As part of a campaign to keep their clients from serving any prison time, appellate attorneys for Austin (“Jack”) and Peter DeCoster are depicting the roles the former egg producers played in the 2010 Salmonella Enteritidis outbreak as marked by corporate responsibility and cooperation. The picture being painted stands in sharp contrast with the media coverage Jack DeCoster got in 2010 during the outbreak and the largest shell egg recall in U.S. history and even more recently in his home state of Maine. In new court documents, the DeCoster attorneys assert that the doctrine imposing individual criminal liability based solely on someone’s corporate position are inconsistent with fundamental principles of criminal liability and therefore cannot be the basis for depriving someone of their liberty. In an 80-page brief just filed with the U.S. Court of Appeals for the Eighth Circuit in St. Louis, a profile for Quality Egg LLC in Iowa in 2010 depicts about 5 million egg-laying hens in 97 structures spanning 3 million square feet of floor space. Quality Egg, owned by Jack DeCoster, with Peter DeCoster serving as chief operating officer, was one of the nation’s top shell egg producers. The company also cleaned, packaged, and stored eggs. Led by prominent Washington D.C.-based appellant attorney Peter D. Keisler of Sidley Austin LLP, the lawyers describe Jack and Peter DeCoster as moving along in an orderly process in 2010 to implement the U.S. Food and Drug Administration’s new Egg Safety Rule when they were overtaken by events. “The Egg Safety Rule is the first and only Federal rule that addresses the induction of SE (Salmonella Enteritidis) in the egg during production. It was published in July 2009, and took effect for large-scale producers like Quality Egg on July 9, 2010,” states the appellate brief. The Egg Safety Rule, the attorneys state, imposed several new industry mandates, such as having a written SE prevention plan with preventive measures including biosecurity and pest control for flies and rodents. Control of rodents and flies were industry-wide problems, along with mice and rats. The Egg Safety Rule also required cleaning poultry houses any time environmental or egg tests came back with positives for SE. The appellate brief states that the DeCosters understood the “cornerstone” for the Egg Safety Rule were the specific standards for SE testing. It set up a two-part protocol with positive environmental SE tests resulting in a decision to divert eggs away from the table egg market. Processed eggs go through a “kill step” and are then used in other products. Otherwise, an additional 4,000 eggs, in 4 sets of 1,000, must be tested to see if the remaining offs are safe to consume. Keisler, who was acting Attorney General of the United States for about three months during the Bush administration, quotes the Egg Safety Rule as saying that if 4 sets of 1,000 eggs are negative for SE, more testing is not required. FDA figured there was a 95-percent probability of accurately detecting SE by using the procedure. Then the flock can be returned to producing table eggs. Quality Egg brought on two academic experts to assist the company with the Egg Safety Rule. It focused on cleaning between flock changes and pest and rodent control. “By the summer of 2010, Quality Egg had substantially reduced the number of pests in the pullet barns below the levels required by the the Egg Safety Rule,” according to the appellate brief. At the time, according to the DeCoster lawyers, FDA found there was “insufficient data on the efficacy of vaccines,” but they were still encouraged as an additional SE prevention measure. “Unlike most other egg producers, Quality Egg administered multiple vaccines for protections against SE and other poultry diseases and conducted additional tests to ensure the vaccinations were administered correctly,” the brief notes. Quality Egg began testing for SE in 2004 and employed Iowa State University in 2009. “Thousands of environmental tests were performed between 2004 and 2010. Most of these test returned negative, and until early 2010 the level of positive test results remained within a range normal for the industry.” the DeCoster lawyers state. In response to the 2010 increase, Quality Egg claims to have increased its environmental tests, doing more cleaning and stepping up the vaccines. On the advice of its experts, Quality Egg increased testing and added a second vaccine. Still, FDA linked it to the SE outbreak during the week of Aug. 9, 2010. “Quality Egg took a number of stops to address the outbreak,” the appellate brief states. “First, at FDA’s recommendation, every bird suspected of being infected with SE was euthanized …. Second, Quality Egg stopped shipping eggs from August through November 2010 and cleaned, fumigated, and disinfected all its barns and facilities. Third, Quality Egg continued environmental SE testing.” The DeCoster lawyers also note that FDA conducted an investigation in August 2010 and issued an inspection report in September 2010, “in which the inspectors expressed their ‘appreciation for the firm’s cooperation and professionalism.’” While numerous conditions FDA inspectors found at the Quality Egg facilities were lacking — biosecurity measures and pest control, for instance — they did note that FDA’s “guidance for industry” covering the Egg Safety Rule only became available after the start of that August 2010 inspection. Almost four years later, in May 2014, charges were brought against Quality Egg for felony bribery of a USDA official, felony misbranding of eggs with intent to defraud or mislead, and misdemeanor introduction of adulterated shell eggs into interstate commerce. The LLC (Limited Liability Corporation) pleaded guilty to all three charges and paid a $6.8-million fine and $83,000 in criminal restitution. The corporation did not appeal the convictions. Jack and Peter DeCoster were each charged as a “responsible corporate officer” with one count of misdemeanor introduction of adulterated shell eggs into interstate commerce. In an agreement with the government, they entered guilty pleas based on stipulated facts. Those included the agreement that the DeCosters controlled Quality Egg operations in Iowa, that it introduced eggs into interstate commerce that were adulterated, and that no Quality Egg personnel had prior knowledge that eggs were contaminated with SE. The DeCosters each paid a $100,000 fine, were jointly responsible for criminal restitution, and were both sentenced to a three-month federal prison term, which are all suspended until the appeal runs its course. Keisler is also requesting that the Eight Circuit hear oral arguments before deciding the appeal. The U.S. Department of Justice now has until Sept. 18, 2015, to file an answering brief to the appellants’ one. The appellants’ reply brief is then due Oct. 9, 2015. The Eighth Circuit has yet to schedule any oral arguments. According to the U.S. Centers for Disease Control and Prevention (CDC), approximately 1,939 people were sickened in the May 1-Nov. 1, 2010, SE outbreak linked to DeCoster eggs.
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