MO Judge Uses Defense Witness Info on High Somatic Cell Counts to "Infer" Cow Illness, Uphold the State, and Condemn Morningland Dairy's Cheese; FTCLDF Promises Appeal
A few weeks ago I asked in a post whether a Missouri judge might be willing to explore new directions suggested by the Farm-to-Consumer Legal Defense Fund before condemning $250,000 worth of Morningland Dairy raw cow's and goat's milk cheeses.
The county judge, David Dunlap, has just issued his decision, and the answer is an emphatic "No." Indeed, the judge came at the entire matter differently than had been presented by either the state or the FTCLDF, in upholding the state's push to destroy Morningland's cheese.
The state had argued that because some samples of Morningland's cheese contained listeria monocytogenes and staph aureus, the cheese should be considered "adulterated" and the entire inventory should be condemned. This despite the fact that there hadn't been any illnesses from cheese previously sold.
The FTCLDF had argued that the state should provide detailed information about the nature of the contamination (such as the amount of listeria monocytogenes, and whether it was from a pathogenic subtype), and it challenged the assumption that the presence of bacteria constituted adulteration.
Judge Dunlap rejected the notion that the state had to provide detailed information. "At the time of condemnation [last summer], the Milk Board knew only that two small samples of defendant's cow cheese in California were alleged to contain unspecified quantities of the potentially pathogenic bacteria listeria monocytogenes and staph aureus. No evidentiary warrant existed for a global conclusion that the entire inventory of over 20,000 pounds--comprising many varieties of both cow and goat cheese produced on various dates over a period of many months--was similarly tainted. In this uncontested case, however, substantial evidence is not required, and agency discretion is broad
"More particularly, the court finds it implausible that a condemnation order should require separate testing of each individual batch of suspect cheese. The statutory scheme can protect public health only if a finding of tainted samples effectively shifts the burden of establishing lawfulness to the manufacturer. Application of this rule in the present case required that all of defendant's cheese presently in commerce be recalled, and that no further product be released except upon a showing of product wholesomeness and compliance with statutory and regulatory mandates."
Beyond that sweeping declaration, though, Judge Dunlap seemed most interested in the health of Morningland Dairy's cows. He pointed out that Missouri dairy laws stipulate that diseased dairy animals, apart from the milk or cheese they produce, can be "deleterious to man or detrimental to milk quality." That means "the court must therefore disregard the absence of sickness among the consumers of defendant's cheeses."
Ironically, the evidence of sickness in some Morningland Dairy cows was said by the judge to have been provided by Tim Wightman of the Farm-to-Consumer Foundation, who testified as an expert witness on behalf of Morningland.
"Prior to the testimony of defense witness Tim Wightman, no particular evidence suggested that any cheese had been made from the milk of diseased animals," noted the judge. "Mr. Wightman, however, recounted...greatly elevated somatic cell counts for cow milk from the herd supplying the defendant's operation during the period February-August 2010. The witness added, and courts have noticed, that elevated somatic cell counts in raw milk signal a likelihood of disease in the contributing herd."
The judge added, further, "Mr. Wightman explained that mastitis is an infectious disease and that cows afflicted with S aureus must be culled. Denise Dixon, the dairy principal and co-owner of the subject herd, indeed culled several cows in September 2010--just after the persistently high somatic cell counts, the California findings, the condemnation order, and the St. Louis laboratory results.
"It is more than a fair inference that, during the period when the condemned cheese was produced, there existed within the source dairy herd 'animals afflicted with a contagious or infectious disease deleterious to man or detrimental to milk quality,' namely mastitis. For this reason, the court finds that the condemned cheese was ineligible for sale ...whether or not the Board could have known this fact at the time of condemnation."
"A fair inference"? I googled Judge David Dunlap, but could find no evidence of him being a veterinarian, epidemiologist, or food science expert of any sort. It seems strange that he would base his decision on his own judgment that the Morningland Dairy cows were "afflicted with a contagious or infectious disease deleterious to man..."
The decision only becomes more improbable. The judge next goes through a tortured analysis to associate the goat cheese with "unsanitary" conditions, since there were no somatic cell counts for the goats. He argues, "Plant conditions are deemed 'unsanitary' to the extent they deviate from the regulatory prescriptions. Here the evidence shows that in several respects that plant conditions failed to satisfy the stated requirements. These deficiencies had not led [the dairy inspector] to initiate any enforcement action in 2008 or 2009, likely because at that time no evidence suggested that contaminated cheese was being produced. Rather, it was the coincidence of contamination with 'unsanitary' conditions that led the Board to act. This action was not arbitrary or capricious, but evidence-based and within the Board's broad discretion."
His conclusion: "Because all of defendant's August 26 inventory (except the 11 blocks imported from Wisconsin) was either derived from infected milk or made in 'unsanitary' conditions (and presumably contaminated by one or both bacteria), it could never be sold."
Once again, the judge seems intent on proving a matter no one had argued--that the Morningland facilities were "unsanitary."
It's been understood from the beginning that this case was really about providing a justification to the U.S. Food and Drug Administration for its armed raid on Rawesome Food Club last June 30, during which Morningland Cheese was seized (along with $11,000 of other food).
Judge Dunlap seemed intent on helping the FDA complete its mission.
Judge Dunlap's decision upholding the state's request for a permanent injunction seems to set the stage for the destruction of whatever of Morningland's inventory hasn't already spoiled. Gary Cox of the CDFA promises an appeal within thirty days, so presumably things will remain on hold until appeals are dealt with.?