Morningland Dairy, the small Missouri cheese producer caught up in spillover from the June 30 raid of Rawesome Food Club, has begun a legal journey that it hopes will allow it to get back into business.

Morningland has been in business for thirty years without any illnesses, but has been ordered by the Missouri Milk Board to destroy $250,000 worth of cheese because of the discovery of listeria monocytogenes in some samples. Since the U.S. Food and Drug Administration made the original announcement about the discovery, it’s assumed the FDA has been pushing the regulatory and legal nightmare that Morningland has had to deal with over the last five months. The FDA was the organizing force behind the June 30 raid of Rawesome, in which Morningland cheese was included in the food confiscated, and in August found to test positive for listeria monocytogenes by the FDA and the California Department of Food and Agriculture.

Because there was no flexibility in the Missouri Milk Board’s ruling–all the cheese produced in 2010 had to be destroyed, and there was no re-doing a test in which company-provided samples were possibly contaminated in the improper cutting of the cheese–the company contested the state’s court order. (For background information, including the court order, see the Morningland site.)

The journey through the legal system for all practical purposes began Dec. 1, when a microbiologist was questioned by the lawyers for the state of Missouri and for Morningland.

The Farm-to-Consumer Legal Defense Fund, which is representing Morningland, provided a transcipt of the deposition, and I’ll tell you right off, it isn’t the most scintillating reading. In fact, I found I suddenly needed a nap after reading through about ten pages of the material.

But the 130-page document is definitely worth reading to understand the focus of the courts in assessing and determining pathogen contamination. And once I woke up and came back to the material, I found two pieces of testimony that stood out. The testimony is by Joseph Frank, a microbiologist brought in by the state as a listeria expert, and at one point, the lawyer with the Missouri attorney general’s office asks the expert: “If it is the Milk Board who is given that authority to make that determination and their determination was that the cheese should be destroyed, based on yur expertise, do you think that is a reasonable determination?”
To which Frank answers, “I can say yes, I think it’s reasonable that–based upon my expertise. But I have to say the–you know, the knowledge basis behind that is–you know, I–I guess I don’t think I have a lot to — to based that opinion on.”

If that doesn’t sound like a ringing endorsement for the state’s case, consider this additional answer to a question that comes up a little later in the testimony, about the possibility the cheese sample provided by Morningland to be tested was contaminated by the individual cutting the cheese, and what the implications of that are:

“If the sample is a valid sample, it tells us something about the larger batch or–or lot. So we can make the–draw the conclusion that a sample–if the sample is contaminated, the lot is contaminated. If the sample is not a valid sample, then it must be redone.” ?

There is more testimony to come from a state inspector, and then from the Morningland side. Tim Wightman of the Farm-to-Consumer Foundation, and a dairy animal expert; and Ted Beals, a retired pathologist who has testified in a number of court cases involving raw milk, are due up this week, according to Gary Gox, the FTCLDF lawyer overseeing the case. Then will come a trial in mid-January.

There was a good deal of discussion following my previous post about what does and doesn’t comprise contamination. This case will provide further insights into official determinations of contamination. And so far, despite lots of verbiage, there seems ample room for doubt about how the state and feds have handled the Morningland case.