On the morning of Tuesday, Jan. 11, the trial at the Howell County Court House began in order to determine whether 50,000 pounds of cheese produced at Morningland Dairy LLC, a local raw milk cheese manufacturer located in the Ozarks between Mountain View and Willow Springs, MO, will be destroyed despite no reports of illness.  

The saga began in June when some of the farm’s cheeses were seized in an armed raid at Rawesome Foods, a health food store in California. On Nov. 2, 2010, Food Safety News reported, “With guns drawn, federal, state and local authorities entered the Venice raw food club and seized cartons of raw milk and packages of unpasteurized goat cheese.”

Coincidentally, the raid occurred at a time when FDA had begun to take a harder look at producers using raw milk in their cheese production. Recently, FDA initiated a program to test the buildings and equipment used in cheesemaking for Listeria. 

Since April 2010, FDA has sent inspectors to more than 100 cheesemaking facilities, including both large and small cheesemakers. During those inspections, Listeria was found in the production facilities of 24 cheesemakers, more than half of which were considered to be small, artisan-scale operations. 

After performing tests on the Morningland Dairy cheeses that had been distributed to the California retailer, officials from the California Department of Food and Agriculture announced that some of the samples contained trace amounts of Listeria monocytogenes and Staphylococcus aureus. Missouri state officials were notified of the contamination found in the company’s products. 

The seizure at Rawesome Foods and subsequent test results prompted Morningland Dairy to issue a nationwide voluntary recall of 68,957 pounds of raw milk cheese in late August. Nine varieties of raw cow milk cheese and seven varieties of raw goat milk cheese under the company’s Morningland Dairy and Ozark Hills Farm labels were subject to the recall. 

The company had previously sold its raw milk cheeses in 48 states serving 330 personal customers as well as more than 100 health food stores. The products were distributed in retail stores, by mail order, through direct delivery and through crop-sharing associations.

After Morningland Dairy conducted the recall, 14 samples of Morningland Dairy’s cheese were sent to a St. Louis laboratory to be tested. Missouri Attorney General Chris Koster and Missouri’s State Milk Board reported that all 14 samples tested positive for Staphylococcus aureus and 6 of the samples tested positive for lLsteria monocytogenes.

On Oct. 1, Missouri’s State Milk Board condemned all the company’s cheese products manufactured between Jan. 1 and Aug. 26 and ordered them destroyed; however, Morningland Dairy objected to the destruction, disputing the allegations that their cheeses were contaminated. The company refused to obey the Board’s order because it would result in the loss of eight months of work, as well as approximately $250,000. 

In response to Morningland’s refusal to destroy its cheese products, Attorney General Koster sought a court order enforcing the state’s destruction notice, which has resulted in the current litigation in Howell County. 

The Howell County News later reported that Morningland Dairy submitted a counterclaim requesting “more than $80,000 in damages for cheese that has spoiled while quarantined in a cooler at the farm since August, as well as for the expenses of the recall.”

Judge David Dunlap, currently presiding over the Morningland bench trial, heard testimony on Jan. 11 from several witnesses for the state, including Gene Wiseman, executive secretary of the Missouri State Milk Board, Don Falls, an environmental specialist with Missouri State Milk Board and inspector of Morningland Dairy plant, and Sara Blamey, senior microbiologist and laboratory manager for Microbe Inotech Laboratories in St. Louis.

During her examination, Blamey testified that she had conducted tests on samples of cheese sent by Morningland at the end of August. She informed the court and confirmed her previous report that all of the 14 samples tested were positive for Staphylococcus aureus and 6 were positive for Listeria monocytogenes. 

In addition, the state presented testimony from its expert on microbiology and food safety, Dr. Joseph Franks. He discussed the various sources for contamination of the Morningland cheeses and concluded that “the most likely place was at the animal level.”

Listeria is commonly found in abundance on farms, where it can grow in the soil, plant matter, water and manure. Accordingly, cheesemakers who work on farms must take extra precautions to ensure that their product does not become contaminated. 

Moreover, Franks added that tests of milk in the dairy’s equipment might not show evidence of Listeria contamination because it is present below a detection level. However, he explained that the cheesemaking process can cause the bacteria to become concentrated by 10 times that amount.

After the state rested its case, the defense called Denise Dixon, general manager of the  Morningland Dairy cheese plant, to the stand. She testified that neither she nor her husband were present when cheese samples were collected and sent to Microbe Inotech Laboratories, suggesting that the samples may have been mishandled. 

Dixon also stated that an FDA recall notice was sent out to various media outlets without the company’s authorization. “We were strong-armed by the state and FDA,” she said. 

Dixon urged the court to consider that in 30 years of business, there have been no reports of illness associated with consumption of Morningland Dairy cheese. 

The defense also presented testimony from Jedadiah York, Morningland’s plant manager, who described the cheesemaking process and attested to the fact that the dairy’s equipment was sanitized before and after use each day.  He added, “Everything we do is held responsible to God. His Word, the Bible, tells us how we’re supposed to act. We feel like we’re personally responsible for our product and what we do.”

Although York asserted that Morningland’s cheeses were always aged for the requisite 60 day period, during the state’s cross examination, York admitted that he occasionally failed to record dates of when certain batches of cheese had been cut. York’s statement was of great significance because raw milk cheeses must, by law, undergo an aging process of at least 60 days before being sold. The company’s record-keeping could prove to be damaging to its case.

Finally, the court heard from Timothy Wightman, a dairy expert with the Farm to Consumer Legal Defense Fund, and Dr. Theodore F. Beals, a pathologist who has devoted his time since retirement to studying food science and dairy food safety.

Specifically, Wightman opined that Morningland Dairy followed proper procedures for dairy safety. He also discussed the somatic cell count (SCC) of milk, which serves as one indication of the milk’s quality. SCC is a measurement of the amount of white blood cells in milk. Typically somatic cells, or white blood cells, will increase in number if exposed to pathogenic bacteria. Therefore, a high SCC can b
e a sign of mastitis, or a bacterial infection in the particular animal. 

Wightman testified that the SCC expected for Grade A milk is a count of under 750,000. However, in rebuttal to Wightman’s testimony, the state introduced the results of a particular test of Morningland’s products performed on Aug. 25, 2010 showing a SCC of 1.7 million. Other test results displayed SCCs ranging from 160,000 to 830,000.

After hearing testimony from both sides, Judge Dunlap scheduled closing statements and post-trial arguments to be submitted in writing by Jan. 28.