Last week, Del Monte took the surprising action of suing the FDA over its outbreak of Salmonella Panama that was linked to fresh cantaloupes sold at a chain of wholesale grocery stores in multiple western states.  The outbreak sickened 20 people in 10 states.  Although no cantaloupes tested positive for the outbreak strain of Salmonella Panama, epidemiological investigation by many state health departments, the CDC, and the FDA revealed that Del Monte’s cantaloupes were the cause of the outbreak. 

Now Del Monte has the State of Oregon and one of the leading epidemiologists on the planet in its crosshairs.  Today, it filed notice with the State of Oregon that it intends to sue the State and a public health official because, according to Del Monte, it was wrongly fingered as the cause of the outbreak.  According to The Packer, Del Monte specifically cites the actions of Bill Keene, Oregon’s epidemiology chief, for making what it calls “misleading allegations” about the source of the outbreak.

Notably, Del Monte’s original suit against the FDA seeks to have a federal judge order that the FDA end an import alert restricting the company’s imports of cantaloupe from Fresh Asuncion Mita farm.  The suit is not an action for damages per se, but instead seeks to establish the same thing that the forthcoming suit against Oregon will have to–i.e. that Oregon, the CDC, and the rest of the investigating health agencies got it all wrong; that Del Monte never did sell any contaminated cantaloupes. 

Here is the CDC’s final summary on the epidemiological aspects of the investigation:

Collaborative investigative efforts of state, local and federal public health and regulatory agencies linked this outbreak to eating cantaloupe. Twelve of 16 ill people reported eating cantaloupe in the week before illness. Eleven of these 12 ill people ate cantaloupes purchased at eight different locations of a national warehouse club. Information gathered with patient permission from membership card records helped determine that ill persons purchased cantaloupes sourced from a single farm. Product traceback information indicated these cantaloupes were harvested from single farm in Guatemala. FDA worked closely with CDC, authorities in states where illnesses have occurred and the firms involved to investigate the source of the contamination and to identify the likely source of this outbreak.

Del Monte’s suit against the FDA, and no doubt the forthcoming suit against Oregon, alleges that the conclusion that Del Monte cantaloupes were the cause of the outbreak was based on a “clear error of judgment.”  According to Del Monte, “Dr. Keene reached this conclusion without ever testing any cantaloupes to determine whether they were contaminated with salmonella.” 

Here is Food Poison Journal’s take: since when do the lack of positive tests on the suspect food item become a litmus test for whether the product caused an outbreak?  More importantly, since when did the lack of positive tests trump other valid epidemiological data suggesting that a certain product caused an outbreak?  Based on the CDC’s outbreak report, 11 of 12 who recalled consuming cantaloupe in the days before onset of illness were positively linked to Del Monte’s cantaloupe (not just any cantaloupe), and moreover, further traceback established that all of the suspect cantaloupes were grown by one company at one specific farm. 

Del Monte better have in its arsenal a damn good set of facts–not just “no cantaloupes ever tested positive for Salmonella Panama”–for the bold precedent that it is setting.  Win or lose on either of its suits (and that is by no means intended to be a validation of Del Monte’s factual spin), it’s more than a little frightening to think that it’s lawsuits may well result in public health officials being reluctant to act in a situation where efficient, informed action is critical to prevent further illnesses.