Keith was urged to boost safety

Ten of the 15 people stricken in the nation's worst botulism outbreak since 1994 are suing Keith, alleging that it mishandled frozen chili that had been resold to Town Talk Food, a discount supermarket, after a Dallas restaurant rejected it. Town Talk and the manufacturer, First Original Texas Chili Co., both of Fort Worth, have joined the civil suit against Keith in the 342nd state District Court.

Keith disputes any link between the chili it sold and the tainted tubs that sickened people at a church supper in Sanger and two homes elsewhere in North Texas.

But Spelce quoted Carla Sue Oliver, a close friend and co-worker involved in Keith's in-house investigation, as telling him that the tainted chili indeed originated with the century-old company.

Spelce said he understood from Oliver that Norma's Cafe in Dallas had thawed a tub of chili, found it smelled bad, and sent an entire carton of four tubs back to Keith, which resold it to Town Talk. The supermarket acknowledges selling the chili but said it was not told by Keith that it had been thawed and returned.

Oliver, Keith's inventory-control manager, has taken the Fifth Amendment because of the risk of litigation, said Keith's attorney, Jennifer Aufricht.

During cross-examination, Spelce conceded that he was unaware of numerous findings after September 2001 and therefore did not have a clearer picture of the botulism outbreak beyond what he had been told by Oliver. Spelce was in New Mexico as Keith's industrial engineer at the time of the outbreak and is now the company's director of food safety and security.

Earlier, Spelce said he crafted his safety recommendation to appeal to Keith's bottom-line mentality.

"Far too many returns were coming back to Ben E. Keith, and they were an unnecessary drain on the economics of the company," he testified, referring to the cost of transporting, sorting, examining and determining the final disposition of items rejected by customers.

Asked by a plaintiff's attorney why he didn't stress food safety, he replied: "When you start talking about dollars and cents, you get a better ear."

But a food-reclamation company processing returns for Keith said restaurants wanted more than two options suggested by Spelce -- destroying the product or having the manufacturer arrange pickup.

Spelce agreed that the 2001 botulism outbreak could have been avoided if his proposal had been taken up early in 2001, instead of on Sept. 11 of that year.

Tuesday's testimony began with Sam Jones Jr., one of the botulism victims, detailing his long hospitalization while in a coma, followed by a stay in a rehabilitation facility and a year with a feeding tube in his stomach. Jones still has headaches, has trouble sleeping because of a tube that had been in his throat, and can no longer take side jobs pouring concrete or laying bricks, he said.

The case is made all the more puzzling by the absence of Carla Oliver, who kept a running diary of events related to the botulism outbreak and subsequent state and federal probes, and by testimony from a string of Keith executives who professed to know little about the in-house investigation.

In a videotaped deposition shown in court Tuesday, Fort Worth branch manager Doug Swick repeatedly replied, "I don't know," when asked by plaintiff's attorney Wayne Gordon how he would handle returned items that smelled and what happened with the returned chili from Norma's Cafe.

At one point, Swick was asked why he pleaded ignorance.

"I'd have to look at the product and investigate," Swick replied.

So, Gordon asked, if a product was frozen, thawed and refrozen, is there an option other than putting it back into inventory?