SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO

Transcription

1 William D. Marler, WSBA #17233 MARLER CLARK, LLP PS 701 First Avenue, Suite 6600 Seattle, WA Tel. (206) Fax (206) Terry O Reilly (CA Bar No ) O REILLY COLLINS 1900 O Farrell St., Suite 360 San Mateo, CA Tel: (650) Fax: (650) Attorneys for the plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO JILLIAN J. COLLINS ) ) Plaintiff, ) NO. ) v. ) Complaint for Damages ) NESTLE USA, INC., ) ) Defendant. ) ) COMPLAINT FOR DAMAGES COMES NOW the plaintiff, by and through her attorneys of record, Terry O Reilly of O Reilly Collins, and William D. Marler, Marler Clark, L.L.P., P.S., and allege as follows: COMPLAINT FOR DAMAGES Page - 1

2 I. PARTIES 1. The plaintiff JILLIAN J. COLLINS is a resident of San Mateo, San Mateo County, California. 2. The defendant, NESTLE USA, INC. (NESTLE), is a Delaware corporation, organized under the laws of the state of Delaware with its principal place of business located at 800 North Brand Boulevard, Glendale, California. 3. At all times relevant hereto, Nestle was a manufacturer and seller of various cookie dough products that are sold throughout the United States, including in the State of California. II. JURISDICTION AND VENUE 4. This Court is vested with jurisdiction over the defendant because the defendant resides or purports to have its principal places of business located within the State of California, and the events alleged herein occurred in the State of California 5. The venue of this action is proper in the County of San Mateo because the personal injury damages sustained by plaintiff as alleged herein occurred in the County of San Mateo. III. GENERAL ALLEGATIONS Nestle E. coli O157:H7 Outbreak 6. On June 18, 2009, the defendant Nestle announced a voluntary product recall after it was notified by the United States Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) of a possible link between reported illnesses caused by E. coli O157:H7 and the consumption of Nestle-brand raw cookie dough. COMPLAINT FOR DAMAGES Page - 2

3 7. As of June 19, 2009, 65 persons infected with a genetically indistinguishable strain of E. coli O157:H7 have been reported from 29 states. To date, 25 persons have been hospitalized and 7 have developed hemolytic uremic syndrome (HUS). Plaintiff's Injuries 8. At various times on May 20 and May 22, 2009, the plaintiff Jillian Collins consumed cookie dough that had been manufactured and sold by the defendant Nestle. On May 25, 2009, Jillian Collins began to suffer from painful gastrointestinal symptoms, including nausea and abdominal cramps, which worsened to the point that, on May 26, 2009, she was taken to urgent care for medical treatment. By this time, her bouts of diarrhea had turned bloody and her abdominal pain had become severe. 9. Jillian Collins was ultimately hospitalized for seven days at Stanford University Medical Center, Stanford CA. During her hospitalization, an endoscopic biopsy was obtained and cultured, testing positive for E. coli O157:H As of the filing of this Complaint, Jillian Collins continues to recover from the effects of her E. coli O157:H7 infection. 11. The plaintiff has incurred and will continue to incur medical expenses, has suffered and will continue to suffer pain, loss of enjoyment of life, emotional distress, and medical problems in the future as a direct and proximate result of her consumption of contaminated Nestle cookie dough. IV. CAUSES OF ACTION Strict Liability Count I 12. The defendant Nestle was at all times relevant hereto the manufacturer and seller of the adulterated food product that is the subject of this action. COMPLAINT FOR DAMAGES Page - 3

4 13. The adulterated food product that defendant Nestle manufactured, distributed, and sold was, at the time it left the defendant s control, defective and unreasonably dangerous for its ordinary and expected use because it contained E. coli O157:H7, a deadly pathogen. 14. The adulterated food product that the defendant Nestle manufactured, distributed, and sold was delivered to the plaintiff without any change in its defective condition. The adulterated food product that the defendant manufactured, distributed, and sold was used in the manner expected and intended, and was consumed by the plaintiff. 15. The defendant Nestle owed a duty of care to the plaintiff to design, manufacture, and sell food that was not adulterated, that was fit for human consumption, that was reasonably safe in construction, and that was free of pathogenic bacteria or other substances injurious to human health. The defendant Nestle breached this duty. 16. The defendant Nestle owed a duty of care to the plaintiff to design, prepare, serve, and sell food that was fit for human consumption, and that was safe to the extent contemplated by a reasonable consumer. The defendant Nestle breached this duty. 17. The plaintiff suffered injury and damages as a direct and proximate result of the defective and unreasonably dangerous condition of the adulterated food product that the defendant manufactured, distributed, and sold. Breach of Warranty Count II 18. The defendant Nestle is liable to the plaintiff for breaching express and implied warranties it made regarding the adulterated product that the plaintiff purchased. These express and implied warranties included the implied warranties of merchantability and fitness for a particular use. Specifically, the defendant Nestle expressly warranted, through its sale of food to the public and by the statements and conduct of its employees and agents, that the food it COMPLAINT FOR DAMAGES Page - 4

