IN THE IOWA DISTRICT COURT FOR POLK COUNTY HEATHER TUTTLE, vs. Plaintiff, Case No. PETITION JIMMY JOHNS restaurant, store #278, located at 1551 Valley West Drive in West Des Moines, Iowa; Defendant. JURY DEMAND COMES NOW the plaintiff, Heather Tuttle, for a cause of action against defendant Jimmy Johns restaurant located at 1551 Valley West Drive, West Des Moines, IA, to respectfully allege as follows: I. PARTIES, JURISDICTION, AND VENUE 1. Heather Tuttle is 27 years old and is a resident of Polk County, Iowa. 2. On information and belief, the defendant Jimmy Johns restaurant, store #278, located at 1551 Valley West Drive in West Des Moines, Iowa is an Iowa company that, at all times relevant, was engaged in the business of manufacturing and distributing ready-to-eat sandwiches to the public. 3. Venue is proper in Polk County as it is the county in which the injury was sustained and the defendant conducts business. II. GENERAL FACT ALLEGATIONS The Outbreak 4. On February 15, 2012, the Centers for Disease Control announced an ongoing investigation into illnesses linked to the consumption of raw clover sprouts consumed at Jimmy John's Restaurants in several states.
5. Among 11 ill persons with information available, 10 (91%) reported eating at a Jimmy John's sandwich restaurant in the 7 days preceding illness. Ill persons reported eating at 9 different locations of Jimmy John's restaurants in 4 states in the week before becoming ill. One Jimmy John's restaurant location was identified where more than one ill person reported eating in the week before becoming ill. Among the 10 ill persons who reported eating at a Jimmy John's restaurant location, 8 (80%) reported eating a sandwich containing sprouts, and 9 (90%) reported eating a sandwich containing lettuce. Currently, no other common grocery stores or restaurants are associated with illnesses. 6. Preliminary traceback information has identified a common lot of clover seeds used to grow clover sprouts served at Jimmy John's restaurant locations where ill persons ate. Officials from the Food and Drug Administration, and various states, conducted a traceback that identified two separate sprouting facilities; both used the same lot of seed to grow clover sprouts served at these Jimmy John's restaurant locations. On February 10, 2012, the seed supplier initiated notification of sprouting facilities that received this lot of clover seed to stop using it. Investigations are ongoing to identify other locations that may have sold clover sprouts grown from this seed lot. Prior Jimmy John s Outbreaks Linked to Sprouts 7. In 2010, Sprouters Northwest of Kent, Washington, issued a product recall after the company's clover sprouts were implicated in an outbreak of Salmonella Newport in Oregon and Washington. At least some of the cases had consumed clover sprouts while at a Jimmy John's restaurants. A total of at least 7 people were sickened in the outbreak. 8. In 2010, 140 people, mostly residents of Illinois, were sickened by of Salmonella, serotype I4,[5],12:i:-, in an outbreak linked to alfalfa sprouts served on Jimmy Johns sandwiches. -2-
On December 21, 2010, Jimmy John Liautaud, the owner of the franchised restaurant chain, requested that all franchisees remove sprouts from the menu as a "precautionary" measure. On December 23, the Centers for Disease Control revealed that outbreak cases had been detected in other states and that the outbreak was linked with eating alfalfa sprouts while at a nationwide sandwich chain, a/k/a Jimmy Johns. On December 26, preliminary results of the investigation indicated a link to eating Tiny Greens Alfalfa Sprouts at Jimmy John s restaurant outlets. 9. In 2009, at least 256 people were infected by Salmonella Saintpaul after consuming contaminated alfalfa sprouts. Many of the 256 cases, but not all, were sickened after eating the contaminated sprouts on Jimmy Johns sandwiches. The initial traceback of the sprouts indicated that although the sprouts had been distributed by various companies, the sprouts from the first cases originated from the same sprouting facility in Omaha, Nebraska. Forty-two of the illnesses beginning on March 15 were attributed to sprout growing facilities in other states; these facilities had obtained seed from the same seed producer, Caudill Seed Company of Kentucky. The implicated seeds had been sold in many states. On April 26, the FDA and CDC recommended that consumers not eat raw alfalfa sprouts, including sprout blends containing alfalfa sprouts. In May, FDA alerted sprout growers and retailers that a seed supplier, Caudill Seed Company of Kentucky, was withdrawing all alfalfa seeds with a specific three-digit prefix. 