Lawsuit filed in Boy Scout Ecoli outbreak

WSLS News Staff
Published: September 5, 2008

A boy scout’s mother files a civil lawsuit over the Ecoli outbreak that happened during August, in Rockbridge County.

A Seattle law firm called Marler Clark filed the lawsuit on behalf of Zachary Yost and his mother Devon Drew.

Zachary is one of 84 people who got sick at the boy scout camp in Goshen.

The Virginia Department of Health says most of the 84 people got sick from eating Ecoli tainted hamburger meat, sold by S&S Foods.

The family is suing S&S Foods.  The family claims Zachary is still sick, and testing positive for Ecoli.

The lawsuit is filed in Rockbridge County Circuit Court.

Read the lawsuit below

IN THE CIRCUIT COURT OF ROCKBRIDGE COUNTY FOR THE COMMONWEALTH OF VIRGINIA

COME NOW the plaintiffs, Devon Drew and Zachary Yost, by and through their attorneys of record, William H. Schladt, of Ward & Klein, Chartered, in association with William D. Marler, of Marler Clark, LLP (pending admission pro hac vice), and allege as follows:
I.
PARTIES
1.1 The plaintiff, Devon Drew, is the natural mother and legal guardian of the minor child, Zachary Yost.  The plaintiffs are residents of Howard County, Maryland.
1.2 The defendant, S & S Foods LLC, (“S & S”) is a California limited liability company, and its corporate headquarters and principal place of business are located at 1120 West Foothill Boulevard, Azusa, California. 
II.
JURISDICTION AND VENUE
2.1 S & S manufacturers and sells meat products, including those products at issue in this case, for national distribution and sale to Virginia retailers and restaurants for use and consumption by consumers in Virginia.  It is thus alleged that S & S transacted business, at all times material hereto, in Virginia, and purposely availed itself of the rights and protections of Virginia law.  Accordingly, S & S is subject to the personal jurisdiction of this Court.
2.2 This Court has original jurisdiction because the matter in controversy exceeds $15,000.00, exclusive of costs.
2.3 Venue in the present judicial district is proper because a substantial portion of the events giving rise to the plaintiffs’ claims occurred here, and because the defendants was subject to personal jurisdiction at the time this action was commenced. 
    III.
FACTS
3.1 E. coli O157:H7:  Escherichia coli are the name of a common family of bacteria, most members of which do not cause human disease.  E. coli O157:H7 is a specific member of this family that can cause bloody diarrhea (hemorrhagic colitis) in humans.  After a susceptible individual ingests E. coli O157:H7, the bacteria attaches to the inside surface of the large intestine and initiates an inflammatory reaction of the intestine.  The mean incubation period (time from ingestion to the onset of symptoms) of E. coli O157:H7 is estimated to be two to four days (range, 1-21 days).  Typically, a patient with an acute E. coli O157:H7 infection presents with abdominal cramps, bloody diarrhea, and vomiting.  E. coli O157:H7 can produce a wide spectrum of disease from mild, non-bloody diarrhea, to severe bloody diarrhea accompanied by excruciating abdominal pain to life-threatening complications.
3.2 The S & S Outbreak:  In July, 2008, at least 84 people that attended a camp in Rockbridge County, Virginia were infected with E. coli O157:H7.  At least 30 of these persons were laboratory confirmed to have E. coli O157:H7.  At least 8 of those sickened required hospitalization.  The illnesses were investigated by health officials.  Health officials reported that ground beef served at the camp tested positive for E. coli O157:H7 matching the genetic strain in the infected people.  The ground beef was manufactured and sold by S & S.  S & S subsequently recalled 153,630 pounds of its ground beef as a result of the investigation and outbreak.
3.3 Zachary Yost’s E. coli O157:H7 Infection:  Zachary Yost attended the camp from July 20 through July 26, 2008.  Upon information and belief, the ground beef manufactured and sold by S & S was served on July 22, 2008.  Zachary Yost consumed the ground beef.  Zachary Yost fell ill beginning on July 26, 2008.  By July 29, 2008 he was suffering from bloody diarrhea, cramping, fatigue, and nausea.  On July 29, 2008, Zachary Yost received medical care for his illness, and submitted a stool culture.  The stool culture later returned positive for E. coli O157:H7 of a strain matching the others associated with the outbreak and the ground beef manufactured and sold by S & S.  Zachary Yost continued to test positive for E. coli O157:H7 throughout the month of August, 2008, most recently on August 21, 2008.  Zachary Yost’s status as E. coli O157:H7 positive has dramatically restricted his activities.  As of the filing of this complaint, Zachary Yost has yet to test negative for E. coli O157:H7. 
