” rather than a

blanket assertion, of entitlement to relief. 

Without some factual allegations in the

complaint, it is hard to see how a claimant

could satisfy the requirement of providing to

only “fair notice” of the nature of the claim,

but also “grounds” on which the claim rests.

Id. at n. 3 (citation omitted).

The complaint states a claim for negligence.

To state a claim for negligence, a complaint must contain

allegations sufficient to establish: “(1) a duty owed to the

plaintiff by the defendant; (2) a breach of that duty by the

defendant; and (3) injury to the plaintiff proximately caused by

that breach.” M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 243

(Ind. Ct. App. 2014)(citation omitted). Primus argues that the

complaint fails to allege that Primus had any duty toward the

decedent; the complaint fails to establish a breach of any duty;

and, the complaint does not support any causation between the audit

and the decedent’s injuries. Each of these arguments will be

addressed in turn.

The complaint alleges Primus had a duty towards the decedent.

Primus argues that it owed no duty towards the decedent

because Primus was not in privity with the decedent. In so

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arguing, Primus acknowledges that Indiana is silent on the exact

issue here. Nevertheless, Primus relies on Justice Cardozo’s oftcited opinion in Ultramares, which discussed the rationale behind

the privity rule, a rule that held privity was required to impose

a legal duty. Ultramares Corp. v. Touche, 174 N.E.2d 441, 444

(N.Y. 1931). Plaintiff admits this is no privity here. However,

that is not the end of the inquiry. While privity was historically

required to impose a legal duty, the law has evolved and in Indiana

“it is well-established that privity is not always required.” Webb

v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).

One such bypass to the strict privity rule is assumption of

duty. Hermann v. Frey, 537 N.E.2d 529, 531 n.3 (Ind. Ct. App.

1989). A duty of care may arise where one party assumes such a

duty. Yost v. Wabash Coll., 3N.E.3d 509 (Ind. 2014). The

assumption of duty creates a special relationship between the

parties and a corresponding duty to act in the manner of a

reasonably prudent person. Id. Plaintiff claims Primus assumed a

duty towards the decedent based on the application of Section 324A

of the Restatement (Second) of Torts. Section 324A parallels

Indiana’s doctrine of assumed duty. Ward v. First Indiana Plaza

joint Venture, 725 N.E.2d 134, 136 (Ind. Ct. App. 2000). Section

324A provides:

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person or his

things, is subject to liability to the third person for

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physical harm resulting from his failure to exercise

reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases

the risk of such harm, or

(b) he has undertaken to perform a duty owed by the

other to the third person, or

(c) the harm is suffered because of the reliance of the

other or the third person upon the undertaking.

Id.

“The assumption of such a duty creates a special relationship

between the parties and a corresponding duty to act in the manner

of a reasonably prudent person.” Medtronic, Inc. v. Malander, 996

N.E.2d 412, 420 (Ind. Ct. App. 2013)(quoting Plain-Tec, Inc. v.

Wiggins, 443 N.E.2d 1212, 1219 (Ind. Ct. App. 1983)). “The

existence and extent of such a duty are ordinarily questions for

the trier of fact.” Id. (quoting Merrill v. Knauf Fiber Glass

Glass GmbH, 771 N.E.2d 1258, 1270 (Ind. Ct. App. 2002). But, if

the record contains insufficient evidence to establish such a duty,

the court can decide the issue as a matter of law. Id.

