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Settlement is reached in botulism case

February 1, 2007

Settlement is reached in botulism case

By BARRY SHLACHTER

STAR-TELEGRAM STAFF WRITER

Terms of the settlement were not disclosed.

The case continues Thursday, with three people; Town Talk Foods, which sold the chili; and First Original Texas Chili, the manufacturer, remaining as plaintiffs against Keith, the chili's distributor.

One of the remaining three victims is Robert Hicks. The other two settled earlier with Keith before allegations surfaced that the Fort Worth company withheld key evidence.One's attorney, Lori Watson, said her client, John Johnson of Sanger, settled with Keith for $315,000 but now is seeking an additional $315,000.

Before the trial, people close to the case said the seven plaintiffs, including members of the Jones family from Sanger, were seeking more than $4 million. Town Talk and Texas Chili paid more than $2 million to the botulism victims several years ago.

"I think everyone is pleased," Louis Sturns, one of the plaintiff's attorneys, said.

He declined to elaborate, citing a confidentiality clause in the settlement. Gwinda Burns, the attorney first engaged by the Joneses and who remains active in the case, was not present at the chambers of State District Judge Bob McGrath and could not be reached for comment.

Jim Carroll, a New Orleans-based attorney for Keith, confirmed that an agreement had been reached with most of the individual plaintiffs.

Earlier, Keith attorney Jennifer Aufricht said any settlement with some of the plaintiffs would indicate a willingness by her client to avoid some of the heavy expense of defending the case and would be no admission of wrongdoing.

It's not clear how the settlement will affect a plaintiffs' motion seeking $1 million from Keith for failing to disclose all employees who knew how a case of frozen chili was handled after being rejected by a Dallas cafe.

The latest in a series of sanction motions, it was filed Friday after attorneys for the Joneses, Sturns and Charles Noteboom discovered the identity of the clerk who changed the chili's coding from "quality unacceptable" to "damaged in warehouse."

Asked for comment, Aufricht said Ben E. Keith proved its good faith in 2005 after learning not all evidence had been released by replacing its old law firm and then engaging a separate one to seek needed material.

Keith, she said, "spent considerable labor, time and money producing more than it was ever legally obligated to do," she said, adding: "They are doing discovery during trial."

The plaintiffs have alleged Keith failed to destroy the chili after a restaurant returned it because it smelled bad. Keith then turned around and resold it to Town Talk, the plaintiffs allege, and didn't inform Town Talk that the restaurant had rejected it or that one tub had been thawed and refrozen.

Keith has vigorously denied any link between a carton of Texas Chili returned from Norma's Cafe in Dallas and the various frozen tubs of chili that caused the botulism outbreak at a church supper in Sanger and at two homes. In her opening statement and during the questioning of witnesses, Aufricht stressed that hospital reports and depositions from some relatives indicate that chili brands other than those distributed by Keith — but sold by Town Talk — were involved.

During his second day of testimony, Keith employee Larry Spelce said that, during a previous job he held at Town Talk, he saw no food-safety violations at the store, which sells mainly liquidated, overstock and damaged-in-warehouse goods.

Spelce added that Keith and Town Talk have sold products that had been returned from commercial customers but that it would be a "sin" to waste food.

The most curious testimony so far came from a former Keith returns associate named Mario Tillman, who said he had once been asked to stow a deer's head in a warehouse food freezer. It had been shot on a ranch owned by the Hallam family, which controls Keith, Tillman said.

Afterward, Tillman told a reporter that the buck's head was still bloody but its torso was wrapped in plastic when he placed it about five feet away from cartons of frozen food.

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