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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Del Monte Fresh sues America over Salmonella – Definition of Frivolous Lawsuit

Screen Shot 2011-08-24 at 4.51.46 PM.pngI must admit that I was busy today preparing another complaint in the Cargill Salmonella Heildelberg outbreak and had not had time to pick up the Del Monte vs. USA/FDA lawsuit until some time ago. Interesting read – See PDF – Del Monte vs. USA/FDA. In essence, Del Monte says the CDC and 10 States botched the epidemiology of the Salmonella Panama outbreak that was linked to Del Monte’s imported cantaloupe. In Del Monte’s own words (well, lawyer’s words):

The FDA and other officials described above investigated the illnesses and concluded that they were associated with the consumption of cantaloupes by the patients who became ill. On information and belief, these officials reached this conclusion without a sufficient factual basis to support the conclusion. Among other things, on information and belief, these officials reached this conclusion without ever testing any cantaloupes to determine whether they were contaminated with Salmonella. …

FDA has not adequately accounted for evidence indicating that the illnesses described above were not caused by cantaloupes at all. …

FDA has not adequately accounted for the possibility that any allegedly contaminated cantaloupes came from sources other than Del Monte. …

Here is the CDC’s position:

Screen Shot 2011-08-24 at 4.50.04 PM.pngCDC collaborated with public health officials in a number of states, including California, Maryland, Oregon, and Washington, and the U.S. Food and Drug Administration (FDA) to investigate and to identify the likely source of this multistate outbreak of Salmonella Panama infections. Investigators used DNA analysis of Salmonella bacteria obtained through diagnostic testing to identify cases of illness that may be part of this outbreak.

As of June 20, 2011, a total of 20 ill people infected with the outbreak strain of Salmonella Panama have been reported from Arizona (1), California (2), Colorado (1), Maryland (1), Montana (1), Nevada (1), Oregon (6), Pennsylvania (1), Utah (1) and Washington (5). Ill people range in age from less than 1 year old to 68 years old, with a median age of 13 years old. Sixty-five percent are male.

Based upon the CDC’s and 10 States’ work the FDA posted this recall notice from Del Monte:

Del Monte Fresh Produce N.A., Inc. (“Del Monte Fresh”) of Coral Gables, Florida is voluntarily recalling 4,992 cartons of cantaloupes, each containing 4 plastic mesh sleeves with 3 cantaloupes per sleeve, because they have the potential to be contaminated with Salmonella Panama, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella Panama often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella Panama can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

The cantaloupes were distributed through warehouse clubs in Alaska, California, Colorado, Idaho, Montana, Oregon, and Washington.

The recalled products consist of cartons of cantaloupes, each containing 4 plastic beige mesh sleeves each sealed with a plastic orange handle with the Del Monte Logo and indication “3 count, Product of Guatemala” with 3 cantaloupes per sleeve and were available for sale between the 10th of March and the 21st of March, 2011. The cantaloupes, grown in and shipped from Del Monte Freshs’ farm Asuncion Mita in Guatemala, have a light brown color skin on the exterior, with orange flesh. The recalled cartons of cantaloupes are dark brown cardboard with the “Del Monte” logo in red lettering and “cantaloupes” in yellow lettering on a green background. The cantaloupes have the lot codes: 02-15-24-10, 02-15-25-10, 02-15-26-10 and 02-15-28-10.

Hey, FDA – I know a good lawyer to defend you – And, I am reasonable.