5 prepared and sold was fit for human consumption and not otherwise adulterated or injurious to health. 19. The plaintiff alleges that the E. coli O157:H7-contaminated food that defendant Nestle sold to the plaintiff would not pass without exception in the trade and was therefore in breach of the implied warranty of merchantability. 20. The plaintiff alleges that the E. coli O157:H7-contaminated food that the defendant Nestle sold to the plaintiffs was not fit for the uses and purposes intended, i.e. human consumption, and that this product was therefore in breach of the implied warranty of fitness for its intended use. 21. As a direct and proximate cause of the defendant Nestle s breach of warranties, as set forth above, the plaintiff sustained injuries and damages in an amount to be determined at trial. Negligence Count III 22. The defendant Nestle owed a duty to the plaintiff to use reasonable care in the manufacture, distribution, and sale of its food products, the observance of which duty would have prevented or eliminated the risk that the defendant Nestle s food products would become contaminated with E. coli O157:H7 or any other dangerous pathogen. The defendant Nestle breached this duty. 23. The defendant Nestle owed a duty to the plaintiff to comply with all statutes, laws, regulations, and safety codes pertaining to the manufacture, distribution, storage, and sale of its food product, but failed to observe this duty, and was therefore negligent. The plaintiff is among the class of persons designed and intended to be protected by these statutes, laws, COMPLAINT FOR DAMAGES Page - 5

6 regulations, safety codes and provisions pertaining to the manufacture, distribution, storage, and sale of similar food products. 24. The defendant Nestle owed a duty to the plaintiff to properly supervise, train, and monitor its employees, and to ensure compliance with all applicable statutes, laws, regulations, and safety codes pertaining to the manufacture, distribution, storage, and sale of similar food products. Nestle failed to observe this duty as well, and was therefore negligent. 25. The defendant Nestle owed a duty to the plaintiff to use ingredients, supplies, and other constituent materials that were reasonably safe, wholesome, free of defects and that otherwise complied with applicable federal, state, and local laws, ordinances, and regulations, and that were clean, free from adulteration, and safe for human consumption. Nestle failed to observe this duty as well, and was therefore negligent. 26. As a direct and proximate result of the defendant Nestle s several acts of negligence, the plaintiff sustained injuries and damages in an amount to be determined at trial. Negligence Per Se Count IV 27. The defendant Nestle had a duty to comply with all applicable state and federal regulations intended to ensure the purity and safety of its food products, including the requirements of the Federal Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.), and the California adulterated food statutes. 28. The defendant Nestle failed to comply with the provisions of the health and safety acts identified above, and, as a result, was negligent per se in its manufacture, distribution, and sale of food adulterated with E. coli O157:H7, a deadly pathogen. COMPLAINT FOR DAMAGES Page - 6

7 29. As a direct and proximate result of conduct by the defendant Nestle that was negligent per se, the plaintiff sustained injury and damages in an amount to be determined at trial. PRAYER FOR RELIEF WHEREFORE, plaintiffs pray damages against defendants, and each of them, as follows: A. For general damages according to proof; B. For special damages according to proof; C. For costs of suit incurred herein; D. For prejudgment interest; and E. For such other and further relief as the Court deems proper. By: Terry O Reilly (CA Bar No ) toreilly@oreillylaw.com O Reilly Collins 1900 O Farrell St., Suite 360 San Mateo, CA Tel: (650) Fax: (650) William D. Marler, WSBA #17233 bmarler@marlerclark.com MARLER CLARK, LLP PS 701 First Avenue, Suite 6600 Seattle, WA Tel. (206) Fax (206) (pending admission pro hac vice) COMPLAINT FOR DAMAGES Page - 7

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