When the mafia makes threats, it doesn’t pretend that what it is doing is legal. Del Monte Fresh Produce, however, apparently likes to pretend that the law is on its side when it engages in thuggery.
For those of you who haven’t heard, Del Monte has sued the FDA after the FDA determined that Del Monte cantaloupes, which are imported from Guatemala, were contaminated with salmonella, and ordered that cantaloupes from Guatemala no longer be imported, at least temporarily. (Speaking of the mafia, wasn’t there a famous mafioso named Sal Monella?) Del Monte agreed to a voluntary recall of the product
Del Monte, apparently not satisfied with trying to reverse the official government action, has also threatened to sue an Oregon state epidemiologist for its role in investigating the salmonella outbreak.
The suit against the FDA
In its suit against the FDA (complaint), Del Monte claims that the FDA had insufficient evidence to conclude that cantaloupes, or cantaloupes from Guatemala, were the source of the illnesses. It claims that the FDA never tested any cantaloupes, and in fact had recently inspected the farm in Guatemala and had not found any salmonella there. Among its other claims were that one infected patient denied having eaten cantaloupes, that the retailer who sold the cantaloupes had also sold non-Del Monte cantaloupes, and that contamination may have occurred at the retailer.
Del Monte’s legal claims were that the FDA acted outside of its legal authority, and that it acted based on “rules” that were internal policies that had not been properly subjected to the required public notice and comment period.
I don’t have a problem with the suit against the FDA, which is a request for a court order declaring the FDA’s order illegal, voiding it, and preventing the FDA from enforcing it. It is perfectly appropriate for a company to seek review by a court of an administrative agency’s judgment and factual findings. Indeed, Congress has created an entire procedure for review of most government actions, although Del Monte did not use that procedure in this case (I’m not sure why, although it may be that legally that procedure is unavailable to Del Monte in this case).
The threat against Oregon officials
Del Monte has also threatened to sue Oregon officials, including its public health department and an individual epidemiologist in that department. Although the newspapers describe Del Monte as having made a “threat,” it appears to me that the document was probably a formal notice of a possible lawsuit. In most, if not all, states, before you can sue the government or a government official, you have to give the government or official notice–often very quickly, like in a matter of a few months–that you are going to do so. Many times, even after a notice is served, no suit is filed. We don’t know whether Del Monte will end up suing.
From all reports, it appears that Del Monte is asking for monetary compensation from Oregon for its actions. It’s not clear exactly what action Oregon took, other than investigating for the FDA and maybe reporting its findings to the FDA.
I don’t necessarily have a problem with the notice, because many times people serve these notices just to preserve rights and to give themselves some time to think about whether to sue.
If Del Monte decides to sue, I will have a huge problem with it. Scientists who are protecting public health need to be able to do their work without the specter of a lawsuit hanging over their heads. It’s unlikely that an individual who gets sick will sue an epidemiologist for missing some contamination, and the epidemiologists will therefore be subconsciously biased in favor of food suppliers, who have the resources to sue.
Even if Del Monte is not successful, just putting the epidemiologists through the emotional turmoil of a lawsuit would be enough to affect their judgment in the future.
Fortunately, if Del Monte does file its lawsuit, it appears to have extremely little chance of succeeding. Government agencies and officials are protected by sovereign, or governmental, immunity for many actions, including (and especially) actions that involve their discretion and professional judgment. The laws protecting governments from lawsuits for such acts were enacted to prevent the very situation that Del Monte might cause: making government agents afraid to do their jobs, thereby endangering the public. Public officials owe their duties to the public, and not to individual companies or people.
Like with many other things, I think Del Monte would be better off staying the shadows until this all blows over. If it does sue government officials who are trying to prevent consumers from getting seriously ill, it will, in my view, seriously hurt its own reputation and any trust that the public has in it.
The Skeptical Lawyer 