IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

Transcription

1 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA JAMES ORCHARD and MAUREEN ORCHARD, Plaintiffs, CIVIL DIVISION Case No. v. PASTURE MAID CREAMERY, L.L.c., a Pennsylvania limited liability company, ADAM DEAN, individually and t/d/b/a DEAN FARM; PHILIP DEAN, individually and t/d/b/a DEAN FARM; CINDY DEAN, individually and t/d/b/a DEAN FARM, and MCGINNIS FOOD CENTER, INC., t/d/b/a MCGINNIS SISTERS SPECIAL FOOD STORES, a Pennsylvania corporation, COMPLAINT IN CIVIL ACTION Defendants. Filed on behalf of: Plaintiffs Counsel of Record for this Party: Patrick J. Loughren, Esquire PA J.D. #80449 Loughren, Loughren & Loughren, P.c. 310 Grant Street Suite 2800 Grant Building Pittsburgh, Pennsylvania (412) JURY TRIAL DEMANDED

2 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA JAMES ORCHARD and MAUREEN ORCHARD, Plaintiffs, CIVIL DIVISION Case No. v. PASTURE MAID CREAMERY, L.L.c., a Pennsylvania limited liability company, ADAM DEAN, individually and t/dlb/a DEAN FARM; PHILIP DEAN, individually and t/dib/a DEAN FARM; CINDY DEAN, individually and t/dlb/a DEAN FARM, and MCGINNIS FOOD CENTER, INC., t/dib/a MCGINNIS SISTERS SPECIAL FOOD STORES, a Pennsylvania corporation, Defendants. NOTICE TO DEFEND You have been sued in court. Ifyou wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses and objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you buy the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property ofother rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE ALAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMAnON ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMAnON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers' Referral Service Allegheny County Bar Association 920 City County Building Pittsburgh, PA (412)

3 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA JAMES ORCHARD and MAUREEN ORCHARD, Plaintiffs, CIVIL DIVISION Case No. v. PASTURE MAID CREAMERY, L.L.C., a Pennsylvania limited liability company, ADAM DEAN, individually and t/dlb/a DEAN FARM; PHILIP DEAN, individually and t/dlb/a DEAN FARM; CINDY DEAN, individually and t/d!b/a DEAN FARM, and MCGINNIS FOOD CENTER, INC., t/d!b/a MCGINNIS SISTERS SPECIAL FOOD STORES, a Pennsylvania corporation, Defendants. COMPLAINT IN CIVIL ACTION AND NOW, come the plaintiffs, JAMES ORCHARD and MAUREEN ORCHARD, by and through their attorneys Patrick J. Loughren, Esquire and Loughren, Loughren & Loughren, P.C. and file the within Complaint in Civil Action and in support thereof avers as follows: The Parties 1. At all times material hereto, plaintiff James Orchard was an adult individual residing at 107 Tindall Road, Mars, Pennsylvania and married to plaintiff Maureen Orchard. 2. At all times material hereto, plaintiff Maureen Orchard was an adult individual residing at 107 Tindall Road, Mars, Pennsylvania and married to plaintiffjames Orchard. 3

4 3. At all times material hereto, defendant Pasture Maid Creamery, L.L.C., (hereinafter "Pasture Maid") was a Pennsylvania limited liability corporation in the business of producing, distributing, marketing and selling raw milk. Pasture Maid's principal place of business is located at 571 Cow Path Lane, New Castle, Pennsylvania Upon information and belief, defendant Adam Dean was an adult individual residing at 547 Cow Path Lane, New Castle, Pennsylvania Adam Dean trades and does business as "Dean Farms" and is in the business of producing, distributing, marketing and selling raw milk and other raw milk products. Adam Dean is also the president of Pasture Maid which he owns, operates and controls. 5. Upon information and belief, defendant Philip Dean was an adult individual residing at 547 Cow Path Lane, New Castle, Pennsylvania Philip Dean trades and does business as "Dean Farm" and is in the business of producing, distributing, marketing and selling raw milk and other raw milk products. Philip Dean and his wife Cindy Dean own the property and cows used to produce raw milk sold under the Pasture Maid brand. 6. Upon information and belief, defendant Cindy Dean was an adult individual residing at 547 Cow Path Lane, New Castle, Pennsylvania Cindy Dean trades and does business as "Dean Farm" and is in the business of producing, distributing, marketing and selling raw milk and other raw milk products. Cindy Dean and her husband Philip Dean own the property and cows used to produce raw milk sold under the Pasture Maid brand. 7. Upon information and belief, defendants Pasture Maid, Adam Dean, Philip Dean and Cindy Dean jointly participated in the design, manufacture, marketing and sale of raw milk to the public, including but not limited to, maintaining the farm and milking parlor; maintaining all farm and milking equipment; training and supervising farm employees; caring for and treating 4

