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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Cattlemen and Consumer Groups File Amicus Brief in Canadian Border Suit

Lincoln, NE ~ Cattle producer, consumer and public interest groups representing one-sixth of the U.S. population announced today the joint filing of an Amicus (friend of the court) Brief with the Ninth Circuit Court of Appeals, seeking to have the U.S. Department of Agriculture’s (USDA) Administrative Rule to reopen U.S. borders to Canadian live cattle and expanded beef products declared void.

The Amicus Brief was initiated by stakeholder groups in the Cattlemen’s Competitive Market Project (CCMP) including South Dakota Stockgrowers Assoc., Independent Cattlemen of Nebraska, Montana Cattlemen’s Association; Oregon Livestock Producers; and Cattle Producers of Washington. Sixty-seven entities with national, state or local constituencies or private interests joined the brief.

Ken Knuppe, spokesman for CCMP stakeholders noted, “This is a historic day. U.S. cattle producers are standing shoulder to shoulder with American consumers to protect the safety of our food chain and the health of the domestic cattle herd. USDA’s rule is a bad rule that subjects consumers to a health risk that is invariably fatal. No one survives vCJD. Today we’ve sent a message to the courts about the unacceptable risks associated with USDA’s Final Rule. We hope that the court upholds the preliminary injunction issued by the Montana Court and that subsequently, USDA’s rule is stricken permanently.”

David Domina, Domina Law Group pc llo, Omaha, Nebraska represented the amici curiae in development and filing of the brief. The amici groups asserted, in the brief:

“USDA is a public health agency. It may not make rules fraught with unquantified or unverified risks. The Rule fails [federal] standards for judicial review; it is devoid of facts to support assumptions, rational connection between facts found and choices made, and reliable data consistent with other agencies’ rules. The Rule is at odds with other federal agency public health and safety decisional methods. It favors foreign over domestic interests. It subjects American cattlemen and consumers to risks with no reward. Its very nature begs the question unanswered by USDA: Why take the admitted BSE (bovine spongiform encephalopathy) risk?” “The Rule is unprecedented in creating a ‘minimal-risk region’ covering Canada. The ‘minimal-risk region’ designation allows cattle imports from a known BSE region that ‘took additional mitigation measures (not defined by USDA), as necessary (not defined), following a BSE outbreak based on risk analysis (no method is described by USDA) of the outbreak’.”

“The Rule’s justification is populated with faith-based, nonscientific words, e.g. ‘likely’ (used 109 times), ‘expect’ (96 uses), ‘possible or possibly’ (103 uses), ‘could’ (90 uses), ‘assume’ (58 uses). The Rule lacks precision, methodology, objectivity and science. The Rule’s terms are the stuff of speculation; not the data of science. Science is organized knowledge. USDA’s Rule has none of it.

“The challenged Rule occupies lonely space as an overt weak link in the regulation of matters impacting public health. It regulates out of belief, not science. And, the Rule does so arbitrarily in the face of a known risk. If BSE is vectored into this nation, thousands of cattle producers, millions of cattle, tens of millions of people and billions of dollars are at risk. The countervailing ‘reward’ for this risk is not expressed in this Rule.”

“Canada found four BSE-positives among less than 40,000 head tested, all in Alberta. This rate is above two per million, and similar to Europe’s; cattle from Europe cannot come here. An opened border means 1.7 million cattle per year will enter the U.S. - a near statistical certainty BSE will reach the U.S. in one year.”

“This brief is funded primarily through CCMP voluntary collections, which are producer dollars at work for producers, representing producer interests” noted Knuppe. “This brief is tangible evidence for cattlemen everywhere about how their contributions are being used to promote and protect their industry and marketplace. We cannot recklessly disregard consumer preferences in protecting confidence in the food supply. If producers haven’t signed up for CCMP, they should do so now.”

The brief may be viewed in its entirety at www.competitivemarkets.com.

CCMP is a voluntary cattle producer contribution program operated by the Organization for Competitive Markets, R-CALF USA, South Dakota Stockgrowers Assn, Montana Cattlemen’s Assn, Independent Cattlemen of Nebraska, Oregon Livestock Producers Assn, and Cattle Producers of Washington. It supports fair, open and competitive markets; realistic international trade policies; and promotion of USA raised beef.

October, 2007
David A. DOmina

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

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