Keith denies responsibility for botulism

"It's not our fault," said Keith attorney Jennifer Aufricht of the Dallas firm of Thompson & Coe, insisting that the contaminated chili cannot be traced to her client, one of the region's biggest suppliers to the catering industry. "They are trying to make this look sinister."

At issue is whether a $24 case of frozen chili was reshipped from Keith's Fort Worth warehouse after being rejected by a Dallas restaurant in August 2001. Aufricht acknowledges "innocent mistakes" in handling the product return but noted that Keith has no record of selling that particular case to Town Talk supermarket, where purchasers of tainted chili say they shopped.

Seven people who contracted botulism, along with First Original Texas Chili Co., the chili's manufacturer, and Town Talk, are suing Keith in the trial's first phase.

Like Keith, the two other companies are based in Fort Worth and family owned. But with about $1 billion in sales, the century-old Keith easily dwarfs them. And the two smaller businesses said they suffered greatly from publicity surrounding the botulism outbreak.

Ten people were hospitalized, including two children who spent weeks in a coma and several adults who were on life support. One required a feeding tube for more than a year.

Aside from yet-to-be- disclosed damages, one of the plaintiffs' attorneys, Carl Mallory, said his side is seeking millions in lawyers' fees from Keith and its insurers.

Judge Bob McGrath of the 342nd State District Court informed 12 jurors and three alternates that the trial could last through the winter and possibly until "the spring flowers bloom."

A slew of Keith company memos — including one suggesting that a manager, Robby Austin, bragged about misleading federal investigators — was not released to the plaintiffs until shortly before the trial was originally scheduled to start in the spring of 2005.

A second date was postponed after Keith asked the 2nd Court of Appeals to have business defamation claims by Texas Chili spun off into a separate case.

The second phase of the current trial will hear claims from those who contracted botulism who settled with Keith before finding out about the belatedly released files, known variously as the "secret memos" and the "Carla Oliver memos."

Carla Sue Oliver was responsible for Keith's inventory control at the time of the investigation. She kept diarylike entries on how the company dealt with state and federal investigators.

On Monday, plaintiffs' attorneys asserted that the poisoning at a church supper and at two houses stemmed from a single case of four 5-pound tubs of frozen chili rejected by Norma's Cafe in Dallas, coded "unacceptable" by the Keith warehouse on its return, then recoded "damaged in warehouse" and sold to Town Talk.

No other chili from the same production run was found to have been tainted, they said. R. Wayne Gordon, Town Talk's attorney, insisted that there were no temperature problems at the supermarket.

Aufricht said that reclassifying the returned chili as "damaged in warehouse" was necessary to remove the items from inventory, that Oliver's memos were composed of "hearsay" and that there is no clear evidence that the tainted chili was ever shipped from Keith's $2 million warehouse with state-of-the-art controls.

The only culprit, Aufricht said, was Town Talk, which sold a variety of frozen chili brands and had a history of buying from a Keith rival products deemed unfit for human consumption.

Although the chili tubs were sold from freezer chests, investigators determined that Town Talk mishandled other frozen food by setting it on the store's floor during the summer, she said.

The fact that Keith charged Norma's and Texas Chili for retrieving the rejected chili was an innocent oversight, not a conspiracy, she said.

Aufricht warned jurors against accepting the plaintiffs' "mob mentality" that Keith was "conniving, deceitful," noting that the attorney for Keith who failed to turn over Oliver's memos is "no longer here.

"The notes came out," she said. "There's been a change of the guard."

In closing her remarks, Aufricht noted that some of the plaintiffs had been adversaries five years ago but are now aligned against Keith in the high-dollar case.