5 the cows; milking; product storage; product bottling; product distribution; and product marketing and promotion. 8. Upon information and belief, defendants Pasture Maid, Adam Dean, Philip Dean and Cindy Dean were involved in a joint venture and common enterprise, with equal rights to control and share in the proceeds, to develop, manufacture, market and sell raw milk products. As a result defendants are all individually, jointly and severally liable for the acts and omissions of one another. 9. Upon information and belief, defendants Pasture Maid, Adam Dean, Philip Dean and Cindy Dean were at all relevant times each acting as the agent or employee of the others pursuant to an agreement whereby each principal authorized each agent to act on its behalf and subject to its direction and control. At all relevant times, the acts of Pasture Maid, Adam Dean, Philip Dean and Cindy Dean were within the scope of their agency and employment and all acts, omissions and breaches of each are attributable to the others and Pasture Maid, Adam Dean, Philip Dean and Cindy Dean are all liable for all damages resulting therefrom. In the alternative, Pasture Maid, Adam Dean, Philip Dean and Cindy Dean are collectively liable for the acts and omissions of the other defendants through the doctrine of respondeat superior. As a result of the relationships among Pasture Maid, Adam Dean, Philip Dean and Cindy Dean all are individually, jointly and severally liable for all damages alleged in this complaint. In all instances where it is alleged that defendants had knowledge of certain facts or events, defendants acquired such knowledge directly or such knowledge is imputed to all defendants as a result of the actual knowledge acquired by their agents, officers and directors. Defendants Pasture Maid, Adam Dean, Philip Dean and Cindy Dean are collectively referred to herein as the "Pasture Maid defendants." 5

6 10. Upon information and belief, defendant McGinnis Food Center, Inc., which trades and does business under the fictitious name McGinnis Sisters Special Food Stores (hereinafter "McGinnis Food Center"), is in the retail food business and operates retail food stores in the Pittsburgh area, including a store located at 700 Adams Shoppes, Mars, Pennsylvania. McGinnis Food Center's principal place ofbusiness is located at 3825 Saw Mill Run Boulevard, Pittsburgh, Pennsylvania The Facts 11. The Pasture Maid defendants produced, bottled and sold raw (unpasteurized) milk on its premises and also produced, bottled and sold raw milk to various retailers, including defendant McGinnis Food Center. The milk was sold under the "Pasture Maid Creamery" brand. 12. Defendant McGinnis Food Center sold the raw milk it purchased from the Pasture Maid defendants to members of the public, including the plaintiffs, at its retail store in Mars, Pennsylvania. 13. Raw milk is a dangerous product and consists of milk from cows, sheep, or goats that has not been pasteurized to kill harmful bacteria. This raw, unpasteurized milk can carry dangerous bacteria such as Salmonella, E. coli 0157:H7, Campylobacter, and Listeria, which are responsible for causing numerous foodbome illnesses. 14. According to the Centers for Disease Control and Prevention, more than 800 people in the United States have been sickened from drinking raw milk or eating cheese made from raw milk since The harmful bacteria in raw milk can seriously affect the health of anyone who drinks it or who eats foods made from raw milk. However, the bacteria in raw milk can be 6

7 especially dangerous to pregnant women, children, the elderly, and people with weakened immune systems. 16. Campylobacter is the name of a genus of a spiral-shaped bacteria found primarily in the intestines of animals. One type of Campylobacter bacteria, Campylobacter jejuni, causes an illness in humans called campylobacteriosis. Humans contract campylobacteriosis when they ingest contaminated animal feces. Raw milk is one of the foods at risk for Campylobacter contamination. 17. Campylobacteriosis can cause a serious condition called Guillain-Barre syndrome (GBS). GBS often leads to acute neuromuscular paralysis, a frightful and potentially lethal condition characterized by the absence of sensation and movement and the need for artificial respiration Campylobacter Contamination of Pasture Maid's Milk 18. In early 2009, individuals who consumed raw milk purchased from and produced by the Pasture Maid defendants were found to have gastrointestinal illness caused by Campylobacter. 19. On February 20, 2009, the Pennsylvania State Health Secretary advised consumers who purchased raw milk from the Pasture Maid defendants to immediately discard the raw milk due to potential bacterial contamination. 20. On February 20,2009, the Pennsylvania Department of Health recommended that the Pasture Maid defendants stop selling raw milk for human consumption. The Pasture Maid defendants agreed at that time to temporarily stop selling raw milk. 21. On February 26, 2009, the Pasture Maid defendants resumed milk sales following some negative test results for Campylobacter contamination. 7

8 22. Despite the outbreak and the suspension of sales, the Pasture Maid defendants continued to claim their raw milk products were safe and that their raw milk products did not contain Campylobacter Campylobacter Contamination of Pasture Maid's Milk 23. Upon information and belief, in early 2010, the Pennsylvania Departments of Agriculture and Health began investigating another outbreak of campylobacteriosis associated with raw milk produced by the Pasture Maid defendants. 24. On March 1, 2010, representatives of the Pennsylvania Departments of Agriculture and Health informed the Pasture Maid defendants that their products were currently being investigated as a source of campylobacteriosis. 25. Shortly before March 25, 2010, a Pennsylvania Department of Health laboratory found Campylobacter bacteria in a raw milk sample taken from milk produced by the Pasture Maid defendants. 26. On March 25, 2010, the Pennsylvania Departments of Agriculture and Health advised consumers who had purchased Pasture Maid brand raw milk to discard the product immediately because ofpotential bacterial contamination. 27. On March 25, 2010, the Pennsylvania Departments of Agriculture and Health recommended that the Pasture Maid defendants stop selling raw milk for human consumption. 28. Upon information and belief, despite the March 25, 2010, advisory and recommendation by the Pennsylvania Departments of Agriculture and Health, the Pasture Maid defendants disputed that its raw milk was contaminated and refused to voluntarily cease sales of raw milk. 8

