COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO RICHARD CARDINALE vs. Plaintiff FRESHWAY UNLIMITED, INC. DBA FRESHWAY FOODS 601 N. STOLLE AVENUE SIDNEY, OHIO 45365 and JOHN DOE MANUFACTURERS AND DISTRIBUTORS 1-3 Defendants CASE NUMBER: JUDGE: COMPLAINT (Jury Demand Endorsed Hereon COMES NOW Plaintiff Richard Cardinale, by and through his attorneys of record, and for cause of action against the above-named Defendants complains, alleges, and states as follows: I. PARTIES 1. The Plaintiff, Richard Cardinale, eighteen years old, is now, and was at all times material hereto, a resident of Franklin County, Ohio. 2. The Defendant, Freshway Unlimited, Inc. d/b/a Freshway Foods is an Ohio corporation with its principal place of business located at 601 N. Stolle Ave, Sidney, Ohio.
At all times material hereto, and as part of its regular business, Freshway Foods manufactured and distributed lettuce and other leafy green products, including the romaine lettuce that caused the Plaintiff s E. coli O145 infection and illness, described below. 3. Defendants John Doe Manufacturers and Distributors 1 through 3 are entities that are believed to have been involved in the manufacture and distribution of the product that caused Plaintiff s injuries and damages, but who have not yet been specifically identified. 4. This Court has jurisdiction over Defendants because they were engaged in business - namely, the manufacture and distribution of romaine lettuce - to customers and consumers within the State of Ohio. 5. Venue is proper in Franklin County, Ohio. Defendants manufactured and distributed products to customers and consumers within Franklin County, causing E. coli O145 infections in a number of residents of Franklin County. Further, the actions and injuries alleged herein arose within this district. II. FACTS The Outbreak 6. Local, state, and federal public health officials are investigating an outbreak of E. coli O145 infections linked to Defendants romaine lettuce products in Michigan, New York, and Ohio. 7. According to the Centers for Disease Control and Prevention (CDC, as of May 5, 2010, a total of 19 confirmed and 10 probable cases related to this outbreak have been reported from the three states since March 1, 2010. 2
8. Among the confirmed and probable cases with reported dates available, illnesses began between April 10, 2010 and April 26, 2010. Infected individuals range in age from 13 years old to 29 years old and the median age is 19 years. Sixty-nine percent of patients are male. Among the 29 patients with available information, 12 (41% were hospitalized. Three patients have developed a type of kidney failure known as hemolytic-uremic syndrome, or HUS. No deaths have been reported. 9. The bacteria responsible for this outbreak are referred to as Shiga toxinproducing E. coli, or STEC. STECs have been associated with human illness, including bloody diarrhea and a potentially fatal kidney condition called hemolytic-uremic syndrome (HUS. STEC bacteria are grouped by serotypes (e.g., O157 or O145. The STEC serotype found most commonly in U.S. patients is E. coli O157. Other E. coli serotypes in the STEC group, including O145, are sometimes called non-o157 STECs. Currently, there are limited public health surveillance data on the occurrence of non-o157 STECs, including E. coli O145, therefore E.coli O145 may go unreported. Because it is more difficult to identify than E. coli O157, many clinical laboratories do not test for non-o157 STEC infection. 10. In a press release, Defendant Freshway Foods said the E. coli O145- contaminated romaine lettuce was sold to wholesalers, food service outlets, in-store salad bars and delis in Alabama, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia and Wisconsin. The affected lettuce has a "best if used by" date of May 12 or earlier. Defendant Freshway Foods has recalled all implicated product. 3
Prior Outbreaks Linked to Lettuce and Other Leafy Greens 11. E. coli O145 and other STEC (e.g. E. coli O157 outbreaks associated with lettuce and other leafy green produce, specifically the pre-washed and ready-to-eat varieties, are by no means a new phenomenon. The Center for Science in the Public Interest found that of 225 food-poisoning outbreaks from 1990 to 1998, nearly 20 percent (55 outbreaks were linked to fresh fruits, vegetables, or salads. In July 2002, over 50 young women who were attending a dance camp were stricken with E. coli after eating pre-washed lettuce, leaving several hospitalized, and one with life-long kidney damage. In September 2003, nearly 40 patrons of a California restaurant chain became ill after eating salads prepared with bagged, pre-washed lettuce. One month later, in October 2003, 13 residents of a California retirement community were sickened, and 2 died, after eating E. coli-contaminated pre-washed spinach. 12. In September 2005, and again in August and September of 2006, two national outbreaks of E. coli O157:H7 were caused by pre-washed lettuce and spinach. Health authorities involved in the September 2005 outbreak investigation estimated that as many as 244,866 bags of potentially contaminated lettuce made it to market. These two outbreaks left hundreds of people sickened and at least four dead. 13. And since the 2006 spinach E. coli O157:H7 outbreak, there have been at least seven other outbreaks of E. coli O157 or Salmonella linked to lettuce or other leafy greens in the United States and Canada. The Plaintiff s E. coli O145 Infection 14. During April 2010, Plaintiff, a freshman at The Ohio State University, regularly ate on campus at various locations, frequently consuming lettuce and other leafy green vegetable products in salads and other food items. 4
