MO Judge Uses Defense Witness Info on High Somatic Cell Counts to “Infer” Cow Illness, Uphold the State, and Condemn Morningland Dairy’s Cheese; FTCLDF Promises Appeal

Cheddar cheese being produced at Morningland Dairy during happier times. A few weeks ago I asked in a post whether a Missouri judge might be willing to explore new directions suggested by the Farm-to-Consumer Legal Defense Fund before condemning $250,000 worth of Morningland Dairy raw cow’s and goat’s milk cheeses.

The county judge, David Dunlap, has just issued his decision, and the answer is an emphatic “No.” Indeed, the judge came at the entire matter differently than had been presented by either the state or the FTCLDF, in upholding the state’s push to destroy Morningland’s cheese.

The state had argued that because some samples of Morningland’s cheese contained listeria monocytogenes and staph aureus, the cheese should be considered “adulterated” and the entire inventory should be condemned. This despite the fact that there hadn’t been any illnesses from cheese previously sold.

The FTCLDF had argued that the state should provide detailed information about the nature of the contamination (such as the amount of listeria monocytogenes, and whether it was from a pathogenic subtype), and it challenged the assumption that the presence of bacteria constituted adulteration.

Judge Dunlap rejected the notion that the state had to provide detailed information. “At the time of condemnation [last summer], the Milk Board knew only that two small samples of defendant’s cow cheese in California were alleged to contain unspecified quantities of the potentially pathogenic bacteria listeria monocytogenes and staph aureus. No evidentiary warrant existed for a global conclusion that the entire inventory of over 20,000 pounds–comprising many varieties of both cow and goat cheese produced on various dates over a period of many months–was similarly tainted. In this uncontested case, however, substantial evidence is not required, and agency discretion is broad

“More particularly, the court finds it implausible that a condemnation order should require separate testing of each individual batch of suspect cheese. The statutory scheme can protect public health only if a finding of tainted samples effectively shifts the burden of establishing lawfulness to the manufacturer. Application of this rule in the present case required that all of defendant’s cheese presently in commerce be recalled, and that no further product be released except upon a showing of product wholesomeness and compliance with statutory and regulatory mandates.”

Beyond that sweeping declaration, though, Judge Dunlap seemed most interested in the health of Morningland Dairy’s cows. He pointed out that Missouri dairy laws stipulate that diseased dairy animals, apart from the milk or cheese they produce, can be “deleterious to man or detrimental to milk quality.” That means “the court must therefore disregard the absence of sickness among the consumers of defendant’s cheeses.”

Ironically, the evidence of sickness in some Morningland Dairy cows was said by the judge to have been provided by Tim Wightman of the Farm-to-Consumer Foundation, who testified as an expert witness on behalf of Morningland.

“Prior to the testimony of defense witness Tim Wightman, no particular evidence suggested that any cheese had been made from the milk of diseased animals,” noted the judge. “Mr. Wightman, however, recounted…greatly elevated somatic cell counts for cow milk from the herd supplying the defendant’s operation during the period February-August 2010. The witness added, and courts have noticed, that elevated somatic cell counts in raw milk signal a likelihood of disease in the contributing herd.”

The judge added, further, “Mr. Wightman explained that mastitis is an infectious disease and that cows afflicted with S aureus must be culled. Denise Dixon, the dairy principal and co-owner of the subject herd, indeed culled several cows in September 2010–just after the persistently high somatic cell counts, the California findings, the condemnation order, and the St. Louis laboratory results.

“It is more than a fair inference that, during the period when the condemned cheese was produced, there existed within the source dairy herd ‘animals afflicted with a contagious or infectious disease deleterious to man or detrimental to milk quality,’ namely mastitis. For this reason, the court finds that the condemned cheese was ineligible for sale …whether or not the Board could have known this fact at the time of condemnation.”

“A fair inference”? I googled Judge David Dunlap, but could find no evidence of him being a veterinarian, epidemiologist, or food science expert of any sort. It seems strange that he would base his decision  on his own judgment that the Morningland Dairy cows were “afflicted with a contagious or infectious disease deleterious to man…”

The decision only becomes more improbable. The judge next goes through a tortured analysis to associate the goat cheese with “unsanitary” conditions, since there were no somatic cell counts for the goats. He argues, “Plant conditions are deemed ‘unsanitary’ to the extent they deviate from the regulatory prescriptions. Here the evidence shows that in several respects that plant conditions failed to satisfy the stated requirements. These deficiencies had not led [the dairy inspector] to initiate any enforcement action in 2008 or 2009, likely because at that time no evidence suggested that contaminated cheese was being produced. Rather, it was the coincidence of contamination with ‘unsanitary’ conditions that led the Board to act. This action was not arbitrary or capricious, but evidence-based and within the Board’s broad discretion.”