9 29. On March 26, 2010, the Department of Agriculture laboratory confirmed that additional samples of raw milk collected from Pasture Maid brand raw milk contained Campylobacter. 30. On April 5, 2010, the Pennsylvania Department of Agriculture suspended the Pasture Maid defendants' permit to sell raw milk for human consumption. 31. Despite the positive test results and the suspension of its permit to sell raw milk, the Pasture Maid defendants continue to claim their raw milk products are safe; that its raw milk products did not contain Campylobacter; and that the Pennsylvania Departments of Agriculture and Health did not follow appropriate procedures in investigating its raw milk products. 32. Defendant Adam Dean continues to claim that Pasture Maid raw milk products are "clean" and diseases associated with raw milk "are no longer a threat in real milk" produced by Pasture Maid. McGinnis Food Center's Sale of Pasture Maid Milk 33. In 2007, defendant McGinnis Food Center began selling raw milk at its store in Brentwood, Pennsylvania. 34. Within two days of selling raw milk at its Brentwood store, defendant McGinnis Food Center was ordered to cease selling raw milk because McGinnis Food Center had not obtained the requisite variance to a county law limiting raw milk sales to farmers. 35. In 2007, the illegal sale of raw milk by McGinnis Food Center prompted a spokesman for the Allegheny County Health Department to compare consuming raw milk to consuming raw or undercooked meat or seafood. The spokesman went on to say "We don't like to encourage this...we feel there is an increased risk of foodbome illness, especially in certain populations," including pregnant women and young children. 9

10 36. Despite the warnings and the risks associated with raw milk, McGinnis Food Center made arrangements to sell Pasture Maid brand raw milk products at its store in Mars, Pennsylvania. 37. Before and even after both the 2009 Campylobacter outbreak and the 2010 suspension of Pasture Maid's permit to sell raw milk, McGinnis Food Center touted the safety of the Pasture Maid's raw milk products. For example, on its web pages, McGinnis Food Center states: "We work exclusively with Adam Dean of Pasture Made Creamery (sic) in New Castle, Pennsylvania for our Raw Milk. Adam is the fifth generation to take part of the operations at Pasture Made Creamery (sic), a dairy farm that was founded in Adam only uses Holsteins cows on his 500 acre farm. Holsteins have a very high butterfat content in their milk. Holstein milk is not only very high in vitamins A and D but is also very rich in short and medium fatty acids. Only around 60 of Adam's cows are milked on a daily basis. By rotating the cows it keeps the them (sic) healthy, happy and hormone-free so they are able to produce quality milk." Campylobacter Infections of James and Maureen Orchard 38. On or about March 16,2010, plaintiff Maureen Orchard purchased two bottles of Pasture Maid raw milk from the McGinnis Food Center store in Mars, Pennsylvania. 39. The bottles of Pasture Maid raw milk purchased by Maureen Orchard contained no warnmgs. The labeling includes only the words "Pasture Maid Dairy Creamery...New Castle, PA " It also contained a date on the cap. 40. On or shortly after March 16, 2010, the plaintiff James Orchard drank the milk produced by Pasture Maid and sold by the McGinnis Food Center. Within a short period of time, James Orchard began to experience signs of gastrointestinal illness. 10

11 41. Following the onset of his symptoms, James Orchard's condition deteriorated to the point that he required medical care and hospitalization. 42. Doctors ordered a stool sample from James Orchard and tested it. The test results were positive for Campylobacter. 43. As a result of the positive Campylobacter test from James Orchard's stool, the milk remaining in the bottle purchased by Maureen Orchard and consumed by James Orchard was tested. This sample from the raw milk bottle produced by the Pasture Maid defendants also tested positive for Campylobacter. 44. As a result of contracting Campylobacter from milk produced by the Pasture Maid defendants and sold by the McGinnis Food Center, Plaintiff James Orchard began to experience a loss of sensation and movement and subsequently became totally paralyzed except for minimal movement of his head and the ability to blink his eyes. He was admitted to the intensive care unit of the hospital and placed on ventilation which he requires for all respiration. He remains largely paralyzed. He requires round-the-clock intensive care. 45. On or shortly after March 16, 2010, plaintiff Maureen Orchard also drank the milk produced by the Pasture Maid defendants and sold by the McGinnis Food Center. Within a short period of time, Maureen Orchard began to experience signs of gastrointestinal illness. 46. Following the onset of her symptoms, Maureen Orchard's condition deteriorated to the point that she required medical care and attention. 47. Doctors ordered a stool sample from Maureen Orchard and tested it. The test results were positive for Campylobacter. 11