10. In 2008, at least 28 people were sickened in and around Boulder Colorado with E. coli O157:NM after consuming sandwiches containing contaminated alfalfa sprouts at several Jimmy Johns locations. The investigation by Boulder County health officials revealed that consumption of alfalfa sprouts at the Jimmy John's Restaurants in Boulder County and Adams County were risk factors for illness. In addition, the environmental investigation identified Boulder Jimmy John's food handlers who were infected with E. coli and who had worked while -3-
ill. The health department investigation found a number of critical food handling violations, including inadequate handwashing. The fourteen isolates from confirmed cases were a genetic match to one another. Heather Tuttle s E. coli O26 Infection and Illness 11. Heather Tuttle consumed a Turkey Tom sandwich with sprouts from the defendant s Jimmy Johns store # 278, located at 1551 Valley West Drive in West Des Moines, Iowa, on January 3, 2012. 12. Onset of plaintiff s gastrointestinal symptoms occurred on or about January 5, 2012. She woke up that morning with severe abdominal cramps, and later in the day developed diarrhea while at work. 13. The next day, January 6, plaintiff continued to feel ill but worked a full day nonetheless because her employer was short-staffed. She suffered from cramps and frequent diarrhea throughout the day. 14. That weekend, plaintiff s symptoms worsened dramatically. She developed severe body aches, in addition to the agonizing abdominal cramps, and her frequent bouts of diarrhea turned grossly bloody and filled with mucous. 15. On or about Monday, January 9, plaintiff saw her primary physician, who secured a stool sample for testing and wrote a prescription for the antibiotic Flagyl, but instructed plaintiff not to fill the prescription until the results of her stool test were known. 16. Plaintiff s condition continued to worsen, and on Wednesday, January 11, she was referred to a gastroenterologist. That day, plaintiff underwent a colonoscopy. The gastroenterologist also administered 1 liter of fluids intravenously because plaintiff had become -4-
severely dehydrated. The gastroenterologist wrote plaintiff a prescription for the antibiotics Flagyl and Ciprofloxacin. 17. Plaintiff s symptoms continued to worsen after her colonoscopy procedure, causing her to seek treatment at the emergency department of a local hospital on Thursday, January 12. Her bouts of diarrhea were frequent, painful, and continued to be grossly bloody. At the ER, plaintiff was treated with 2 additional liters of intravenous fluids to correct her persistent dehydration, and she was given Bentyl (an anti-spasmodic) and Zofran (anti-emetic) for additional relief. 18. Plaintiff s bloody diarrhea lasted for approximately two weeks, and her diarrhea generally for another week after that. During the entirety of her three week period of persistent, severe gastrointestinal illness, plaintiff experienced excruciating abdominal cramps. 19. The stool sample that plaintiff submitted for testing during her initial physician s visit ultimately tested positive, on or about January 9, for E. coli O26. It was later determined that the genetic fingerprint of plaintiff s E. coli O26 isolate was indistinguishable from the fingerprint from other cases in the E. coli O26 outbreak linked to sprouts on Jimmy Johns sandwiches. Plaintiff has received multiple phone calls from local and state health officials inquiring about her food consumption history, particularly her meal history from Jimmy Johns, and confirming that plaintiff is one of the 12 people identified by the CDC as having become ill in this outbreak. III. STRICT PRODUCT LIABILITY 20. The defendant was at all times relevant to this matter the manufacturer and seller of the adulterated food product that is the subject of the action. -5-
