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.