12 48. Solely as a direct and proximate result of the defendants' negligence, breach of warranties and production and sale of defective and unreasonably dangerous milk, James Orchard suffered and will continue to suffer the following injuries and damages: a. He contracted campylobacteriosis with extreme gastrointestinal pam and discomfort; b. His condition developed into the nervous system disorder known as Guillain-Barre syndrome, resulting in nearly total paralysis and intensive medical treatment; c. He has suffered and will continue to suffer indefinitely into the future great pain, emotional distress, suffering, inconvenience, mental anguish, depression, humiliation and embarrassment; d. He has lost the ability to enjoy the ordinary pleasures of life, which will continue into the future; e. His general health, strength and vitality have been, and will continue to be impaired; f. He has suffered a loss of earnings, and will continue to experience a loss of earnings in the future - his earning capacity has been diminished; and, g. He has been in the past, and will continue to be in the future, required to expend large sums of money for comprehensive surgical, medical and rehabilitative care, hospitalization, medical supplies, surgical appliances, medicines, and attendant services. 49. Solely as a proximate result of the defendants' negligence, breach of warranties and production and sale of a defective and unreasonably dangerous product, Maureen Orchard suffered the following injuries and damages: a. Campylobacteriosis with extreme gastrointestinal pain and discomfort; b. She has suffered great pain, emotional distress, suffering, inconvenience, mental anguish, depression, humiliation and embarrassment; c. She lost the ability to enjoy the ordinary pleasures oflife; d. Her general health, strength and vitality have been, and will continue to be impaired; 12

13 e. She has expended large sums of money for medical and rehabilitative care, medical supplies, surgical appliances, medicines, and attendant services. CLAIMS FOR RELIEF COUNT I NEGLIGENCE (James Orchard v. Pasture Maid) 50. Plaintiff James Orchard realleges and incorporates by reference paragraphs numbered 1 to Pasture Maid had a duty to use reasonable care in the production, packaging, supplying, labeling, marketing, selling of and otherwise distributing their milk products. 52. Pasture Maid, its employees, agents or those acting on their behalf, breached that duty by committing one or more of the following acts of negligence: a. Failing to design and implement a reasonably safe manufacturing system to prevent the introduction of pathogens, including Campylobacter, into milk sold as ready for human consumption, including but not limited to: the failure to properly manage manure in and around the dairy; the failure to properly clean and monitor cow bedding, housing and pastures to prevent contaminants, including Campylobacter, from entering the milking parlor; failure to keep cow udders and teats clean, dry and free of contaminants, including Campylobacter; failing to use an adequate teat sanitizer; failing to clean and sanitize equipment; failing to adopt and adhere to an adequate maintenance and sanitation schedule for milking equipment; failing to ensure the cleanliness of milkers and other foodworkers; failing to use an adequate system of mechanical capping of raw milk bottles; and failure to provide sufficient refrigeration; b. Failing to establish, implement and follow adequate safety systems including but not limited to appropriate Good Manufacturing Practices, Hazard Analysis and Critical Control Point plans, and standard operating procedures; c. Failing to adequately and properly test and inspect their raw milk products to ascertain whether they were safe and proper for immediate human consumption - the purpose for which they were designed, manufactured and sold; 13

14 d. Failing to analyze and change production techniques and protocols after the 2009 Campylobacter outbreak linked to Pasture Maid milk; e. Failing to recall product, cease production, or change warning labels, notify consumers, or investigate after the March 1, 2010 notice from the Pennsylvania Department of Agriculture about potential contamination; f. Failing to adequately warn consumers of the dangers of raw milk generally and failing to adequately warn consumers of the risk of Campylobacter contamination as ofmarch 1,2010; and, g. Such other negligent acts or omissions as may be identified prior to trial. 53. In addition to the acts or omissions set forth above, defendant Pasture Maid had a duty to comply with applicable milk safety laws in the Commonwealth of Pennsylvania, including but not limited to 7 Pa. Code 59 et seq., which provides that milk produced and sold in the Commonwealth of Pennsylvania be free of all substances not normally found therein. By producing and selling milk adulterated with Campylobacter, a deadly pathogen not normally found in milk, defendant Pasture Maid violated 7 Pa. Code and Such conduct constitutes negligence per se. 54. In committing one or more of the acts or omissions set forth above, Pasture Maid breached their duty of care to James Orchard, and as a direct and proximate result thereof, caused James Orchard to contract a severe and life-threatening illness. 55. As a direct and proximate result of Pasture Maid's wrongful and negligent conduct, plaintiffjames Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 14

