AUSTIN — When the Texas Department of State Health Services (DSHS) first learned South Carolina found Listeria in two Blue Bell ice cream products, it suggested the company prepare a recall notice.

But in testimony on the fourth day of the jury trial for former Blue Bell president Paul Kruse, a DSHS official over dairy for half of Texas said the department went along with a more prolonged inquiry by Blue Bell, and it was shortly joined by the U.S. Food and Drug Administration (FDA).

In charge of conspiracy and five fraud counts, Justice Department attorneys are trying to use Kruse’s hesitancy to issue a press release about the Listeria contamination to make their case.

Harris Hollingwood, DSHS’s dairy manager for west Texas, was over the east in 2015 when Blue Bell confronted a deadly listeriosis outbreak that killed three and sickened at least 10. Upon its first contact after the Feb. 13 notice from South Carolina, Hollingwood said: “Texas asked Blue Bell for a voluntary recall.”

“We felt there was a product out there that could still be in commerce,” he said.

Hollingwood acknowledged that DSHS was drawn into the investigation, and that Blue Bell’s outbreak press releases did not go out until March 13, March 23 and finally April 20.

The March 13 recall notice involved the two ice cream products discovered by South Carolina. The March 23 recall noticed, updated on March 26, was for 3-ounce cups with chocolate, strawberry, and vanilla ice cream produced at its Broken Arrow, OK, production facility. Blue Bell recalled all its products on April 20; simultaneously, it closed all its production facilities.

Before its actions, DSHS did not issue any health warning or statement of its own, Hollingwood said.

During the time between Feb.13 and March 13, Blue Bell seems to have sold regulators on Kruse’s plan to have the single serve ice cream products withdrawn from the market by having the company’s roughly 1,500 driver-salesmen pick them up. 

The current Blue Bell president and CEO, Richard S. “Ricky” Dickson, remained on the witness stand for a second day Thursday. He said that 2.3 million ice cream products were retrieved by the drivers, with about 300 known to be missing. Defense attorney Chris Flood said that translated into a 99.99 percent efficiency rate.

Because of a break in the prosecution’s witness schedule, Judge Robert Pitman told the jury he hoped to adjourn the trial until Monday, giving them Friday off. Jury trials in Pittman’s court begin at 8:30 a.m. and continue until 3:30 p.m. with two 20-minute breaks but no lunch.

It means the first week of the trial is likely over until Monday.  

The prosecution and the defense brought in additional talent just before the jury trial began. 

Flood of Houston and John D. Cline of Seattle brought in David W. Overhuls of Houston. Overhuls brings extensive experience as a state prosecutor in the Houston area.

The Department of Justice’s team of Kathryn A. Schmidt, Matthew Joseph Lash, Patrick Hearn, and Tara M. Shinnick, was joined by Anthony J. Nardozzi.

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