‘Why doesn’t Amos Miller just go get a permit?’ Lancaster County judge asks in food safety case

• By Dan Nephin/LNP | LancasterOnline

After three hours of testimony from food safety experts and customers who spoke about what Amos Miller’s raw milk does for their health, Lancaster County Judge Thomas Sponaugle had one question.

“Why doesn’t Amos Miller just go get a permit … just like every other Amish farmer in the county and commonwealth does if they want to sell raw milk?” Sponaugle’s question was directed at Miller’s attorney, Robert E. Barnes, and came at the conclusion of Thursday’s hearing.

The hearing was on the narrow question of whether Sponaugle should extend an injunction stopping Miller from producing and selling raw milk and products while a state Department of Agriculture lawsuit against him plays out.

The department sued Miller on Jan. 24, saying his business doesn’t have permits to sell raw milk or raw cheese, nor does it have a required retail license. The lawsuit followed a Jan. 4 raid on Miller’s farm in Upper Leacock Township, which in turn was prompted by two illnesses late last year, one in New York and one in Michigan, traced to Miller’s raw eggnog.

Sponaugle jokingly suggested that were Miller to apply for a permit, prosecutors would, if the judge asked nicely, make sure Miller’s request was moved to the top of the pile.

Barnes, in response, said obtaining the permits would mean that Miller could not sell his other raw milk products, such as butter, soft-cheeses (Pennsylvania only permits hard cheeses), kefir and colostrum — the first substance produced by mammary glands after giving birth — because Pennsylvania doesn’t allow their sales.

Barnes said Miller’s position is that the Agriculture Department is incorrect in its interpretation of what can be sold. And if Sponaugle were to grant the department its injunction request, Miller would be out of business in months and his customers who rely on his food would be harmed.

Sponaugle did not issue a ruling Thursday, opting instead to declare a recess so he could talk in chambers with Barnes and Deputy Attorney General Kelly Heather about potential resolutions.

Heather said all the state needed to prove to get an injunction is that Miller is engaged in illegal activity, which it has shown.

Though the hearing was on a narrow legal question, it drew dozens of Miller’s supporters, providing further evidence that Miller has become a cause celebre for those who accuse the government of overreach and tyranny related to food choice and safety.

Supporters on the stand

Ahead of the 1:30 p.m. hearing, a handful of people waited outside Sponaugle’s courtroom, but that grew to dozens just before the courtroom was opened.

Only about 50 or so people, many of them Amish, were allowed inside, filling the gallery and jury box. Dozens more waited outside the courtroom.

At the outset of the hearing, Sponaugle set the tone:

“It is not the trial judge’s job to legislate from the bench,” he said, saying he would “call it as I see it. I’m not here to change the law or manipulate the law to get the outcome someone wants.”

Sponaugle said he read all 354 declarations submitted ahead of the hearing by Miller’s customers living across the country.

Still, he allowed several people to testify Thursday.

Ashley Dalidowitz, of North Carolina, testified that a nutritionist recommended raw milk to help her son with his autism. Within two weeks, she testified, “he was a different kid.”

He even stopped riding his bike into the street, Dalidowitz testified. Within about six months, she said, his occupational and speech therapists discharged him.

During cross-examination, Heather asked if Dalidowitz had been notified by Miller that nearly 25% of his products collected and sampled during the January search tested positive for listeria. Dalidowitz said she didn’t recall the exact details, but agreed she received a notice from Miller with some information about listeria.

Heather then asked Dalidowitz if she was concerned that listeria can cause miscarriage in pregnant women?

“I am pregnant and I am not concerned with drinking raw milk,” Dalidowitz said, standing up at the witness stand and showing off her belly.

Government’s witnesses

Nicole Martz, chief of the agriculture department’s food safety division, testified that during the Jan. 4 search of Miller’s farm, she saw a worker filling a bottle of raw milk from a larger container and capping it with his bare hands.

Martz said she saw food utensils making contact with the floor and wall, a bulk-milk tanker that was not licensed or inspected, as required, hoses to transfer milk were lying on the ground, and there were boots along a wall inside the production area with dirt and manure on them.

Martz also said she saw no cleaning products or sanitizers. “The only washing we observed was rinsing off equipment with a garden-style hose,” she said.

Martz said an employee dumped a tank before they could take a sample.

Kelly Kline, an epidemiologist with the state, testified about the illnesses from New York and Michigan linked to Miller’s farm.

One case involved a 16-year-old New York state boy who had bloody diarrhea and abdominal cramping after drinking eggnog from Miller’s farm. New York health officials tested leftover eggnog and found E. coli in it. The other case, in Michigan, also involved a child sickened by E. coli, whose parents got milk from Miller’s farm.

Kline testified that, through a federal government database, she learned of a person in Texas who had a bloodstream infection from E.coli that was a genetic match to samples tested at Miller’s farm. The patient, however, refused to answer questions about whether products from Miller were involved.

Under cross examination, both Kline, Martz and another agriculture employee, said they were unaware of any of Miller’s customers in Pennsylvania ever complaining about his food.

Margaret Coleman, a microbiologist hired by Miller’s defense who worked for the U.S. Department of Agriculture for 16 years, testified that she believes raw milk is less risky than pasteurized milk.

Coleman also disputed the link between the New York and Michigan E. coli cases and the Texas case, despite their genetic relationship. The E. coli could have come from some other source, Coleman said.

“Related is related. It does not mean the same source,” Coleman said.

Under cross examination by Heather, who told Coleman of the sanitary conditions found at Miller’s farm, Coleman said they were not best practices but that she would probably consume most of the milk or other products sold by the farm, except for anything that was stored or packaged near the boots with what Heather called organic matter.

Miller is under a consent decree with the federal government that resolved a years-long battle over federal meat inspection laws. The parties resolved the dispute by early 2023, with Miller paying fines and costs of about $85,000, though a consent decree remains in effect.

That decree requires him to follow state regulations.