15 WHEREFORE, in consideration ofthe foregoing, plaintiffrespectfully prays that this COUNT II NEGLIGENCE (James Orchard v. Adam Dean) 56. Plaintiff James Orchard realleges and incorporates by reference the preceding paragraphs numbered 1 to Adam Dean had a duty to use reasonable care in the production, packaging, supplying, labeling, marketing, selling and otherwise distributing of the milk products sold under the Pasture Maid brand. 58. Adam Dean, his employees, agents or those acting on their behalf, breached that duty by committing one or more of the following acts of negligence: a. Failing to design and implement a reasonably safe manufacturing system to prevent the introduction of pathogens, including Campylobacter, into milk sold as ready for human consumption, including but not limited to: the failure to properly manage manure in and around the dairy; the failure to properly clean and monitor cow bedding, housing and pastures to prevent contaminants, including Campylobacter, from entering the milking parlor; failure to keep cow udders and teats clean, dry and free of contaminants, including Campylobacter; failing to use an adequate teat sanitizer; failing to clean and sanitize equipment; failing to adopt and adhere to an adequate maintenance and sanitation schedule for milking equipment; failing to ensure the cleanliness of milkers and other foodworkers; failing to use an adequate system of mechanical capping of raw milk bottles; and failure to provide sufficient refrigeration; b. Failing to establish, implement and follow adequate safety systems including but not limited to appropriate Good Manufacturing Practices, Hazard Analysis and Critical Control Point plans, and standard operating procedures; c. Failing to adequately and properly test and inspect their raw milk products to ascertain whether they were safe and proper for immediate human 15

16 consumption - the purpose for which they were designed, manufactured and sold; d. Failing to analyze and change production techniques and protocols after the 2009 campylobacter outbreak linked to Pasture Maid milk; e. Failing to recall product, cease production, change warning labels, notify consumers or investigate after the March I, 2010, notice from the Pennsylvania Department ofagriculture about potential contamination; f. Failing to adequately warn consumers of the dangers of raw milk generally and failing to adequately warn consumers of the risk of Campylobacter contamination as ofmarch 1,2010; and, g. Such other negligent acts or omissions as may be identified prior to trial. 59. In addition to the acts or omissions set forth above, defendant Adam Dean had a duty to comply with applicable milk safety laws in the Commonwealth of Pennsylvania, including but not limited to 7 Pa. Code 59 et seq., which provides that milk produced and sold in the Commonwealth of Pennsylvania be free of all substances not normally found therein. By producing and selling milk adulterated with Campylobacter, a deadly pathogen not normally found in milk, defendant Adam Dean violated 7 Pa. Code and Such conduct constitutes negligence per se. 60. In committing one or more of the acts or omissions set forth above, Adam Dean breached his duty of care to James Orchard, and as a direct and proximate result thereof, caused James Orchard to contract a severe and life-threatening illness. 61. As a direct and proximate result of Adam Dean's wrongful and negligent conduct, plaintiff James Orchard suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 16

17 WHEREFORE, in consideration of the foregoing, plaintiffs respectfully prays that this COUNT III NEGLIGENCE (James Orchard v. Philip Dean) 62. Plaintiff James Orchard realleges and incorporates by reference paragraphs numbered 1 to Philip Dean had a duty to use reasonable care in the production, packaging, supplying, labeling, marketing, selling and otherwise distributing ofthe milk products sold under the Pasture Maid brand. 64. Philip Dean, his employees, agents or those acting on their behalf, breached that duty by committing one or more of the following acts of negligence: a. Failing to design and implement a reasonably safe manufacturing system to prevent the introduction of pathogens, including Campylobacter, into milk sold as ready for human consumption, including but not limited to: the failure to properly manage manure in and around the dairy; the failure to properly clean and monitor cow bedding, housing and pastures to prevent contaminants, including Campylobacter, from entering the milking parlor; failure to keep cow udders and teats clean, dry and free of.contaminants, including Campylobacter; failing to use an adequate teat sanitizer; failing to clean and sanitize equipment; failing to adopt and adhere to an adequate maintenance and sanitation schedule for milking equipment; failing to ensure the cleanliness of milkers and other foodworkers; failing to use an adequate system of mechanical capping of raw milk bottles; and failure to provide sufficient refrigeration; b. Failing to establish, implement and follow adequate safety systems including but not limited to appropriate Good Manufacturing Practices, Hazard Analysis and Critical Control Point plans, and standard operating procedures; c. Failing to adequately and properly test and inspect their raw milk products to ascertain whether they were safe and proper for immediate human 17

18 consumption - the purpose for which they were designed, manufactured and sold; d. Failing to analyze and change production techniques and protocols after the 2009 campylobacter outbreak linked to Pasture Maid milk; e. Failing to recall product, cease production, change warning labels, notify consumers or investigate after the March 1, 2010, notice from the Pennsylvania Department ofagriculture about potential contamination; f. Failing to adequately warn consumers of the dangers of raw milk generally and failing to adequately warn consumers of the risk of Campylobacter contamination as ofmarch 1, 2010; and, g. Such other negligent acts or omissions as may be identified prior to trial. 65. In addition to the acts or omissions set forth above, defendant Philip Dean had a duty to comply with applicable milk safety laws in the Commonwealth of Pennsylvania, including but not limited to 7 Pa. Code 59 et seq., which provides that milk produced and sold in the Commonwealth of Pennsylvania be free of all substances not normally found therein. By producing and selling milk adulterated with Campylobacter, a deadly pathogen not normally found in milk, defendant Philip Dean violated 7 Pa. Code and Such conduct constitutes negligence per se. 66. In committing one or more of the acts or omissions set forth in the preceding paragraph, Philip Dean breached his duty of care to James Orchard, and as a direct and proximate result thereof, caused James Orchard to contract a severe and life-threatening illness. 67. As a direct and proximate result of Philip Dean's wrongful and negligent conduct, plaintiff James Orchard suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 18