His conclusion: “Because all of defendant’s August 26 inventory (except the 11 blocks imported from Wisconsin) was either derived from infected milk or made in ‘unsanitary’ conditions (and presumably contaminated by one or both bacteria), it could never be sold.”

Once again, the judge seems intent on proving a matter no one had argued–that the Morningland facilities were “unsanitary.”

It’s been understood from the beginning that this case was really about providing a justification to the U.S. Food and Drug Administration for its armed raid on Rawesome Food Club last June 30, during which Morningland Cheese was seized (along with $11,000 of other food).

Judge Dunlap seemed intent on helping the FDA complete its mission.

Judge Dunlap’s decision upholding the state’s request for a permanent injunction seems to set the stage for the destruction of whatever of Morningland’s inventory hasn’t already spoiled. Gary Cox of the CDFA promises an appeal within thirty days, so presumably things will remain on hold until appeals are dealt with.?

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43 Comments on "MO Judge Uses Defense Witness Info on High Somatic Cell Counts to “Infer” Cow Illness, Uphold the State, and Condemn Morningland Dairy’s Cheese; FTCLDF Promises Appeal"

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March 2, 2011 11:59 am

The judge looked at evidence of pathogen contamination in finished product, and tests related to herd health problems, then decided to rule in favor of protecting the public health. Kudos.

Mark McAfee
March 2, 2011 1:21 pm


Kudos for what. The judge is a nonthinking FDA puppet.

First of all, the Michigan fresh milk group found that SCC were actually beneficial to human health and immune development. How did that get lost in the testimony?

Second of all, SCC are not alive and do not create illness. How did that get lost?

Lastly, never ever trust the courts.


March 2, 2011 1:31 pm


The Michigan fresh raw milk group never completed their website, and I assume they disbanded. Most of their site is broken links. In short, a high SCC = pus in the milk. Clearly, you don't sell your consumers milk with high SCC because you care about quality (and Fresno County regularly keeps you in check).

Bill Anderson
March 2, 2011 10:06 pm


Do you know the approximate population threshold at which Staph entero-toxins are produced?

Gary Cox
March 2, 2011 11:19 pm

for the record, the court in morningland looked at 16 monthly samples of milk. the regulatory limit in missouri for somatic cell count is 750,000. on only three instances out of 16 did the milk exceed 750k, and at no time did it exceed 750k two out of four consecutive times.

lola granola
March 2, 2011 11:41 pm

(In response to Violet's comment on the last article)

Thank you for your kind and encouraging words, Violet. If you haven't yet seen this video, I highly recommend it.

"Young Madison Socialist Reveals Popular Noodles & Company Restaurant Is Actually Harsh Dictatorship"

"I work at Noodles, a restaurant, and basically it's a dictatorship there. We're told exactly what we're going to cook, how we're going to cook it, what time we're gonna get there, and basically if they don't like what they're doing they try to tell us what to do and if we don't listen they get rid of… Read more »

Naomi Fournier
March 3, 2011 12:11 am


You might want to check with the Michegan Fresh Unprocessed Whole Milk Workgroup to see if they really disbanded. I was wondering about the broken links on their website myself, so I sent them an email. They replied right away and told me that they are still working on the website, and are adding the missing material after they finish their research on each subject. They have completed the "Histroy of FUW Milk" and "Benefits & Values", and are working on "Risks" right now.

Mark McAfee
March 3, 2011 12:13 am


What we have experienced is that literally just a few cows out of hundreds in a herd can boost SCC sky high. This is not a danger to anyone. No it is not puss. You sound like a raw milk hater.

We have also found that high SCC do not have the same effect in raw milk as they do in processed superheated milk. Nit appears that the heating of the milk breaks up the cell membranes of the Sommatic cells and causes all sorts of quality challenges. But when raw these challenges do… Read more »

Mark McAfee
March 3, 2011 4:49 am

Here is something to brighten your lives!!!

OPDC is the corporate sponsor and main cheerleader for the "4 RAW MILK CATS" UltraCycling Team.

This team of four ( average age 50 years old ) female extreme cylcists drink OPDC raw milk and are challenging the world record for crossing the USA in the fastest time ever. Dr. Cat Berge DVM and PhD is the team captain and was supported by OPDC several years ago when she competed in the RAAM race ( Race Accross America from San Diego to the east coast at 21 hours… Read more »

Mark McAfee
March 3, 2011 4:52 am

Their team Jerseys are being ordered right now….

