Citing pending litigation, the U.S. Department of Agriculture declined to comment on a lawsuit filed Wednesday alleging the agency retaliated against John W. Munsell, president of Montana Quality Foods & Processing, for criticizing the agency during a 2002 outbreak of E. coli O157:H7.

Filed in U.S. District Court in Washington, D.C., the suit contends that USDA/FSIS officials subjected Munsell's plant to intensive, repeated E. coli testing and briefly shut down the facility, despite his claims that E. coli-infected ground beef in his plant was purchased from ConAgra. Munsell alleges that his warnings were ignored and that USDA/FSIS officials refused to trace the source.

However, testimony by a FSIS deputy administrator during a December 2002 Senate hearing indicates the agency believes its actions were justified, and that Montana was unable to supply evidence that the contaminated beef was from ConAgra. During the hearing, Deputy Administrator William C. Smith testified that "compliance officers attempted to locate … intact samples of the ConAgra coarse ground beef that Montana … had named as the source of the E. coli contamination. However, since the coarse ground in question was produced on Aug. 30, 2001, no fresh or frozen coarse ground products remained for testing. As a result, FSIS could not confirm the link between Montana Quality Foods' product and the supplied product."

Smith also testified that after a class I recall of 270 pounds of Montana product was issued in January 2002, FSIS inspection personnel conducted standard follow-up samplings, as FSIS policy mandated, to verify corrective action had been taken. Samples collected on three dates in February 2002 all tested positive for E. coli and, according to Campbell, "FSIS advised [Montana] that there was a problem with their food safety system, which required more corrective action."

Later the same month, FSIS notified Montana "of the agency's intent to suspend the assignment of inspectors for its raw ground processes," Smith said. "FSIS's actions were based on an inadequate HACCP system and three positive E. coli O157:H7 samples found in February."