19 WHEREFORE, in consideration ofthe foregoing, plaintiffs respectfully pray that this COUNT IV NEGLIGENCE (James Orchard v. Cindy Dean) 68. Plaintiff James Orchard realleges and incorporates by reference paragraphs numbered 1 to Cindy Dean had a duty to use reasonable care in the production, packaging, supplying, labeling, marketing, selling and otherwise distributing of the milk products sold under the Pasture Maid brand. 70. Cindy Dean, her employees, agents or those acting on her behalf, breached that duty by committing one or more of the following acts of negligence: a. Failing to design and implement a reasonably safe manufacturing system to prevent the introduction of pathogens, including Campylobacter, into milk sold as ready for human consumption, including but not limited to: the failure to properly manage manure in and around the dairy; the failure to properly clean and monitor cow bedding, housing and pastures to prevent contaminants, including Campylobacter, from entering the milking parlor; failure to keep cow udders and teats clean, dry and free of contaminants, including Campylobacter; failing to use an adequate teat sanitizer; failing to clean and sanitize equipment; failing to adopt and adhere to an adequate maintenance and sanitation schedule for milking equipment; failing to ensure the cleanliness of milkers and other foodworkers; failing to use an adequate system of mechanical capping of raw milk bottles; and failure to provide sufficient refrigeration; b. Failing to establish, implement and follow adequate safety systems including but not limited to appropriate Good Manufacturing Practices, Hazard Analysis and Critical Control Point plans, and standard operating procedures; c. Failing to adequately and properly test and inspect their raw milk products to ascertain whether they were safe and proper for immediate human 19

20 consumption - the purpose for which they were designed, manufactured and sold; d. Failing to analyze and change production techniques and protocols after the 2009 campylobacter outbreak linked to Pasture Maid milk; e. Failing to recall product, cease production, change warning labels, notify consumers or investigate after the March 1, 2010, notice from the Pennsylvania Department of Agriculture about potential contamination; f. Failing to adequately warn consumers of the dangers of raw milk generally and failing to adequately warn consumers of the risk of Campylobacter contamination as ofmarch 1,2010; and, g. Such other negligent acts or omissions as may be identified prior to trial. 71. In addition to the acts or omissions set forth above, defendant Cindy Dean had a duty to comply with applicable milk safety laws in the Commonwealth of Pennsylvania, including but not limited to 7 Pa. Code 59 et seq., which provides that milk produced and sold in the Commonwealth of Pennsylvania be free of all substances not normally found therein. By producing and selling milk adulterated with Campylobacter, a deadly pathogen not normally found in milk, defendant Pasture Maid violated 7 Pa. Code and Such conduct constitutes negligence per se. 72. In committing one or more of the acts or omissions set forth above, Cindy Dean breached her duty of care to James Orchard, and as a direct and proximate result thereof, caused James Orchard to contract a severe and life-threatening illness. 73. As a direct and proximate result of Cindy Dean's wrongful and negligent conduct, plaintiff James Orchard suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 20

21 WHEREFORE, in consideration ofthe foregoing, plaintiffs respectfully pray that this COUNT V NEGLIGENCE (James Orchard v. McGinnis Food Center) 74. Plaintiff James Orchard realleges and incorporates by reference paragraphs Defendant McGinnis Food Center knew or should have known that raw milk is a dangerous product known and well understood by sanitarians, microbiologists, epidemiologists, and regulatory officials to carry harmful pathogens that can cause injury and death in humans. 76. Defendant McGinnis Food Center knew or should have known that the dangers associated with raw milk cannot be detected and/or eliminated even with the use of routine sanitary precautions. 77. Defendant McGinnis Food Center knew or should have known that members of the public including its customers do not know of and cannot detect the dangers associated with and the pathogens in raw milk. 78. Defendant McGinnis Food Center knew or should have known on or before March 16, 2010, that raw milk produced and sold by the Pasture Maid defendants contained or was likely to contain dangerous pathogens, including Campylobacter. 79. Defendant McGinnis Food Center had a duty to use reasonable care in the selection of food products, including raw milk, and in selecting safe and sanitary vendors from which to purchase food products sold in its stores. 80. Defendant McGinnis Food Center had a duty to use reasonable care in the storage, display, labeling, marketing, promotion and sale ofmilk products at its store. 21