21. The adulterated food product that the defendant 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 026, a deadly pathogen. 22. The adulterated food product the defendant manufactured, distributed, and sold was delivered to the plaintiff without any change in its defective condition. The adulterated food product the defendant manufactured, distributed, and sold was used in the manner expected and intended, and was consumed by the plaintiff. 23. 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. These damages include, but are not limited to: physical and mental pain and suffering, past and future in the form of the pain and suffering including bodily suffering, discomfort and loss of enjoyment of life; and medical costs and expenses to this point and the present value of reasonable medical expenses in the future. WHEREFORE, the plaintiff, Heather Tuttle, requests damages in an amount that will reasonably compensate her for the said injuries and damages, together with interest and costs, as permitted under Iowa law. IV. NEGLIGENCE PER SE 24. The plaintiff repleads the allegations set forth in paragraphs 1 through 23 above and incorporates same as if fully set forth herein. 25. The defendant had a duty to comply with all applicable state and federal regulations intended to ensure the purity and safety of its food product, including, but not limited to, the requirements of the Federal Food, Drug and Cosmetics Act, 21 U.S.C. 301 et seq. -6-
26. The defendant 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 O26, a deadly pathogen. 27. As a direct and proximate result of conduct by the defendant that was negligent per se, the plaintiff sustained injuries and damages. WHEREFORE, the plaintiff, Heather Tuttle, requests damages in an amount that will reasonably compensate her for the said injuries and damages, together with interest and costs, as permitted under Iowa law. V. NEGLIGENCE 28. The plaintiff repleads the allegations set forth in paragraphs 1 through 27 above and incorporate same as if fully set forth herein. 29. The defendant owed a duty to the plaintiff to use reasonable care in its manufacture, distribution, and sale of its food products, which duty, if met, would have prevented or eliminated the risk that the defendant s food products would become contaminated with E. coli O26 or any other dangerous pathogen. The defendant breached this duty. 30. The defendant had a duty to comply with all statutes, laws, regulations, or safety codes pertaining to the manufacture, distribution, storage, and sale of its food product, but failed to do so, and was therefore negligent. The plaintiff is among the class of persons designed to be protected by these statutes, laws, regulations, safety codes or provision pertaining to the manufacture, distribution, storage, and sale of similar food products. 31. The defendant had a duty to properly supervise, train, and monitor its employees, and to ensure its compliance with all applicable statutes, laws, regulations, or safety codes -7-
pertaining to the manufacture, distribution, storage, and sale of similar food products, but it failed to do so and was therefore negligent. WHEREFORE, the plaintiff, Heather Tuttle, requests damages in an amount that will reasonably compensate her for the said injuries and damages, together with interest and costs, as permitted under Iowa law. PRAYER FOR RELIEF WHEREFORE, the plaintiff, Heather Tuttle, prays for judgment against the defendant as follows: a. Judgment for the plaintiff against the defendant for just compensation in a fair and reasonable amount for the damages above set forth; and b. Such additional and/or further relief, including interest, costs, and reasonable attorney fees, as this Court deems just and equitable. JURY DEMAND The plaintiff hereby demands a jury trial. Dated this day of February, 2012. Respectfully submitted, /s/ Steven P. Wandro Steven P. Wandro Kara M. Simons WANDRO, BAER & McCARTHY, P.C. 2501 Grand Avenue Des Moines, IA 50312 Telephone: (515) 281-1475 Facsimile: (515) 281-1474 E-mail: swandro@2501grand.com E-mail: ksimons@2501grand.com William Marler, Esq. -8-
MARLER CLARK, LLP PS 701 First Avenue, Suite 6600 Seattle, WA 98104 Telephone: (206) 346-1888 Facsimile: (206) 346-1898 E-mail: bmarler@marlerclark.com ATTORNEYS FOR THE PLAINTIFF Original filed. -9-