MORNINGLAND DAIRY TRIAL NEARLY COMPLETE
January 23, 2011
On January 13th, the second grueling day of the Morningland Dairy LLC marathon trial ensued. For those who don’t know, court went on for 10 hours on Tuesday and ten full hours on Wednesday. Early in the Wednesday proceedings there were approximately 20 people in the audience, but as noon approached the attendance grew to nearly 45. Wednesday was almost entirely devoted to defense witnesses with the exception of Sarah Blamely, technician from Microbe Innotech on behalf of the Missouri Milk Board. Miss Blamely testified to the processes she followed after receipt of the samples by courier. She stated that she believed Don Falls of the Missouri Milk Board was a representative of Morningland Dairy and that was why she allowed him to change information regarding batch numbers on Morningland samples.
Following Ms. Blamely was Denise Dixon, General Manager of the farmstead cheese plant. Both General Mangers, Joseph and Denise Dixon, were in Washington State at the American Cheese Society Convention on August 26th, the day that the Missouri Milk Board embargoed, seized and condemned Morningland’s entire cheese stock. Mrs. Dixon testified about general processes and her training in the operation of the cheese plant, and about her concerns upon hearing of the notice from California Department of Food and Ag regarding their cheese. Mrs. Dixon also testified that there was an FDA recall notice sent out without their authorization and prior to their return to Missouri from the American Cheese Society convention Washington. The Missouri Attorney General counsel, Jennifer Bloome, objected nearly every time a defense witnesses mentioned the “FDA”, and made no exception to this mention by Denise Dixon. Defense Attorney, Gary Cox of FTCLDF (Farm to Consumer Legal Defense Fund) indicated that they did indeed have proof of this August 27th recall notice despite the objection of the Attorney General’s office at the admission of this testimony into the court record. Notably, the AG’s office did not object to the testimony of their witnesses, Missouri Milk Board employees Gene Wiseman and Don Falls, stating that they followed all FDA guidelines and procedures in their agency.
Perhaps the most revealing statement made all day was put forward by Jennifer Bloome of the AG’s office in explanation of her objection to referencing the FDA involvement at Morningland. While I do not have the transcript in front of me, I wrote down what I heard her state, and am reasonably certain it is correct. Objecting to a reference of the FDA inclusion regarding invoices from Morningland given to Don Falls of the Missouri Milk Board on August 27th, she said, “The invoices were procured for a collateral matter and we would like to keep that separate from this case.” It would seem that the FDA and the Missouri Attorney General’s office are working together for further action against Morningland.
An inference was made by the AG’s office that the Dixons were trying to avoid discovery of listeria laden cows in their herd. Ms Bailey-Brown of the AG’s office was questioning Denise Dixon and asked, “Do you expect us to believe that you sold cows after finding you had a listeria problem, and did not pick those cows?” Joseph Dixon informed me that the cows they sold in the end of September, early October were dry cows due to freshen, and they simply couldn’t afford to continue to feed them, so they were sold, and many went to slaughter at 54¢ per pound. Denise Dixon simply replied, “We were financially stricken.” The Attorney General’s office pursued this reasoning for what seemed an inordinate amount of time to those of us in the audience remotely familiar with dairying...which was most of the audience.
Jedadiah York, Morningland’s Plant Manger testified next, and seemed understandably nervous. His testimony was mostly rudimentary, regarding the processes involved in making cheese. The most revealing thing in his testimony was that he picked the cheeses to be sampled straight from their cut stock with Don Falls present. Previously, I understood that an employee had picked the cheese and neither Don Falls or Jedadiah were involved in that process. He also testified that he did not always record the date the first block of cheese from a batch was cut. He attested that the cheeses had always been aged at least 60 days, but he was occasionally busy and failed to make record of the dates certain batches had been cut. This is important because raw dairy cheeses are required to be aged 60 days, while no reports of illness or product complaints have ever surfaced, those lapses in record keeping are not helpful to Morningland Dairy’s plight.