22 81. Defendant McGinnis Food Center, its employees, agents or those acting on its behalf, breached that duty by committing one or more ofthe following acts ofnegligence: a. Failing to properly select safe and appropriate products for sale at its stores; b. Failing to properly investigate, screen and select producers of food product sold at its stores; c. Failing to inspect and test milk received from Pasture Maid; and, d. Filing to properly warn customers, including the plaintiffs. 82. In addition to the acts or omissions set forth above, defendant McGinnis Food Center had a duty to comply with applicable milk safety laws in the Commonwealth of Pennsylvania, including but not limited to 7 Pa. Code 59 et seq., which provides that milk produced and sold in the Commonwealth of Pennsylvania be free of all substances not normally found therein. By selling producing and selling milk adulterated with Campylobacter, a deadly pathogen not normally found in milk, defendant McGinnis Food Center violated 7 Pa. Code and Such conduct constitutes negligence per se. 83. In committing one or more of the acts or omissions set forth above, defendant McGinnis Food Center breached its duty of care to James Orchard, and as a direct and proximate result thereof, caused James Orchard to contract a severe and life-threatening illness. 84. As a direct and proximate result of defendant's wrongful and negligent conduct, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 85. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and cost of suit. 22

23 COUNT VI NEGLIGENT MISREPRESENTATION (James Orchard v. Pasture Maid) 86. Plaintiff James Orchard realleges and incorporates by reference paragraphs Pasture Maid represented to the public, including plaintiffs, that the milk products sold under the Pasture Maid brand were healthy, safe and free of Campylobacter and other pathogens. Pasture Maid made these representations with the intent that the public rely on them and continue to buy Pasture Maid milk products. 88. At the time these representations were made, Pasture Maid knew or should have known ofthe risks associated with the consumption ofraw milk and knew or should have known that raw milk products produced and sold by the Pasture Maid defendants carried or were prone to carry dangerous pathogens including Campylobacter and knew or should have known that their representations were false. 89. Plaintiff purchased and consumed Pasture Maid milk in justifiable reliance on defendant's representations. 90. As a direct and proximate result of Pasture Maid's negligent misrepresentations, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT VII NEGLIGENT MISREPRESENTATION (James Orchard v. Adam Dean) 23

24 91. Plaintiff James Orchard realleges and incorporates by reference paragraphs Adam Dean represented to the public, including plaintiffs, that the milk products sold under the Pasture Maid brand were healthy, safe and free of Campylobacter and other pathogens. Adam Dean made these representations with the intent that the public rely on them and continue to buy Pasture Maid milk products. 93. At the time these representations were made, Adam Dean knew or should have known of the risks associated with the consumption of raw milk and knew or should have known that raw milk products produced and sold by the Pasture Maid defendants carried or were prone to carry dangerous pathogens including Campylobacter and knew or should have known that their representations were false. 94. Plaintiff purchased and consumed Pasture Maid milk in justifiable reliance on Adam Dean's representations. 95. As a direct and proximate result of Adam Dean's negligent misrepresentations, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. COUNT VIII NEGLIGENT MISREPRESENTATION (James Orchard v. Philip Dean) 96. Plaintiff James Orchard realleges and incorporates by reference paragraphs Philip Dean represented to the public, including plaintiffs, that the milk products sold under the Pasture Maid brand were healthy, safe and free of Campylobacter and other pathogens. Philip Dean made these representations with the intent that the public rely on them and continue to buy Pasture Maid milk products. 24

25 98. At the time these representations were made, Philip Dean knew or should have known of the risks associated with the consumption of raw milk and knew or should have known that raw milk products produced and sold by the Pasture Maid defendants carried or were prone to carry dangerous pathogens including Campylobacter and knew or should have known that their representations were false. 99. Plaintiff purchased and consumed Pasture Maid milk in justifiable reliance on Philip Dean's representations As a direct and proximate result of Philip Dean's negligent misrepresentations, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT IX NEGLIGENT MISREPRESENTATION (James Orchard v. Cindy Dean) 101. Plaintiff James Orchard realleges and incorporates by reference paragraphs Cindy Dean represented to the public, including plaintiffs, that the milk products sold under the Pasture Maid brand were healthy, safe and free of Campylobacter and other pathogens. Cindy Dean made these representations with the intent that the public rely on them and continue to buy Pasture Maid milk products. At the time these representations were made, Cindy Dean knew or should have known of the risks associated with the consumption of raw milk and knew or should have known that raw milk products produced and sold by the Pasture 25

26 Maid defendants carried or were prone to carry dangerous pathogens including Campylobacter and knew or should have known that their representations were false Plaintiff purchased and consumed Pasture Maid milk in justifiable reliance on Cindy Dean's representations As a direct and proximate result of Cindy Dean's negligent misrepresentations, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT X NEGLIGENT MISREPRESENTATION (James Orchard v. McGinnis Food Center) 105. PlaintiffJames Orchard realleges and incorporates by reference paragraphs McGinnis Food Center represented to the public, including plaintiff, that the milk products sold under the Pasture Maid brand were healthy, safe and free of Campylobacter and other pathogens. McGinnis Food Center made these representations with the intent that the public rely on them and continue to buy Pasture Maid milk products At the time these representations were made, McGinnis Food Center knew or should have known of the risks associated with the consumption of raw milk and knew or should have known that raw milk products produced and sold by the Pasture Maid defendants carried or were prone to carry dangerous pathogens including Campylobacter and knew or should have known that their representations were false. 26

