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Damages award for controlled atmosphere storage failure

Yakima, WA, US: Fruit company, Borton & Sons has successfully sued Novazone Inc over damages from its Purfresh product used in controlled atmosphere storage.

Borton & Sons won US$770,000 in a federal lawsuit against the California-based chemicals company when a jury found that Purfresh was responsible for deep exterior damage to more than 2,500 bins of apples stored during the 2004-05-crop year.

The verdict has caught the attention of fruit companies because many use Purfresh. “There are other growers who have identified problems, but none that have been able to link it the way we have,” said James Elliott, an attorney with Velikanje Halverson, which represented Borton.

The verdict may provide other growers with the opportunity to recover losses from Novazone in a similar fashion, he said.

Borton was testing the product; an ozone treatment that Novazone said would prevent rot and decay on the apples. Instead, Borton claimed the treatment caused a condition known as lenticel, an airy collection of cells on the surface, leaving the apples with big black and brown spots on the exterior, though the interior was not damaged.

Gala apples suffered the most damage. Fuji, Golden Delicious, Braeburn and Red Rome apples were also affected. Borton sent the apples, deemed unsuitable for wholesale, to a processor at a lower price. The company said it also lost money because it had to repack apples to make sure none of the damaged fruit was included.

The lawsuit was filed against Novazone in January 2008. The jury determined that total damages were about $1m, but reduced the amount by $238,000 after agreeing that Borton failed to take steps to offset some of the damage.

A final judgment has not yet been filed because there is still a possibility of reimbursement of attorneys’ fees, said Elliott. Once the final judgment is filed, Novazone has 30 days to appeal.