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Publisher’s Platform: Frivolous Shakedown

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

I have a knack for being subtle.

As 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 10 state health departments, the U.S. Food and Drug Administration and Centers for Disease Control and Prevention linked to 20 Salmonella Panama illnesses

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 their product and the health of their 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 of foodborne illness there is no product to test – because consumers ate it before they became ill, or the particular product, like cantaloupe, was perishable and so the contaminated fruit is long gone. Also, not all cantaloupes in a given field or lot may be 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 but 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, just 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 suchofficer, 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 should be fired.

© Food Safety News
  • Bill,
    Please give us cites, and website links, to each of the laws you quoted.
    And, please provide us with cite(s), and website links to each cite, in both the U.S. and Oregon constitutions granting those governments immunity from lawsuits to redress a tort.
    As well demonstrated during the civil rights movement in the ‘50s and ‘60’s, American governments have a long record of writing laws and taking actions that exceed the powers that we, the people, have granted to them.
    Dole has taken an action that is fraught with huge risk. I am very interested in seeing if it can back up its claims. If not, Dole will pay a VERY high price.

  • Jim Schmidt

    http://www.oregonlaws.org/ors/30.260
    There where the Oregon one starts off at. Just Google Federal Tort Immunity. Should get you close to the Fed one.

  • Its Del Monte Fresh
    Here is the statute:
    OREGON REVISED STATUTES
    *** THIS DATA IS CURRENT THROUGH THE 2009 LEGISLATIVE SESSION ***
    *** ANNOTATIONS CURRENT THROUGH JUNE 29, 2011 ***
    TITLE 3 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS
    Chapter 30 – Actions and Suits in Particular Cases
    TORT ACTIONS AGAINST PUBLIC BODIES
    (Generally)
    GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY
    ORS § 30.265 (2009)
    Legislative Alert:
    LEXSEE 2011 Ore. ALS 270 — See section 1.
    30.265 Scope of liability of public body, officers, employees and agents; liability in nuclear incident.
    (1) Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598. 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 under ORS 30.285 or 30.287 shall be an action against the public body only. The remedy provided by ORS 30.260 to 30.300 is exclusive of any other action or suit against any such officer, employee or agent of a public body whose act or omission within the scope of the officer’s, employee’s or agent’s employment or duties gives rise to the action or suit. No other form of civil action or suit shall be permitted. If an action or suit is filed against an officer, employee or agent of a public body, on appropriate motion the public body shall be substituted as the only defendant. Substitution of the public body as the defendant does not exempt the public body from making any report required under ORS 742.400.
    (2) 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.
    (3) Every public body and its officers, employees and agents acting within the scope of their employment or duties, or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598, are immune from liability for:
    (a) Any claim for injury to or death of any person covered by any workers’ compensation law.
    (b) Any claim in connection with the assessment and collection of taxes.
    (c) 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.
    (d) Any claim that is limited or barred by the provisions of any other statute, including but not limited to any statute of ultimate repose.
    (e) Any claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing.
    (f) Any claim arising out of an act done or omitted under apparent authority of a law, resolution, rule or regulation that is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, resolution, rule or regulation been constitutional, valid and applicable, unless such act was done or omitted in bad faith or with malice.
    (4) Subsection (1) of this section applies to any action of any officer, employee or agent of the state relating to a nuclear incident, whether or not the officer, employee or agent is acting within the scope of employment, and provided the nuclear incident is covered by an insurance or indemnity agreement under 42 U.S.C. 2210.
    (5) Subsection (3)(c) of this section does not apply to any discretionary act that is found to be the cause or partial cause of a nuclear incident covered by an insurance or indemnity agreement under the provisions of 42 U.S.C. 2210, including but not limited to road design and route selection.
    History:
    1967 c.627 §§ 2,3,10; 1969 c.429 § 1; 1975 c.609 § 12; 1977 c.823 § 2; 1981 c.490 § 4; 1985 c.731 § 31; 1987 c.705 § 7; 1991 c.861 § 1; 2005 c.22 § 19; 2007 c.803 § 4

  • Bill,
    Please give us cites, and website links, to each of the laws you quoted.
    And, please provide us with cite(s), and website links to each cite, in both the U.S. and Oregon constitutions granting those governments immunity from lawsuits to redress a tort.
    As well demonstrated during the civil rights movement in the ‘50s and ‘60’s, American governments have a long record of writing laws and taking actions that exceed the powers that we, the people, have granted to them.
    Dole has taken an action that is fraught with huge risk. I am very interested in seeing if it can back up its claims. If not, Dole will pay a VERY high price.

  • hhamil

    Some of my mistakes are rather obvious, as the use of “Dole” instead of “Fresh Del Monte Produce, Inc.” was. I apologize to “Dole” for my error.
    Thanks, Bill, for pointing it out. I realized what I had done just seconds after uploading it. Unfortunately, for me, your system doesn’t allow for editing after uploading.
    Thanks also for providing entire statute and to Jim Schmidt of the website link.
    Now, we, readers, can more easily consider whether or not Bill’s analysis coincides with our own.

  • Harry Hamil

    Some of my mistakes are rather obvious, as the use of “Dole” instead of “Fresh Del Monte Produce, Inc.” was. I apologize to “Dole” for my error.
    Thanks, Bill, for pointing it out. I realized what I had done just seconds after uploading it. Unfortunately, for me, your system doesn’t allow for editing after uploading.
    Thanks also for providing entire statute and to Jim Schmidt of the website link.
    Now, we, readers, can more easily consider whether or not Bill’s analysis coincides with our own.