Piercing a State Lab's Armor: Judge Orders NY Ag & Markets to Allow Questioning of Lab Workers by FTCLDF Lawyer
It's our way of the highway. That's essentially been the position of New York's Department of Agriculture & Markets over the last nearly five years, when New York raw dairy farmers have questioned the agency's testing procedures for listeria in raw milk.
Ag & Markets has, during that time, shuttered half a dozen or so dairies for days on the basis of having supposedly found listeria in raw milk. In a couple cases where dairies have had private tests of split samples they've held in reserve that disputed the state's findings, the response was always the same: Our test is the only one that counts. End of discussion.
Now, Ag & Markets will have to pull back the veil on its testing procedures. That's because a state judge has ruled that lawyers from the Farm-to-Consumer Legal Defense Fund, representing dairy owner Chuck Phippen, can cross examine state lab workers.
The whole case stems from repeated shutdowns by Ag & Markets of Chuck Phippens' Breese Hollow dairy in Hoosick Falls--eight in total, for one to three weeks each time--for the presence of listeria in its milk. No one has become ill from his milk, or that of any of the other dairies that have been shut down. Phippens refused to pay $800 in fines from two shutdowns, arguing that the state hasn't provided important details about the lab findings of listeria, and whether the type or amount of listeria actually comprised a health danger. The state brought suit against Phippen.
As part of the suit, the state has fought tooth-and-nail to avoid having its lab workers questioned about not only the details of the findings about listeria at Phippens' farm, but about the lab's overall practices.
Now, County Judge Robert M. Jacon ruled that the state must comply, and allow its lab workers to be questioned. He said in a brief opinion that NY Ag & Markets "has made a general application requesting that [Phippen] be precluded from disposing or seeking any disclosure from any Department employee regarding facts relating or relevant to collection, handling and transportation of the samples and facts relating or relevant to the analysis of the samples by the Food Laboratory. [Ag & Markets] fails to provide a specific basis to the Court to issue such a blanket protective order."
Depositions will probably begin next month. There should be some interesting Q&A sessions.
Bigger picture, this is a small but significant victory. It is often the way legal attitudes change--gain a small edge, and enlarge on it. I don't agree with lola granola's repeated argument against FTCLDF, expressed most recently in a comment following my previous post, that "back-and-forth with the government is just show (notice how FTCLDF doesn't really get anywhere?)."
It's important partly because it has occurred in New York, a large dairy producing state, where the Meadowsweet Dairy case showed the judges having little inclination to examine and place limits on state regulatory power. It's also important because the state labs have been a big mystery in many places, with huge power, and no outside oversight. Hopefully, a shift is under way. ?