Header graphic for print
Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Del Monte Fresh’s suit against Oregon is a frivolous shakedown

I have a knack for being subtle.

Screen Shot 2011-09-01 at 4.42.23 PM.pngAs reported by the AP, Del Monte Fresh (you will love the background music) has threatened to sue Oregon Public Health and its senior epidemiologist, William Keene, for playing a part in gathering evidence against the company’s cantaloupes that ten state health departments, the FDA and CDC linked 20 Salmonella Panama illnesses to.  According to AP:

“Responsible government agencies must be careful to protect public confidence and not inflame public fears by making statements about the safety of a particular food product or producer without sufficient evidence or without conducting a reliable investigation,” said Dennis Christou, a vice president at Del Monte (Fresh).

I think Mr. Christou and his lawyers should spend a bit more time thinking about the quality of the product and the health of consumers.  But, back to Del Monte’s swing at Oregon and Dr. Keene.  I have seen the records from the states, FDA and CDC, and the epidemiology is rock solid.  Plus, to put this on Oregon alone is silly.  Remember, according to the CDC, 20 ill people infected with the outbreak strain of Salmonella Panama were reported from Arizona (1), California (2), Colorado (1), Maryland (1), Montana (1), Nevada (1), Oregon (6), Pennsylvania (1), Utah (1) and Washington (5).  That means that not only Oregon, but also nine other state epidemiologists, and the CDC and the FDA, pointed at Del Monte Fresh imported cantaloupes as the likely source of the illnesses.  Should we expect more lawsuits?

True, Del Monte Fresh cantaloupe did not test positive for Salmonella Panama, but remember, in most outbreaks there is no product to test – because consumers eat it to become ill, or a product, like cantaloupe, is perishable and the contaminated fruit is long gone.  Also, not all cantaloupes in a given field or lot are contaminated.  So, small outbreaks like this one are common.  And, it is not like we have not had a few cantaloupe outbreaks in the past – See Outbreak Database.

So, Del Monte Fresh does not have the facts on its side, so what about the law?  Under Oregon law (and the law of most states and the federal government):

The sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification … shall be an action against the public body only.

That means any threat against an individual public employee is simply BS (that is a legal term).  In addition, in case Del Monte Fresh missed it:

Every public body is immune from liability for any claim for injury to or death of any person or injury to property resulting from an act or omission of an officer, employee or agent of a public body when such officer, employee or agent is immune from liability. … [And, e]very public body and its officers, employees and agents acting within the scope of their employment or duties, … are immune from liability for: … Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

Del Monte Fresh has the facts against it and the law against it.  Del Monte Fresh has no legal basis for attacking public servants doing their job of protecting the public.  Del Monte Fresh, you should be ashamed and your lawyers fired.

  • Public Health Worker

    This lawsuit is a surprise since following the 2006 spinach crisis, the produce industry showed more leadership and proactive effort in food safety than any other industry faced with a food safety problem in recent times. Del Monte’s food safety team should be doing everything possible to learn from the outbreak findings, implement measures to protect their consumers, and support research to fill knowledge gaps about preventing Salmonella contamination of cantaloupe .

  • Art Davis

    With both the facts and the law against them one wonders what the Del Monte and their legal team legal team is trying to accomplish? It would seem unlikely that a large corporation such as Del Monte would have a totally incompetent legal team capable of understanding neither the facts nor the law.
    Your best guess Bill…what are they up to and why?

  • Minkpuppy

    And folx wonder why FSIS inspectors are afraid to stick their necks out? This crap is exactly why–and lets not forget fear of retaliation for whistle blowing to boot.

  • Best guess is that they simply do not understand the science.

  • Art Davis

    Possible I guess but strikes me as VERY unlikely. Perhaps some support from Guatemala?

  • Public Health Worker

    I think Bill’s guess about not understanding the science could be at least partially correct. Food companies tend to employee or consult with skilled food safety/quality experts that have strong backgrounds in food science and/or microbiology, but weak or no background in epidemiology and biostatistics.

  • Art Davis

    Ten, or even five, years ago I think the “Epidemiology ignorance” argument might have held for some or perhaps many food science folks. In the current environment however anyone claiming food science / food safety expertise without knowledge of basic epidemiology and at least the fundamental statistical systems involved is, in my opinion, engaged in false advertising. The idea that a company such as Del Monte would take on a lawsuit that will, in all likelihood, largely turn on facts related to epidemiology without having or retaining significant expertise in the area seems a bit far fetched to me. I suspect that Del Monte either thinks they have found a flaw in the FDA / Oregon data or conclusions or they have decided, perhaps with the support (This is my conspiracy theory) of some entity in Guatemala,or perhaps elsewhere, to make life sufficiently unpleasant for the FDA / Oregon consortium that they become less aggressive in the future. Either way, or with some other reason for starting the process, I think this will be a most interesting case to follow as much for “Why” as for the result.