Amid reports that hundreds of people have been sickened in 10 states connected to two second cyclospora outbreaks (one of those resulting from eating McDonald’s salads), it’s important to point out that food poisoning illnesses can result in liability of these restaurants and grocery store chains.
Recently one such case, Stachulski v. Apple New England, LLC, resulted with the New Hampshire Supreme Court, which affirmed a damage award of $750,000 in favor of a plaintiff who fell ill with salmonella after consuming a hamburger at defendant restaurant. Although ultimately ending in a favorable outcome to plaintiff, it highlights some of the challenges plaintiffs in food poisoning lawsuits may face.
According to court records, 29-year-old plaintiff, an HVAC technician, based his claim on a theory of strict products liability, explaining in his complaint he had dined at the restaurant with his wife and brother-in-law in February 2014, at which time he consumed a hamburger, which he alleged to be the source of his illness. He ordered the burger medium rare, and that was the start of the nightmare. (His brother-in-law too became ill, but recovered after a few days.) Plaintiff was hospitalized for a full week in intensive care when he first became sick. Even after he was released, he was unable to work for a full year due to uncontrollable bowel movements. He was embarrassingly on the toilet dozens of times daily, suffering kidney failure, shutdown of his liver and septic infection in his blood.
Defendant franchise, however, argued the salmonella he suffered could have come from several other sources, including his pet lizard or other food sources. After the jury decided the case in favor of plaintiff, defendant appealed, arguing trial court erred by:
- Allowing unfairly prejudicial evidence to be presented by plaintiff at trial;
- Allowing plaintiff’s expert witness to testify;
- Submitting an issue of causation to jurors;
- Instructing jurors on pain and suffering damages;
- Allowing plaintiff’s council to make certain statement during opening and closing arguments;
- Denying its request for a remittitur (reduction of damages).
Appeals and supreme court affirmed.
In addition to taking issue with the reported causal link of the hamburger and plaintiff’s illness, defendant argued against plaintiff assertion (backed by 700 pages of medical records and expert witness testimony) that his lingering gastrointestinal symptoms most likely are post-infectious due to the original illness. Specifically, two years after eating that hamburger, plaintiff continues to work with doctors and nutritionists to manage his gastrointestinal symptoms, and is no longer able to consume sugar, beef, caffeine, alcohol, carbonated beverages or certain fruits and vegetables. Defense argued future pain and suffering should not have been awarded.
The trial court disagreed. Although sustaining $43,000 in past medical bills, he expects he will continue to incur bills for the rest of his life to manage his condition. He expects he’ll receive approximately $350,000 total once his attorneys, doctors and (now)ex-wife receive their share.
In the more recent cases, the U.S. Centers for Disease Control and Prevention report 237 cases of cyclosporiasis among those who consumed veggie trays under the brand name Del Monte Fresh in four states, as well as 163 people in 10 states sickened by McDonald’s salads. There is evidence to suggest the two incidents are related. Cyclospora is a parasite causing intestinal illness and is the result of consuming contaminated food or water.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
More people sickened by parasite in outbreak linked to McDonald’s salads, July 19, 2018, By Emanuella Grinberg, CNN
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