15. Plaintiff was infected by E. coli O145 after consuming contaminated romaine lettuce manufactured and distributed by Defendants. 16. Multiple other students from The Ohio State University also became infected by E. coli O145 after consuming Defendants lettuce products. 17. Plaintiff suffered a severe gastrointestinal illness as a result of his E. coli O145 infection, including bloody diarrhea and severe dehydration. E. coli 0145 illness. 18. On or about April 14, 2010, Plaintiff was hospitalized for treatment of his 19. Plaintiff s stool sample tested positive for E. coli O145, matching the strain of E. coli O145 that has been implicated in the above-described outbreak in Ohio, Michigan and New York. III. CAUSES OF ACTION COUNT I Strict Liability 20. At all times relevant to this action and the allegations herein, the Defendants were manufacturers within the meaning of the Ohio Product Liability Act, R.C. 2307.71 et seq. 21. The Defendants manufactured the romaine lettuce that caused the Plaintiff s E. coli O145 infection. 22. The romaine lettuce that caused Plaintiff s infection and related illness and injuries was a product within the meaning of R.C. 2307.71 (A(12(a. 23. The product that caused Plaintiff s infection and related illness and injuries was, at the time that it left the Defendants control, defective within the meaning of R.C. 5
2307.73 (A(1. More specifically, the romaine lettuce was unreasonably dangerous for its ordinary and expected use, because it contained E. coli O145, a potentially deadly pathogen. 24. The product was delivered to Plaintiff without any change in its defective condition, and he used the product in the manner expected and intended by consuming it. 25. Plaintiff s E. coli O145 infection and related illness and injuries occurred as a direct and proximate result of the defective and unreasonably dangerous condition of the adulterated food product that was manufactured, distributed, and sold by Defendants. COUNT II Negligence 26. Defendants owed a duty to their consumers to use reasonable care in the manufacture of their food products, and to prevent or eliminate the risk that their food products would be contaminated with E. coli O145, or any other similarly deadly pathogen. Defendants breached this duty. 27. Defendants had a duty to comply with all statutes, laws, regulations, or safety codes pertaining to the manufacture, distribution, storage, and sale of their food products, but failed to do so, and were therefore negligent. 28. Plaintiff is among the class of persons designed to be protected by these statues, laws, regulations, safety codes or provisions pertaining to the manufacture, distribution, storage, and sale of similar food products. 29. Defendants had a duty to properly supervise, train, and monitor their employees, and to ensure that their employees complied with all applicable statutes, laws, regulations, or safety codes pertaining to the manufacture, distribution, storage, and sale of similar food products, but they failed to do so and were therefore negligent. 6
30. Defendants had a duty 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, but they failed to do so and were therefore negligent. 31. Plaintiff s E. coli O145 infection and related illness and injuries occurred as a direct and proximate result of the Defendants acts of negligence. COUNT III Negligence per se 32. The food that Defendants manufactured and sold, and that caused Plaintiff s E. coli O145 infection and related illnesses and injuries, was adulterated within the meaning of the Pure Food and Drug Law of Ohio, R.C. 3715.59(A. of adulterated food. 33. Defendants violated R.C. 3715.52(A(1, by their manufacture and sale 34. The Pure Food and Drug Law of Ohio establishes a positive and definite standard of care in the manufacture and sale of food, and the violation of this law constitutes negligence per se. 35. Plaintiff is among the class of persons designed to be protected by these statues, laws, regulations, safety codes or provisions pertaining to the manufacture, distribution, storage, and sale of similar food products. 36. Plaintiff s E. coli O145 infection and related illnesses and injuries occurred as a direct and proximate result of the Defendants violation of the Pure Food and Drug Law of Ohio. 7
IV. DAMAGES 37. Plaintiff has suffered general, special, incidental, and consequential damages as the direct and proximate result of the acts and omissions of the Defendants, in an amount which shall be fully proven at the time of trial. These damages include, but are not limited to: damages for general pain and suffering; damages for loss of enjoyment of life, both past and future; past medical and medical-related expenses; future medical and medical-related expenses; travel and travel-related expenses, both past and future; lost wages; emotional distress, past and future; pharmaceutical expenses, past and future; and all other ordinary, incidental, or consequential damages that would or could be reasonably anticipated to arise under the circumstances. V. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants as follows: A. Compensation for all general, special, incidental, and consequential damages suffered by the Plaintiff as a result of the Defendants conduct; B. Statutory prejudgment interest; C. Reasonable attorneys fees and costs, to the fullest extent allow by law; and 8
D. All such additional and further relief as this Court deems just and equitable. Rex A. Littrell (0042419 ULMER & BERNE, LLP 88 East Broad Street, Suite 1600 Columbus, Ohio 43215 Telephone: (614 229-0034 Facsimile: (614 229-0035 E-Mail: rlittrell@ulmer.com Attorneys for Plaintiff Richard Cardinale Of counsel: William D. Marler Washington State Bar No. 17233 MARLER CLARK, L.L.P., P.S. 6600 Columbia Center 701 Fifth Avenue Seattle, Washington 98104 Telephone: (206 346-1888 Facsimile: (206 346-1898 Email: bmarler@marlerclark.com JURY DEMAND Plaintiff hereby requests a trial by jury of the maximum number of jurors allowed by law. 1837230 One of the Attorneys for the Plaintiff 9