Additional tomato growers have joined a lawsuit against the federal government seeking reimbursement for money they lost in 2008 when the Food and Drug Administration erroneously warned consumers against eating Florida tomatoes during a salmonella outbreak.
The FDA ultimately found that hot peppers from Mexico were responsible for the outbreak.
Tomato growers contend they lost the value of their entire spring crop in the six weeks between the agency’s first public warning about Florida tomatoes and its announcement that tomatoes were not the cause of the outbreak, according to the lawsuit.
Initially, 17 growers said they collectively lost more than $40 million. With the addition of 13 growers, the amount of losses is substantially more. In 2008 the Florida tomato industry estimated its losses at $600 million. Growers said prices dropped from $18-$19 per box to 50 per box after the FDA warning.
The growers’ case is now being handled by attorney Stephen Turner, who said he does not generally include specific damage amounts in the early stages of a case. The attorney who filed the initial complaint in the case, Frank Baker, asked Turner to take over the case earlier this year.
“This case is of interest industrywide because next time it could be apples or sweet potatoes,” Turner said.
The government has asked that the case be dismissed, claiming that the FDA did not take “final” action during the outbreak in relation to Florida tomatoes and that even if it had taken “final” action the situation does not meet the Constitution’s definition of a “taking.”
Growers contend the Fifth Amendment’s “takings clause” does apply. The clause includes government actions where property is taken — both announced as in eminent domain cases and unannounced as in the tomato growers’ case.
“A taking can occur when the government takes steps that directly and substantially interfere with the owner’s property rights to the extent of rendering the property unusable or valueless to the owner.” according to the amended complaint from the 30 growers.
The government has until the end of June to file a response to the tomato growers’ response to the motion to dismiss the case, Turner said. He said he expects the judge to rule on whether to dismiss the case by August or September.
The growers suing for losses are: High Hope Farms LLC, SK Enterprises of North Florida Inc., Butler Farms Inc., Two Feathers Farms Inc., Quality Produce LLC, Dan Jones, Circle C Produce LLC, Juniper Tomato Growers Inc., JWM Farms LLC, Jackson Farms, Flowers Farms LLC, Patterson Farm Inc., Hopkins Farms LLC, Mobley Greenhouse Investments LLC, Gregory Enterprises LLC, Townsend Brothers Farms Inc., Murray Farms, DiMare Fresh Inc., DiMare Ruskin Inc., DiMare Johns Island Inc., Gargiulo Inc., DMB Packing corp., Artesian Farms Inc., Kuzzens Inc., Farm-Op Inc., West Coast Tomato LLC, Michael Borek Farms LLC, Frank Diehl Farms, and Diehl & Lee Farms.