Their racing shorts say…"RAW MILK" right across the Butt area….that kicks BUTT.


Bill Anderson
March 3, 2011 7:42 am

Since Violet has requested it, I am posting information rebutting Lola's Koch-Brothers/Fox-News talking points, supporting the government's attack on the basic rights of working class people in Wisconsin.
"Wisconsin Gov. Scott Walkers state budget repair bill would be unconstitutional because it would violate the constitutional home rule that protects cities and villages from interference in local pensions by the state, according to a legal opinion issued today by Milwaukee City Attorney Grant Langley."
It's the Inequality, Stupid
Analysis of how wealth in American is distributed. Why more Reagaonomics (tax breaks for the rich and corporations)… Read more »

Gordon Watson
March 3, 2011 7:46 am

"the judge looked at evidence of pathogen contamination in finished product … " , you say?
Well do I remember Judge Edmund Cronin prounouncing from the Bench"the nature of evidence is that it can be tested" as he politely told the Crown Counsel to get stuffed, when the Crown wanted to put in material anonymously.
Show us the facts which Morningland was given the opportunity to test?!.
Of course they weren't allowed to make full answer and defence … that'd open up the whole thing to a fair hearing, and we sure can't have THAT!! when it comes… Read more »

Bill Anderson
March 3, 2011 7:57 am

Are [Wisconsin's] finances really in crisis? Budget figures can be moving targets, of course, depending on who is spinning the numbers, but a closer look at the states finances suggests that while there are major problems to be addressed, the situation is arguably not much worse than two years ago, and in some ways better.

Much debate has sprung from a Jan. 31 memo from the nonpartisan Legislative Fiscal Bureau, which says at one point that the state will finish the fiscal year on June 30 with a $112 million gross surplus.


Barney Google
March 3, 2011 8:37 am

Seriously, Bill, is there anything you don't know?

Mark McAfee
March 3, 2011 10:49 am


I am presenting ( teaching again ) tomorrow evening at 1800 hours at the Carlsbad Library in Carlsbad CA. If you are in CA please come by and get a free quart of OPDC raw milk. You can use your real name and I would never know who you are….???

I do not even know in which state you live….it is quite sad actually that we can not ever speak. You throw your hollow stones from behind your false name. This is not a fair discussion. Instead, Lykke is a ghost of the FDA CAFO NCIMS and the PMO.… Read more »

Violet Willis
March 3, 2011 10:55 am

Thanks for the link Lola . . LOL! I just loved the last 30 seconds or so of this video:)

Bill . . what about your cheesemaking job in Ohio . . . are you still working there? If you have all the answers . . . why not start your own cheesemaking venture. It is not that hard to do if you apply for Ag grants, small business loans, etc.

Until you own your own successful business (you are only 25 or 26 years old and you have a great deal to learn . .… Read more »

Violet Willis
March 3, 2011 11:06 am


I have a hunch that Lykke lives in upstate New York. I may be wrong but I do have "Sitemeter" on my blog and someone from here was looking at my blog for a great deal of time when I asked her to apologise to me privately a few months ago. She never did . . . so I feel that I can share this info to all of you now.

Kind regards,


Kevin Gordon
March 3, 2011 11:42 am


I would love to come talk with you in CA, but I'm stuck here in NC having my health protected by redneck control freaks.

Love the bike team sponsorship…maybe when FTCLDF brings down the FDA's interstate ban you can sponsor my team as well. Until then, we can just be 'Team Pet Milk' (pun intended…).

P.S. Help me understand why you all want to waste your fingertip callouses on that troll Lykke…it's probably just Bill Marler masquerading, anyway.

Violet Willis
March 3, 2011 11:50 am


Don't want to waste my time on Lykke anymore either . . . . but I think I may know who she is:) Her somatic cell count posts gave her away. She is not Marler . . .

Think quality assurance:)

Kind regards,


Bill Anderson
March 3, 2011 11:51 am

Since you are asking Violet, I will share.

I moved back to Wisconsin just prior to the holidays, because the creamery I was working at in Ohio was not ready to make cheese. The bad economy combined with chain grocery store bias against medium-sized dairy processors and federal dairy policy geared towards Deans and DFA conspired to create a lot of financial headaches for the company. Upon further discussion we decided it would be several years before they were ready to make cheese on a commercial basis.

There's nothing more to it than that. I did get the… Read more »

Concerned Person
March 3, 2011 12:04 pm

Without an adversary, you all start eating each other alive. Why dont you take some hits at me and leave poor Bill Anderson alone. What the hell is wrong with you people?