27 108. Plaintiff purchased and consumed Pasture Maid milk in justifiable reliance on McGinnis Food Center's representations As a direct and proximate result of McGinnis Food Center's negligent misrepresentations, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT XI STRICT LIABILITY (James Orchard v. Pasture Maid) 110. PlaintiffJames Orchard realleges and incorporates by reference paragraphs Defendant Pasture Maid was engaged in the business of manufacturing, packaging, supplying, marketing and selling milk products Plaintiff Maureen Orchard purchased and James Orchard ingested, a milk product produced and sold by Pasture Maid and did so in the intended manner or in a reasonably foreseeable manner The milk product was expected to and did reach plaintiffs without substantial change in its condition as manufactured, packaged, supplied, marketed, distributed and sold Plaintiffs were not aware of and reasonably could not have discovered the dangerous nature of the milk products they purchased Defendant's milk product contained Campylobacter and therefore constitutes a product unreasonably dangerous for normal use due to defective manufacture. 27

28 116. As a direct and proximate result of Pasture Maid's manufacture of a defective product, plaintiffs James Orchard suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT XII STRICT LIABILITY (James Orchard v. Adam Dean) 117. Plaintiff James Orchard realleges and incorporates by reference paragraphs Adam Dean engaged in the business of manufacturing, packaging, supplying, marketing and selling milk products Plaintiff Maureen Orchard purchased and James Orchard ingested a milk product produced and sold by Adam Dean and did so in the intended manner or in a reasonably foreseeable manner The milk product was expected to and did reach plaintiff without substantial change in its condition as manufactured, packaged, supplied, marketed, distributed and sold Plaintiff was not aware of and reasonably could not have discovered the dangerous nature of the milk products they purchased Defendant's milk product contained Campylobacter and therefore constitutes a product unreasonably dangerous for normal use due to defective manufacture As a direct and proximate result of defendant's manufacture of a defective product, plaintiff James Orchard has suffered and will continue to suffer damages which include, 28

29 without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT XIII STRICT LIABILITY (James Orchard v. Philip Dean) 124. PlaintiffJames Orchard realleges and incorporates by reference paragraphs Defendant Philip Dean was engaged in the business of manufacturing, packaging, supplying, marketing and selling milk products Plaintiff Maureen Orchard purchased and James Orchard ingested a milk product produced and sold by Philip Dean and did so in the intended manner or in a reasonably foreseeable manner The milk product was expected to and did reach plaintiffs without substantial change in its condition as manufactured, packaged, supplied, marketed, distributed and sold Plaintiffs were not aware of and reasonably could not have discovered the dangerous nature of the milk products they purchased Defendant's milk product contained Campylobacter and therefore constitutes a product unreasonably dangerous for normal use due to defective manufacture As a direct and proximate result of defendant's manufacture of a defective product, plaintiffjames Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 29

30 WHEREFORE, in consideration of the foregoing, plaintiff respectfully prays that this COUNT XIV STRICT LIABILITY (James Orchard v. Cindy Dean) 131. PlaintiffJames Orchard realleges and incorporates by reference paragraphs Defendant Cindy Dean was engaged in the business ofmanufacturing, packaging, supplying, marketing and selling milk products Plaintiff Maureen Orchard purchased and James Orchard ingested a milk product produced and sold by Cindy Dean and did so in the intended manner or in a reasonably foreseeable manner The milk product was expected to and did reach plaintiffs without substantial change in its condition as manufactured, packaged, supplied, marketed, distributed and sold Plaintiff was not aware of and reasonably could not have discovered the dangerous nature ofthe milk products they purchased Defendant's milk product contained Campylobacter and therefore constitutes a product unreasonably dangerous for normal use due to defective manufacture As a direct and proximate result of defendant's manufacture of a defective product, plaintiff James Orchard has suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 30

31 WHEREFORE, in consideration of the foregoing, plaintiffs respectfully pray that this COUNT XV STRICT LIABILITY (James Orchard v. McGinnis Food Center) 138. Plaintiff James Orchard realleges and incorporates paragraphs Defendant McGinnis Food Center was engaged in the business of supplying, marketing and selling milk products Plaintiff Maureen Orchard purchased, and James Orchard ingested, a milk product sold by McGinnis Food Center and did so in the intended manner or in a reasonably foreseeable manner The milk product was expected to and did reach plaintiffs without substantial change in its condition as manufactured, packaged, supplied, marketed, distributed and sold Plaintiffs were not aware of and reasonably could not have discovered the dangerous nature of the milk products they purchased Defendant's milk product contained Campylobacter and therefore constitutes a product unreasonably dangerous for normal use due to defective manufacture As a direct and proximate result of McGinnis Food Center's sale of a defective product, plaintiffs James Orchard suffered and will continue to suffer damages which include, without limitation, past and future medical expenses, past and future wage loss and loss of earning capacity, physical pain and suffering, and mental anguish. 31