Jury trial begins in fraud and conspiracy trial involving Blue Blue, an iconic Texas brand

AUSTIN — The timeline played the starring role during the opening arguments at the jury trial of the United States v Paul Kruse.

 Department of Justice attorney Matthew Lash for the prosecution and Houston defense attorney Chris Flood opened the trial. Taken together, they suggested that a food company, during an investigation, can fully cooperate with FDA and state agencies but still face conspiracy and fraud charges if it does not respond with thorough responses to public inquiries that may occur.

Lash and Flood each spoke for about 30 minutes, directing their remarks at the newly impaneled West Texas jury, which includes four alternates among the 12 men and four women.

“This case is about profit, profit before people,” Lash said, just shortly after Judge Robert Pitman said: “The Trial will now begin.”

Lash said defendant Paul Kruse, grandson of the founder of the iconic Texas ice cream brand Blue Bell, was motivated only by money during a 2015 listeriosis outbreak crisis.

Kruse, while dispatching his company’s 1,000 sales-delivery trucks to pick up the “Country Cookie” and “Great Divide Bar” products that South Carolina tested for Listeria, was practicing deception, according to Lash.

Neither the drivers or inquiring customers were told about the Listeria during the early stages of the outbreak. Most were told about a mechanical problem and the need for testing.

The government’s charges cover about 60 days from February to April 2015. The period precedes Blue Bell’s recall of all its products and shutdown of its production facilities in Texas, Oklahoma, and Alabama.

Lash explained the government’s conspiracy and fraud charges Kruse is facing. “Paul Kruse did not have to send out these emails himself,” Lash said,

Flood countered by saying: “Hindsight is always 2020.” Flood said none of Kruse’s decisions harmed anyone. Within four and one-half hours of their first knowing about the problem, Blue Bell fully disclosed it on FDA’s Reportable Food Registry, he said.

Flood said the government is “cherry-picking” its evidence and warned jurors about how past sanitation issues might be played. He said the truth is Blue Bell has a long history of passing state, FDA, and independent audits.

Blue Bell, founded in 1907, did not have a recall until the 2015 crisis. “It begs the question, why are we here,” Flood asked the jury. 

With the trial’s opening, the court disclosed two pre-trial agreements reached as pre-trial “stipulations.” 

 “These stipulations have been agreed upon to narrow the issues in this trial and to facilitate judicial economy, but both parties reserve the right to call witnesses to explain or testify concerning any of the materials referenced in this Stipulation Agreement.” The most extended agreement is about testing. In part, it says:

“On or about January 29, 2015, the South Carolina Department of Health and Environmental Control (“South Carolina”) collected ten Blue Bell Creameries products, three of which were manufactured on the Gram machine at the company’s Brenham facility. On or about February 12, 2015, South Carolina testing showed the presence of Listeria monocytogenes in two of the products manufactured on the Gram machine: the Blue Bell Creameries “Country Cookie” and “Great Divide Bar.” Almond Bars, manufactured on the Gram machine, and seven additional products tested negative for Listeria monocytogenesThe non-Gram machine Blue Bell Creameries products that tested negative were: Cookies N’Cream Country Cone, Mini Party Cone, Sundae Cup, Lowfat Strawberry Yogurt Cup, Mocha Almond Fudge, Pecan Pralines N’Cream, and Krunch Vanilla I.C. Bar. As reported, the test results do not specify the quantity of Listeria monocytogenes in the products. The parties do not dispute the accuracy of the test results. 

“On or about February 17, 2015, South Carolina completed testing of additional samples of Blue Bell Creameries’ “Country Cookie” and “Great Divide Bar.” The test results showed the presence of Listeria monocytogenes in the samples of both products. As reported, the test results do not specify the quantity of Listeria monocytogenes in the products. The parties do not dispute the accuracy of the test results.

On or about February 25, 2015, the Texas Department of State Health Services completed testing on various Blue Bell Creameries products manufactured at Blue Bell’s Brenham facility, which were collected on February 17, 2015. The test results showed the presence of Listeria monocytogenes in the following Blue Bell Creameries Gram machine products: “Country Cookie,” “Great Divide Bar,” and “Scoops.” The test results showed no Listeria monocytogenes in these other Gram machine products: Almond Bars, Green Apple Sour Pops, Vanilla Slices, and Cotton Candy Bars. The test results also showed no Listeria monocytogenes in these non-Gram machine items: Mooo Bars, Mix 4000, Mix 5000, Homemade Vanilla, and All American Cups. As reported, the test results do not specify the quantity of Listeria monocytogenes in the products. The parties do not dispute the accuracy of the test results. 

“On or about March 6, 2015, the Centers for Disease Control and Prevention (“CDC”) completed testing analyses on samples taken from certain patients at Via Christi Hospital and samples of the Blue Bell Creameries Scoops product. The testing analyses showed the presence of matching strains of Listeria monocytogenes in certain patient samples and the Blue Bell Creameries Scoops product. The parties do not dispute the accuracy of the testing analysis results. 

“Between January 2014 and January 2015, five patients admitted to Via Christi Hospital for cancer and other illnesses became sickened with listeriosis during their hospital stay. Listeriosis is the illness a person may contract after consuming food containing Listeria monocytogenesThe CDC’s analyses of the strain of Listeria monocytogenes in four of the five patients matched the strain of the Listeria monocytogenes found in Blue Bell Creameries Scoops ice cream product. Four of the five patients were confirmed to have eaten Blue Bell Creameries Scoops during their hospital stay. CDC scientists concluded that eating the Blue Bell Creameries Scoops product caused four of the five patients to become sickened with listeriosis. After examining the relevant medical records, a qualified medical professional determined that listeriosis contributed to the deaths of two of those patients. 

“On or about March 22, 2015, the Kansas Department of Health and Environment completed testing on Blue Bell Creameries products removed from Via Christi Hospital in Wichita, Kansas. The testing showed the presence of Listeria monocytogenes in a sample of a Blue Bell Creameries three-ounce Chocolate Tab Lid Cup ice cream product. As reported, the test results do not specify the quantity of Listeria monocytogenes in the product. The parties do not dispute the accuracy of the test result. 

On or about March 30, 2015, a third-party laboratory contracted by Blue Bell Creameries completed testing on a sample of the Blue Bell Creameries Rainbow Sherbet quart product that had not left Blue Bell distribution facilities. The test showed the presence of Listeria monocytogenes in a Blue Bell Creameries Rainbow Sherbet quart sample. As reported, the test results do not specify the quantity of Listeria monocytogenes in the product. The parties do not dispute the accuracy of the test results.

“On or about April 6, 2015, the FDA completed testing on the Blue Bell Creameries Banana Pudding ice cream product. The testing showed the presence of Listeria monocytogenes in a Blue Bell Creameries Banana Pudding ice cream product sample. As reported, the test results do not specify the quantity of Listeria monocytogenes in the product. The parties do not dispute the accuracy of the test results.

Notwithstanding these stipulations, the parties reserve the right to object to the admissibility of the foregoing test results.

The shorter stipulation makes the Court’s jurisdiction clear by accepting that all “emails sent or received from an email address with the domain name bluebell.com traveled through an email server located in the Western District of Texas.”

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