Federal judge tosses final claim in tomato farm’s lawsuit against FDA. (subscription to Law360 required)

  • In June 2008, FDA mistakenly linked a multistate Salmonella outbreak to tomatoes and warned consumers about the potential dangers associated with the consumption of raw red tomatoes in New Mexico and Texas.  Federal and state officials struggled to track the actual source of the contamination, and in the meantime, numerous tomato growers across the southeastern states were affected by the negative publicity and uncertainty surrounding the safety of tomatoes.  FDA’s investigation ultimately would find that raw peppers grown in Mexico were responsible for this particular Salmonella outbreak.  Multiple tomato growers sued FDA to recoup their losses.  In one long-running case, a tomato farm sued FDA for defamation, unfair trade practices, unlawful taking, and negligence.  In 2012, a South Carolina federal judge dismissed first three claims, leaving open only the question of FDA’s negligence.
  • On December 16, the judge dismissed the negligence claim, ending the case against the Agency.  The farm had argued that FDA acted negligently in issuing an overbroad tomato “recall” despite the Agency’s failure to link the contamination event to any particular tomato.  FDA’s action and the ensuing negative publicity allegedly resulted in a loss of $15 million in the value of the farm’s tomato crop.
  • Although the judge did not provide any reasoning in his dismissal of the case, a prior ruling suggests that the negligence claim stemmed from alleged misrepresentation and was barred by the Federal Tort Claims Act (FTCA).  (The government generally is immune from suit, but has provided a limited waiver of that immunity in the FTCA).  This dismissal follows closely on the heels of the November 2015 dismissal of a lawsuit by another farm seeking to recover $11 million lost during the tomato recall.  The fate of the tomato cases highlights the uphill battle that regulated industry can face in trying to recoup losses that stem from negative publicity associated with foodborne illness outbreaks.

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