When is a health history most appropriate for a jury?

Does a company’s health record factor into its potential criminal behavior when it becomes involved in a foodborne disease outbreak?

This question was disputed during the pretrial phase of United States v. Paul Cruz. Preliminary applications are due July 22 in Western Texas District Court in Austin.

Cruz, 67, is the retired president of Blue Bell ice cream, the iconic Texas brand that in 2015 was at the center of a Deadline listeriosis outbreak. As the August 1 trial date approaches to begin the federal criminal trial that will determine his guilt or innocence, Cruz’s defense attorneys have moved to exclude health issues from jury review.

The defense team, Chris Flood of House and John Klein of Seattle, moved to remove the sanitation issues from the indictment, thus preventing that information from going to the jury.

The four government prosecutors in charge of the case opposed the defense’s request. “Because the allegations regarding the sanitation issues are material and related to the defendant’s plan to defraud customers of Blue Bell Creameries, LP (Blue Bell), the application should be denied,” government attorneys say.

Tara M. Schenick, Matthew Lash, Patrick H. Hearn, and Kathryn A. Schmidt are the four attorneys assigned to represent the government. All four are from the Consumer Protection Branch of the US Department of Justice.

Cross was indicted in 2020 on one count of conspiracy and six counts of electronic fraud. He pleaded not guilty to the charges against him.

The indictment alleges a conspiracy to obtain money from Blue Bell clients through “false and fraudulent” allegations.

Government lawyers say that Cross “has known for years that appropriate practices were in place to ensure that sanitary conditions were not followed and achieved at Blue Bell manufacturing facilities, a practice that led to the outbreak on deadline.”

They say the origins of the 2015 listeriosis outbreak at two Blue Bell plants occurred “long before.” Evidence at trial will show that as early as 2010, the defendant was aware of roof leaks, condensation, and other unsanitary conditions in the Blue Bell factories, however, have been allowed to continue, prosecutors say to the court. Under his leadership, Blue Bell shipped products with levels of coliforms that he knew exceeded state standards.

“Coliform testing is commonly used in the food industry to indicate the hygienic quality of products and the sanitary conditions of manufacturing facilities,” they add. “It is understood in the food industry that high levels of coliforms indicate unsanitary conditions in the facility, which can lead to bacteria and contamination problems, including the presence of L. mono (Listeria monocytogenes).”

In keeping sanitation issues before a jury that has yet to be selected, the government says that due to high colon levels at Blue Bell facilities, the company’s quality assurance team began testing finished products for listeria in 2011.

They say the QA manager will testify at trial that Kruse ordered its closure. “Following these instructions from the defendant, two samples that had already been sent for testing came back presumably positive for Listeria.

According to the government, the defendant again ordered the program shutdown when it was told of the supposed positive tests. “Evidence at trial will show that Blue Bell shipped those supposedly positive products to customers without regard for their safety.”

The defense argued that discussing health issues was “excess” on the indictment. The prosecution cites judicial sources that say such a request must be “strict and rigorous” and is rarely granted.

Prosecutors say that “the court should not accept the defendant’s motion to multiply the excess as harmful unless it is clear that the information is not relevant and is harmful.”

They add, “If the prosecution’s evidence is admissible and relevant to the indictment, then despite bias, the language will not be omitted.”

Croese resides in Brenham, Texas, the headquarters of Blue Bell, and her long association with his family.

He issued, in 2015, the first recall in the company’s century-long history and halted all production for several weeks. In outbreaks in four states, there were three deaths out of 10 diseases. All 10 patients were hospitalized.

A federal grand jury indicted Cross in 2020 after a five-year investigation.

The Austin-based Western Federal District Court in Texas has stated that it “considers the United States v. Cruz case as a complex criminal case.”

As a legal entity, Blue Bell pleaded guilty in a related case in 2020 to two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act.

The company agreed to pay criminal penalties totaling $17.5 million and $2.1 million to resolve False Claims Act allegations related to ice cream products manufactured under unsanitary conditions and sold to federal facilities, including the military. The total of $19.35 million in fines, forfeitures and civil settlement payments was the second largest ever to solve a food safety problem.

Cross is the only person facing criminal charges over the 2015 outbreak.

Blue Bell Creameries was founded in 1907 in Brenham, Texas, and today produces Blue Bell ice cream for national distribution.

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