Neither party has directed this Court’s attention to an

Indiana case with similar facts to those before it. However, upon

review of Section 324A of the Restatement (Second) of Torts in

conjunction with the allegations of the complaint, this Court finds

these allegations are sufficient to plead that Primus assumed a

duty to Donald Dechow, a consumer injured by contaminated

cantaloupes produced by Jensen Farms. Indeed, the complaint

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alleges Primus undertook an audit of Jensen Farms’ facilities to

ensure that the facilities, premises and procedures used by Jensen

Farms in the production of cantaloupes met or exceeded applicable

standards of care. The purpose of this contract was to ensure that

the food products Jensen Farms produced, and that Frontera

distributed, would be of high quality for consumers, and would not

be contaminated. The public and retail sellers were informed that

the cantaloupes were “Primus Certified,” to induce retailers to buy

their cantaloupes and induce the public to purchase their

cantaloupes. Primus held itself out as an expert in the field of

food safety and, by auditing Jensen Farms, Primus intended to aid

Jensen Farms in ensuring that the food produced was of high

quality, fit for human consumption, and not contaminated by any

potentially dangerous pathogens. Despite this, Primus failed to

conduct the audit using reasonable care, which resulted in Donald

Dechow consuming Jensen Farms cantaloupe, becoming sick with

Listeria monocytogenes and ultimately dying from this illness.

This conclusion should come as little surprise. The parties

admit that parallel litigation is pending against Primus in

numerous courts throughout the country based on the July 2011

outbreak of Listeriosis allegedly tied to contaminated cantaloupe

from Jensen Farms. Plaintiff has pointed out that a clear majority

of the courts that have applied section 324A of the Restatement of

Torts (Second), have denied Primus’ identical motions to dismiss

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filed throughout the country. (DE# 48, Ex. A, p. 9, n.2)(citing

Underwood v. Jensen Farms, 6:11-CV-348 (E.D. Okla. March 10, 2014);

Braddock v. Primus, 8:13-CV-258 (D. Neb. February 5, 2014);

Robertson v. Frontera Produce, CIV-11-1321 (W.D. Okla. January 24,

2014)).

Primus argues that this Court should follow the United States

District Court for the District of Wyoming’s decision in Corsi,

which found that Primus owed no duty of care to the plaintiff.

Corsi v. Jensen Farm, No. 2:12-CV-52 (D. Wyo. Oct. 11, 2013). 

Notably absent from that order, however, was any mention of Section

324A. Since the court in Corsi did not examine Section 324A - the

basis this Court used to find an assumed duty based on the

allegations - there is little value in Corsi’s conclusion finding

that Primus did not owe the plaintiff a duty. 

When determining whether a duty is present, the court is

mindful that public policy must be addressed. Webb v. Jarvis, 575

N.E.2d 992, 995 (Ind. 1991). Primus argues that public policy

weighs against finding a duty because “the allegations set forth in

the Complaint do not remotely support that Primus undertook a duty

to the decedent or to the public in general.” (DE# 10, p. 16). 

However, this Court has found that Primus did assume this duty. 

And, because of these allegations, public policy would not weigh

against imposing one at this stage.

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Complaint adequately alleges Primus breached its duty.

Primus argues that, even if a duty to the decedent has been

alleged, the complaint fails to allege any facts constituting a

breach of that duty. Primus takes issue with the fact that the

complaint does not specifically state what Dilorio was required to

inspect during the audit, does not establish the reasonable

standard of care of a third party auditor conducting a packinghouse

audit, and fails to conclude that Dilorio’s purported failure to

identify certain conditions and practices fell below that standard

of care. However, Primus fails to cite to any rule of law that

requires a complaint to contain such specifics surrounding the

standard of care.

“Federal courts focus on the pleading of claims, not the

pleading of facts.” Hutchinson v. Spink, 126 F.3d 895, 900 (7th

Cir. 1997). Thus, while it is true that the complaint does not

plead the auditor’s required standard of care or the specifics

surrounding how that standard was allegedly not complied with, the

complaint is not required to contain that information. Eads v.

Community Hosp., 932 N.E.2d 1239, 1245 (Ind. 2010)(in Indiana,

while a standard of care may ultimately have to be proven, it is

not necessarily a pleading requirement). Plaintiff may be required

to ultimately establish the requisite standard of care and provide

evidence that it was not complied with, but that is an inquiry left

for another day. What is important here is whether Plaintiff has

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plead a breach under the liberal notice pleading requirements. 

