Aug 30, 2011 (CIDRAP News) Del Monte Fresh Produce, a company that recalled its cantaloupes in March after health investigators in several states linked them to a Salmonella Panama outbreak, said yesterday that is plans to sue Oregon Health Authority and one of its officials, claiming that the company's products were wrongly singled out.
Public health sources say the company's suit is unprecedented, and some worry that it may inhibit future foodborne illness investigations.
The company is threatening to sue Oregon for financial damages and has filed an ethics complaint against its senior epidemiologist, Dr William Keene, The Oregonian reported yesterday. Keene is one of the nation's most well-known disease outbreak investigators, whose team most recently linked pathogens in deer droppings to an Escherichia coli O157:H7 outbreak in people who ate farm stand strawberries.
In a statement yesterday, Del Monte Fresh Foods claimed that the Oregon investigators identified its cantaloupes as the source of the outbreak, "despite the lack of sufficient factual basis."
The company's announcement came a week after it filed a suit in US District Court that would force the US Food and Drug Administration (FDA) to lift its ban on cantaloupe imports. On Jul 15 the FDA issued in import alert that applies to cantaloupes from Asunsion Mita, Guatemala, home to a farm that supplies the melons to Del Monte.
In June the Centers for Disease Control and Prevention's (CDC's) said in its final report on the Salmonella Panama outbreak that 20 people from 10 states had fallen ill with the outbreak strain.
Epidemiologic investigations, involving federal officials along with partners in California, Maryland, Oregon, and Washington, found that 12 of 16 patients had eaten cantaloupe the week before they got sick, and 11 of 12 had purchased the fruit at eight different locations of a national warehouse club. The multistate product trace-back investigation, which involved the use of membership card records, indicated that the cantaloupes were harvested from the same farm in Guatemala.
Del Monte Fresh Foods recalled nearly 5,000 cartons of cantaloupes on March 22, based on the epidemiologic findings.
State epidemiologists contacted by CIDRAP News said this is the first time they've seen legal action against a health department advance so far, though they said it's not unusual for investigators to receive threats.
Lon Kightlinger, MPH, PhD, state epidemiologist with the South Dakota Department of Health, said some of his department's disease investigations have involved legal tug-of-wars. "Although we do have some worries of legal threats, that does not drive our investigation, but causes us to do a better job," he said.
In Iowa, laws require public health officials to treat the names of entities such as restaurants or companies the same as people, said Patricia Quinlisk, MD, MPH, medical director and state epidemiologist for the Iowa Department of Public Health.
She said that, before going public with names, health officials must discuss the issue with the state attorney general's office to make sure the action complies with a "necessary for public health" clause. "Thus something like this might have more scrutiny here than other places," she said, adding that she's never seen a legal threat like Del Monte's.
Tim Jones, MD, MPH, state epidemiologist for the Tennessee Department of Health, said he's been bullied and subjected to implied threats in the course of epidemiologic investigations. "I've never taken them seriously, and legally I've never been worried," he said.
Though Del Monte's legal threat could create an inhibitory effect, epidemiologists take pride in being able to respond to outbreaks faster and freer than federal agencies, which are often bound by legal restrictions, Jones said. "Our job is to protect people."
Outbreak investigation missteps are rare, and investigators are aware that errors, such as when tomatoes were wrongly implicated in a 2008 Salmonella outbreak that was ultimately linked to hot peppers, can be costly to the food industry, he said.
Jones said Keene is known as one of the nation's gutsiest and most well respected disease investigators, and predicted that Del Monte's case won't go very far.
Some measure of immunity is needed for investigators, Jones said. "If anyone in public health is nervous about getting sued, it could be dangerously inhibitory."
Aug 29 Del Monte Fresh Produce press release
Aug 29 Oregonian story
Aug 24 Del Monte Fresh Produce press release
Jun 23 CDC final update on Salmonella Panama outbreak