A few weeks ago I mentioned in a blog that April 1 would be my tenth anniversary of writing for Meatingplace and I would be hanging it up on that date. One reader asked why, and I replied after 10 years I was running out of ideas.

Greg Gunthorp replied that perhaps I should write a few blogs on some of the “craziness” I saw at USDA and FSIS.

Don’t expect startling revelations in the next few months, but there are a couple things I think I can safely write about without being accused of kissing and telling.

The first is the irrational fear at FSIS of a Bivens’ lawsuit.

In the case of Bivens vs. Six Unknown Federal Agents, 1971, a court decided individuals could sue federal agents or employees for actions they either undertook or they instructed others to take.

After the USDA/FSIS lost a lawsuit filed by Supreme Beef, the fear of a Bivens action escalated to the point that on one of my first days at USDA I was advised I needed to buy some personal liability insurance in case a Bivens lawsuit was filed against me for actions taken by FSIS.

I did not follow that advice.

This fear was probably most apparent when the recall committee was deliberating whether or not to ask for a recall. One day I received a call from an MD serving on the recall committee suggesting I come upstairs and listen into the discussion.

There was strong epidemiologic proof of a source for a foodborne illness outbreak, but maybe one “i” was not dotted or one “t” not crossed. It was pretty evident that we could best protect the public’s health with a recall, as the source was pretty well determined. However, the committee was hesitant to call for a recall for fear that would be struck down in a court like the Supreme Beef decision to halt inspection was struck down by a Circuit Court, followed by a Bivens suit.

What I remember from that “crazy” day was when the MD said, to paraphrase;

“When Dr. Raymond and I were practicing medicine, if we were as afraid of being sued as you folks are, we could not have gotten out of bed in the morning.”

The recall was announced that day. No one got sued. The company complied and, hopefully, we prevented some child from falling ill from tainted meat.

Before some plant owner responds that all “i”s must be dotted and all “t”s crossed because it is her or his livelihood at stake, let me repeat; I hope we prevented some child from falling ill because the evidence of what the food was and its source were overwhelming.

If I had waited until all tests were back before treating a possible heart attack, I would have had patients die. If FSIS waits until all tests are back, kids will die.

As Lisa Keefe said four weeks ago, “Quack, quack; It’s a duck.”

The first of a few

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