Next came the testimony of Tim Wightman, a dairy consultant, Farm to Consumer Legal Defense Fund board member and major force in the push for National Raw Milk Standards. While the Attorney General’s office questioned his expertise, they nonetheless had done their research on Wightman and used his own standards to effectively malign Morningland Dairy because of one milk sample where their somatic cell count (SCC) went over the state grade A level of 750,000. Results from one full year of Morningland milk samples were read into the record and the SCC’s were from 160,000 to a single time spike of 1.7 million. The average SCC was 600,000 or lower with only that one spike and several in the 300,000 range. Most dairy people will tell you that the records are indicative of a very well run dairy with good herd health, and the spike was likely due to someone forgetting to turn on the tank to cool the milk. Nonetheless, the AG’s office used Wightman’s standards from his own literature to cast aspersions on the herd health of Morningland. Wightman also inexplicably stated that when you remove cows from the milking line it will reduce your SCC. Wightman testified that his standards require SCC’s less than 300,000 with any spike being indicative of a potentially severe herd health problem, not a potential human error. The push for National Raw Milk Standards is a deep concern for many in the raw milk movement, and the standards expressed by Wightman on the stand in this trial are good examples of the basis for these concerns.
There was only one witness left and that was Dr. Ted Beals, an extremely well educated and highly credentialed medical doctor and microbiologist. Beals was the indisputable star witness in the entire case. Initially, while he was reciting his credentials, Judge Dunlap said, “While we could ask when you received your medical license, that could reveal your antiquity and that is not the habit of the court”, which drew some laughs from the peanut gallery. Dr Beals was articulate, thought provoking ad quite authoritative in his testimony, which centered predominately on the extremely pervasive presence of bacteria in general, and both listeria monocytogenes and staph aureus in particular, in the environment and all over each one of us in the court room. From time to time, Dr. Beals was guilty of falling into narratives, but despite the lessons in bacterial behavior, his testimony remained germane to the topic. Near the end of his testimony, AG Bailey-Brown was attempting to infer that Beals was an anti-government whack job by citing points the AG’s office had harvested from a power point presentation he had given at a raw milk symposium.
Bailey-Brown asked a question that began with “Isn’t it true that you believe that....” which was so long and meandering that no one could follow it, and to which Cox entered an objection and the Judge replied, “As long as it isn’t to the truth of the matter and only to the beliefs of the witness, the witness can answer the question....That is, if he can remember the question.” Beals asked her to re-state the question, and not too surprisingly, she couldn’t recall it either. It definitely provided some much needed comic relief. One of Beals’ responses (among many) that bears repeating was, “There are millions more bacteria in and on humans than there are cells in the human body.....” Kind of like, “Auuugh! Nature! It’s all over me!” And also, when the AG evidently (okay, I’m being generous here) misinterpreted some of Dr. Beals’ testimony given in deposition regarding listeriosis resulting in 100% fetal mortality, he corrected her cleanly. His response was, “No, that is not what I said. I said that if listeriosis resulted in abortion it would cause 100% mortality in a fetus”
It was interesting that the Attorney General’s office seemed intent on showing some kind of collusion by inquiring of every witness for the defense as to their membership and/or position in the FTCLDF organization. As if being a member of this group somehow was akin to being a card carrying member of a terrorist group or something. Obviously Denise Dixon, is a member of the group as Morningland Dairy is being represented by FTCLDF Lead Counsel Gary Cox, and you must be a member of the group to be represented by the groups attorney. Is it really that much of a surprise that an organization designed to represent the interests of farmers and farmstead producers would use it’s own experts in a trial? It appeared that the attempt to deride the testimony of the defense witnesses on this basis held little weight with the judge as his facial expression didn’t change a bit when everyone admitted to some type of an affiliation with the organization.
The 7:00p adjournment time was met with no time for oral closing arguments. Judge Dunlap, whom, as I’ve said previously, is a very unorthodox judge, allowed that if the State wished, they could bring in their own medical doctor as an expert to rebut Dr. Beals’ testimony, with the ability of the defense to depose as well. Barring developments in that realm, closing arguments are to be presented in written format. Gary Cox asked if there was to be a page limit, and Dunlap replied, “I guess 40 pages....Holding to the law and consonant arguments, explain why your side wins.” The written closing arguments are to be submitted to the court on January 28th. Meanwhile, the judge will go over the testimony.
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Barring any further developments on the potential suit involving the FDA as alluded to by Missouri Attorney General Jennifer Bloome, there may not be any updates on Morningland Dairy’s crises for an entire week and a half. As always, I will keep you apprised if this fluid situation changes.....Meanwhile, please do visit the UnCheese Party and make any donation you are capable of making. If you haven’t grasped it before now, our nation is in a serious crisis for real food. If we have no real farmers, we certainly will not have any real food.
� 2011 Doreen Hannes - All Rights Reserved