Thawed meat often restocked, court told

Jerry Martinez, who worked as a returns associate from 1999 to 2002, said he could clearly cite details of only one instance, when a truck with a broken refrigeration unit brought back once-frozen hot dogs to the company's far south Fort Worth warehouse from Texas Motor Speedway on the far north side of the city.

"The boxes were not cold," Martinez testified. He said his boss, inventory control manager Carla Sue Oliver, told him to put the hot dogs with items to be restocked, not on the "bad" pallet of goods to be sold to salvage dealers or destroyed. "She looked it over and said it was OK," he said.

Under cross-examination by Keith's attorney, Jennifer Aufricht, Martinez made clear that he had no firsthand knowledge about whether any returned items, once refrozen, were sold for human consumption.

But Martinez's testimony about restocking thawed meat could not be shaken.

"It was common practice," he said. "Everybody did it."

Ten of 15 people sickened with botulism in August 2001 are suing Ben E. Keith for allegedly reselling frozen chili to Town Talk, a Fort Worth discount supermarket, after it had been thawed, refrozen and rejected by a Dallas restaurant. Town Talk and First Original Texas Chili Co., the product's maker, also are suing Keith, saying the large regional distributor's actions severely hurt their businesses. All three companies are family owned and based in Fort Worth.

Keith maintains there is no proof that the chili in question caused life-threatening botulism, asserting that Town Talk had a history of mishandling frozen food and that it sold several brands of frozen chili.

E-mail messages from Keith Pittman, Keith's vice president of operations, entered Monday as evidence, appear to acknowledge the company's responsibility for the worst botulism outbreak since 1994.

"We are deep in a lawsuit with Town Talk Foods in FTW over the chili issue where they [Town Talk] sold our salvaged chili to some folks and they got sick. KP," reads one electronic message, dated Oct. 11, 2002, from Pittman to a San Antonio executive.

When questioned by attorneys on both sides, Pittman stressed repeatedly that he was only quoting allegations against Keith that he gleaned by reading the Star-Telegram.

However, a search of the paper's news archives shows the first mention of Ben E. Keith Foods in connection with the botulism poisoning did not appear until more than a year later, Nov. 3, 2003.

Ben E. Keith Co., controlled by the Hallam brothers of Dallas, recorded sales in excess of $2 billion in fiscal 2006, which ended June 30.

Of that, $1.5 billion was contributed by the food-service business and the remaining $500 million by its Anheuser-Busch beer-distribution arm, Pittman said.

Prefacing a question by saying that Town Talk's and Texas Chili's respective businesses had been severely hurt, a plaintiffs attorney asked the amount of Keith's revenue growth since the poisoning.

Pittman put sales growth at an annual average rate of 15 percent since 2001.

Pittman acknowledged that a tougher policy on rejecting perishables returned by customers did not arise from post-9-11 food-security concerns, but from concerns over the chili botulism case.

Officials announced the policy on the very day of the World Trade Center attack, which, Pittman agreed, would have precluded any related government recommendations.

The vice president said he did not know details of warehouse return procedures but said return associates were given two weeks of training in food safety unless they could prove prior experience.

Martinez said he received no food-safety training until he left Ben E. Keith and became an employee at Tom Thumb Foods, a regional supermarket unit of Safeway Inc.