I'm a teacher in California and make $88,000 a year with full benifits. This should give you all something to throw darts at. I've got your back Bill.


Violet Willis
March 3, 2011 12:07 pm


Don't believe in propaganda period right or left. If you have read my posts you can see that for yourself.

Never heard of the Koch brothers myself until Wisconsin . . . . wonder why? Propaganda maybe . . . hmmmm. No mention of Soros and why is that?

I do believe we have the freedom to consume foods of our choice and small farmers have the right to produce QUALITY meats, dairy and produce without government intrusion directly to consumers and even to top chefs . . . . believe me . . . .… Read more »

Bill Anderson
March 3, 2011 12:21 pm

Not a fan of George Soros either, Violet. Flip side of the same coin.

We don't disagree about small farmers. I just happen to think that our regulatory agencies should be devoting the resources they use for prosecution towards helping small farmers. And they should be prosecuting the factory farms.

As much as we'd all like it, we're not going to have an anarchist society (without government) anytime in the near future. And if we were to have such a society, it would need to be collectivist to a certain degree — the market left to its… Read more »

Violet Willis
March 3, 2011 12:22 pm

Great job CP . . . . with health benefits you make about $107,000 per year. Good for you! Then again, I am just a lowly farmer without any benefits or a retirement pension and I still manage to get by and don't really get upset about it.

I love my job though!

Kind regards,


March 3, 2011 12:24 pm

Look, I agreed with the Judge's decision and most of you didn't. If everyone always agreed about everything, there would never be progress. Our species would be like the amazing ants that survive and prosper on genetics alone.

Glad to hear the Michigan group is working on the risks section of their website.

As you all probably know, almost all scientific journal articles are reviewed by anonymous peers. This is true for ones you might not like (for example, outbreaks from raw milk) and ones you might like, such as this recent paper in New England… Read more »

Violet Willis
March 3, 2011 12:25 pm


Don't think that the government needs to help me at all . . . Just needs to get out of the way.

Night all.

Kind regards,


March 3, 2011 12:28 pm

p.s. Lykke is not Bill Marler, but thanks for the complement :)

Bill Anderson
March 3, 2011 9:35 pm


If you intend to sell cheese made in any meaningful quantity on your farm, you're going to have to work with the government, like it or not. They can be helpful with food safety issues, but unfortunately they don't understand artisan cheese making so well. Their system is designed for the big boys. We need a system that is designed for the small farmers and cheese makers.


Staph Toxins are produced once the concentration reaches 10^6/mL. This threshold is also the threshold for Grade B raw milk for pasteurization and manufacturing (aka cheese and butter making)… Read more »

lola granola
March 3, 2011 10:14 pm

"And they should be prosecuting the factory farms."

The conditions that created the factory farms are a combination of the easy credit of the fractional reserve banking system combined with government policy that controls the prices paid to dairy farmers and eliminates any meaningful competition. To spend more government money "prosecuting" factory farms would be illogical; get rid of the mechanisms that caused their existence (government intervention into the market) and the factory farm would disappear.

Bill, you seem to take issue with how much corporations spend on campaign contributions. Could answer this please?

How do you explain that the… Read more »

Ingvar Odegaard
March 4, 2011 1:56 am

David Burge over at has a post on 3/2/2011, Longhorns 17, Badgers 1 in re. comparison of public education results of Wisconsin and Texas. Paul Krugman's work, published in The Times, is analyzed.
Mr. J. Ingvar Odegaard

March 4, 2011 3:35 am

Ahaha! FTCLDF making a run at "Worst Legal Team in the U.S."

In other news, contaminated cheese still unhealthy/raw milk people still don't care about the public.

Bill Anderson
March 4, 2011 4:50 am


All economies are collectivist, whether you acknowledge it or not, even capitalist economies. Corporations are collectivist entities. There has never been, never will, a true free market, in which every individual is pitted against every individual in a ruthless bargaining and numbers game for survival. Markets exist within the confines of social institutions and customs, and as such are creatures of the state and of the ruling class.

The most compelling case for economic collectivism is NOT Marxism or socialism or some other outdated 19th-century industrial-revolution-era ideology. The most compelling case for economic collectivism is nature,… Read more »

Ingvar Odegaard
March 4, 2011 6:10 am

The biologists push to have information content formally recognized and added to the four basic forces of nature (gravity-electromagnetism-strong nuclear-weak nuclear) brings forward contrasts such as these: the information content to describe the physical universe from start to present comprises 10 to the 90th power bits; the information content in the simplest life forms (a virus, say) comprises 10 to the 10 to the 11th power bits. Thats ninety zeroes vs. 100 billion zeroes. The point is that biology is wildly complex. We assume it is orderly.

