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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Last week Del Monte sued the FDA, now its Oregon, and it is still Frivolous

As Merriam Webster say:

1 a : of little weight or importance

b : having no sound basis (as in fact or law) <a frivolous lawsuit>

2 a : lacking in seriousness

According to a Del Monte press release, Del Monte has notified the State of Oregon it intends to sue it over the recall, which it says was based on a “clear error of judgment.” The notice follows a related federal lawsuit Del Monte filed against the federal Food and Drug Administration (FDA) last week in Maryland. Del Monte says that Dr. William Keene, Oregon State Senior Epidemiologist played a large role in the recall. Del Monte says its cantaloupes were not to blame and that Dr. Keene acted hastily and without sufficient evidence in pushing for a recall.

“Dr. Keene and the OHA conducted an apparently cursory investigation of the illnesses and concluded that they were associated with the consumption of cantaloupes by the patients who became ill,” reads an Aug. 26 tort claim filed with the Oregon Department of Administrative Services. “Dr. Keene reached this conclusion without ever testing any cantaloupes to determine whether they were contaminated with salmonella.”

“Despite the lack of evidence for their claims concerning Del Monte Fresh’s imported cantaloupes, the Public Health Division and Dr. Keene pushed the FDA to order a recall.”

Screen Shot 2011-08-29 at 7.07.17 PM.pngDel Monte has an interesting spin on the actual facts. Arizona, California, Colorado, Montana, Nevada, Pennsylvania, Utah, Washington, and Maryland Health Departments, along with the CDC and FDA, came to the same conclusion as Dr. Keene and Oregon – Del Monte was the source of the Canteloupe that sickened 20 people.

According to the CDC, 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. Among those ill, three have been hospitalized and no deaths have been reported. There have been no new case reports since April 22, 2011.

On March 22, 2011, Del Monte Fresh Produce N.A., Inc. voluntarily recalled 4,992 cartons of cantaloupes, because they have the potential to be contaminated with Salmonella Panama. 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 mesh sleeves with 3 cantaloupes per sleeve that were available for sale between March 10 and March 21, 2011. The cantaloupes, grown in and shipped from Del Monte Fresh’s 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. No illness has been linked to cantaloupes from other sources.

Hey, Oregon, in addition to suing Del Monte for putting one of my client in the hospital, I would be honored to defend Oregon – go Ducks and Beavers.

  • Sam

    Were the illnesses linked by PFGE to the recalled melons? This article is short on details…

  • http://www.marlerclark.com/wmarler.htm Bill Marler

    Sam, I updated numbers from other States. No product tested positive.

  • Paul Nunes

    Bill Marler- Acting Attorney General for the State of Oregon. It has a nice ring to it…