Dausch v. Ryske, 52 F.3d 1425, 1430 (7th Cir. 1994)(“Thus, although

the complainant must show that she is entitled to relief, she need

not set out in detail the facts upon which her claim is

based.”)(citation omitted). 

In reviewing the allegations of the complaint, it is clear

that Primus undertook the responsibility to “ensure that the

facilities, premises and procedures used by Jensen Farms in the

production of cantaloupes met or exceeded applicable standards of

care related to the production of cantaloupe, including, but no

limited to, good agricultural and manufacturing practices, industry

standards, and relevant FDA industry guidance.” (Cmpt. ¶ 15). 

Furthermore, Primus was an expert in the field of food safety. 

(Cmpt. ¶ 20). Despite this, Primus’ auditor “failed to observe, or

properly demerit or consider, multiple conditions or practices that

were in violation of Primus’s audit standards applicable to

cantaloupe packing houses, industry standards, and applicable FDA

industry guidance.” (Cmpt. ¶ 23). These allegations are

sufficient to plead a breach of duty.

The complaint sufficiently alleges causation.

Primus also argues that the complaint fails to properly allege

the element of causation. Causation, both actual and proximate, is

an essential element of a negligence claim and the burden of proof

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which Plaintiff carries. Daub v. Daub, 629 N.E.2d 873, 877 (Ind.

Ct. App. 1994). “Proximate cause involves two inquiries: (1)

whether the injury would not have occurred but for the defendant’s

negligence; and (2) whether the plaintiff’s injury was reasonably

foreseeable as the natural and probable consequence of the act or

omission.” Laycock v. Sliwkowski, 12 N.E.3d 986, 991 (Ind. Ct.

App. 2014). Generally, proximate cause is a question of fact for

the jury. Adams Twp. of Hamilton County v. Strudevant, 570 N.E.2d

87, 90 (Ind. Ct. App. 1991). However, when “only a single

conclusion can be drawn, it is a question of law to be determined

by the court. Id.

The complaint alleges that the July 25, 2011, audit should

have not passed Jensen Farms and that Jensen Farms should not have

been approved to manufacture or sell cantaloupe. And, “[t]he

cantaloupe that caused Mr. Dechow’s Listeriosis death would not

have been distributed by Jensen Farms and Frontera in the dangerous

condition they were in if Jensen Farms had not passed the audit.” 

(Cmpt. ¶ 30). This is sufficient to meet the “but for” prong of

the proximate cause analysis. 

Regarding the foreseeability prong, Primus argues that the

complaint fails to allege how its actions created a foreseeable

danger for a Listeria outbreak or how it could have foreseen such

a result from the audit. The proper inquiry here is “whether the

person actually harmed was a foreseeable victim and whether the

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type actually inflicted was reasonably foreseeable.” Webb, 575

N.E.2d at 997. This “does not mean that the precise hazard or

exact consequences should have been foreseen, but neither does it

encompass anything which might occur.” M.S.D. of Martinsville v.

Jackson, 9 N.E.3d 230, 244 (Ind. Ct. App. 2014)(citation omitted). 

This determination is based on the totality of the circumstances,

and is ordinarily a question of fact for the jury to decide. 

Kroger Co. v. Plonski, 930 N.E.2d 1, 7 (Ind. 2010).

According to the complaint, Primus conducted the audit to

ensure the cantaloupes “would be of high quality for consumers, and

would not be contaminated by potentially lethal pathogens such as

Listeria monocytogenes. (Cmplt ¶ 16). The complaint further

alleges the decedent was a consumer who ate cantaloupe contaminated

with Listeria monocytogenes - cantaloupe that would not have been

distributed but for the negligent audit. Based on these

allegations, this Court finds that the type of harm and the person

harmed in this case could both be categorized as foreseeable

consequences of a negligent audit of Jensen Farms.

CONCLUSION

For the reasons set forth above, this motion is DENIED.

DATED: September 11, 2014 /s/RUDY LOZANO, Judge

United States District Court

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