Farmer Allegedly Harmed by FDA Warning on Tomatoes Sues Under the Federal Tort Claims Act

May 26, 2011

By Ricardo Carvajal

Seaside Farm, Inc., a South Carolina tomato farmer, has sued the federal government under the Federal Tort Claims Act to recoup losses allegedly suffered as the result of the government’s misidentification of fresh tomatoes as the culprit in the outbreak of Salmonella Saintpaul that occurred in May 2008.  Seaside contends in its Complaint that FDA was negligent “in failing to identify any contaminated tomatoes from South Carolina before announcing a nationwide recall,. . .  failing to follow federal standards for laboratory verification and testing of scientifically knowable information,. . .[and] announcing a nationwide tomato recall and then contemporaneously acknowledging that the tomatoes from 41 states were safe,” among other actions.

In May 2008, CDC notified FDA that tomatoes were implicated in an outbreak of Salmonella Saintpaul. FDA initially warned consumers in New Mexico and Texas not to eat certain kinds of tomatoes, then expanded the warning nationwide.  Subsequently, certain kinds of peppers were identified as the likely culprit, and FDA lifted its warning on consumption of tomatoes – but not before the damage was done.  FDA has identified the Salmonella Saintpaul outbreak investigation as “an example of one of the most difficult traceback investigations.”

Although it’s cold comfort to Seaside Farms, new § 423(j) of the FDC Act (added by the FDA Food Safety Modernization Act or FSMA) requires FDA to establish an “incident command operation” for a Class I recall so as “to reduce the potential for miscommunication during recalls or regarding investigations of a food borne illness outbreak associated with a food that is subject to a recall.”  In addition, FSMA§ 206(e) directs the Government Accountability Office to submit a report to Congress that reviews “new or existing mechanisms available to compensate persons for general and specific recall-related costs when a recall is subsequently determined by the relevant agency to have been an error,” and that “considers models for farmer restitution implemented in other nations in cases of erroneous recalls.”