Mr. J. Ingvar Odegaard

Bill Anderson
March 4, 2011 8:33 am

I have no disagreement with you, Ingvar. I'm talking about macro-scale phenomenon, not reductionism. Evolutionary biology is driven as much (if not moreso) by a specie's ability to cooperate as it is driven by competition. Species more adept at cooperation are also more adept at survival.

Humans are the only species which attempt to reduce all economic organization to numerical values. This is the very basis of neo-liberal economic theory which underlies the last 30 years of supply-side economics — the theory of marginal utility. All things must be quantified in order to have economic… Read more »

Violet Willis
March 4, 2011 9:20 am


Your above statement may be your own political theory . . . . but is not grounded in reality. BTW . . . No idea what the heck you are talking about.


lola granola
March 4, 2011 10:21 am

Bill, please refrain from putting words in my mouth. What you are claiming about me is untrue.

First and foremost, I hate corporations (in the multinational, public sense, not in the family-owned, private "Inc." or "LLC"). I am not a "right-winger" and I am not defending "the system".

Corporations do not exist in a natural, organic, free market sense. Corporations only exist for two reasons: because of changes in law made in the 1800s allowing corporations to have indefinite charters and to have charters outside the public interest, and because of fractional reserve banking systems which allow… Read more »

Ingvar Odegaard
March 4, 2011 12:23 pm

Completing my thought above, that The point is that biology is wildly complex. We assume it is orderly. I am not positing conflict between complex and assumed orderliness. The animate is unimaginably complex yet we study, believing there is discoverable order and the effort to study is worthwhile. If we thought the inanimate let alone the animate to be an indiscernible chaos would we make any effort to study it? Study is typically orderly in fashion as we try to be alert to the unexpected. As to the use of numbers, I dont… Read more »

Alice Riccabona
March 5, 2011 12:16 am

What I still find so maddening is the pretense that this is all about safety and public health. That is a complete fallacy, LYYKE. If it were about safety, then diet sodas, particularly aspartame would be banned since:

"Reports of adverse reactions to the US FDA also supports this, as aspartame accounts for over 75 percent of the adverse reactions to food additives reported to the FDA!"

from the article today on Mercola's website:

The FDA HAS TO KNOW that this additive is dangerous yet there is no action on their part. I would argue… Read more »

Bill Anderson
March 5, 2011 12:51 am

How Donald Rumsfeld and Ronald Reagan were responsible for the approval of Aspertame in the 1980's:


You have an awfully romantic view of American history and the free market.

Private ownership of land was forcibly imposed on this continent by European settlers, as part of the largest genocide in human history (also known as "Manifest Destiny") — the wiping out the Native Americans who occupied this continent prior to European colonization.

The natives had communal conceptions of land ownership, and viewed it as a common resource for all humans to share equally. In the native view,… Read more »

Ingvar Odegaard
March 5, 2011 3:07 am

The Milk Opera. I love this site.

lola granola
March 5, 2011 8:06 am

In a free market, Bill, each individual farmer decides if and what tests are necessary to ensure milk quality, based on cultural values and customer demands.

In your system, every farmer, from Washington State, to Alabama, to Maine would have the exact same system.

OPDC buys expensive tests to ensure milk quality/safety, and Mark's customer base will pay the premium needed to off-set those testing costs.

I live in a traditional farming area, where many people have dairy animals and poverty is fairly high. I would not be able to make any money selling milk if I had to run the same… Read more »

Bill Anderson
March 5, 2011 9:30 am


You did not answer my question about how you address food safety and quality, you just brought it back to politics. Testing is not the only means of address safety and quality.

And you are putting words in my mouth — I have never advocated for any kind of enforcement of raw milk standards, just that the standards should be developped so we can establish a safety record for certified raw milk, to prove that it can be produced safely and what kind of testing is needed to establish safety.

You have not explained to me how your free-for-all system… Read more »

Violet Willis
March 5, 2011 10:59 am

So Bill . . . . if you have only farmed vegetables and handled "processed milk" in a commercial setting. . . how can you have a say in raw milk regulatory reform?

You are not even close to my expertise . . . go out there and milk cows, goats and sheep yourself . . . . create quality cheese with this raw product . . . . become a successful cheesemonger . . . If you have questions so many of us here on this blog would be happy to answer them .… Read more »