IV.
BREACH OF WARRANTY
4.1 S & S is a manufacturer and seller of ground beef products.  S & S, through its manufacture and sale of ground beef products, warranted that its products were reasonably safe for their ordinary and foreseeable purpose, i.e. consumption.
4.2 S & S was the manufacturer and seller of the ground beef consumed by Zachary Yost that caused Zachary Yost’s E. coli O157:H7 infection. 
4.3 The ground beef manufactured and sold by S & S was contaminated with E. coli O157:H7, a potentially fatal pathogen.  As such, the ground beef was unreasonably dangerous for its ordinary and foreseeable use. 
4.4   The ground beef was contaminated with E. coli O157:H7 when it left the possession and control of S & S. 
4.5 S & S breached the warranty of the safety of its goods for their expected and foreseeable purpose.  This breach was the direct and proximate cause of Zachary Yost’s injuries, and is thus liable to the plaintiffs for the injuries sustained. 
V.
NEGLIGENCE CLAIMS
5.1 For all times relevant to this action, the defendant, in its manufacturing operations, had a duty to comply with the Federal Meat Inspection Act (FMIA), 21 U.S.C. 601, and all of the rules, regulations, and policies promulgated pursuant to it, including, but not limited to: HACCP, 9 C.F.R. Parts 416 and 417.  The defendant similarly had a duty to comply with Virginia law, to the extent not different than, or in addition to, the FMIA. See O.S.G.A. § 26.2.62.
5.2 With reference to duties identified in the preceding paragraph, S & S did not comply with such duties in its manufacture of the E. coli O157:H7-contaminated beef products that ultimately caused the plaintiff’s illness, and that were subject to USDA-FSIS Recall. 
5.3 Under Virginia law, S & S’s failure to comply with legislative or administrative regulations, whether relating to design, construction or performance of the product or to warnings or instructions as to its use, may be evidence of negligence.
5.4 The plaintiffs are among the specific class of persons designed to be protected by the statutory and regulatory provisions, cited above, pertaining to the manufacture, distribution, storage, labeling, and sale of meat products by the defendant.
5.5 When an injury-causing aspect of the product was not, at the time of manufacture, in compliance with specific mandatory government specifications, it is evidence that the manufacturer breeched its duty of reasonable care, and is negligent per se.
5.6 The defendant owed a duty to the plaintiffs to use supplies and raw materials that complied with federal, state, and local food laws, ordinances, and regulations; that were from safe and reliable sources; that were clean, wholesome, and free from adulteration; and that were safe for human consumption, and for their intended purposes.  The defendant breached this duty
5.7 The defendant owed a duty to the plaintiffs to use reasonable care in the selection, supervision, and monitoring of its employees, suppliers, or other subcontractors.  The defendant breached this duty.
5.8 The defendant owed a duty to the plaintiffs to use reasonable care in the handling, manufacture, storage, and distribution of its ground beef, to keep it free of contamination with E. coli O157:H7.  The defendant breached this duty.
5.9 As a result of S & S’s breach of duties, and noncompliance with applicable law and safety regulations, it manufactured beef that was not reasonably safe, and the plaintiffs suffered severe personal injuries, as well as economic loss, as a proximate result.
VI.
DAMAGES
6.1 The plaintiffs have suffered general damages as the direct result of the acts above-described and omissions of the defendant, which damages, both past and future, shall be fully proven at the time of trial, including, without limitation, both physical and emotional pain and suffering, anxiety and distress, damages for loss of enjoyment of life, both past and future; and emotional distress, and future emotional distress.
6.2 The plaintiffs have suffered special, incidental and consequential damages as the direct and proximate result of the acts and omissions of the defendant, which damages shall be fully proven at the time of trial, including, but not limited to, damages for loss of enjoyment of life, both past and future; medical and medical related expenses, both past and future; travel and travel related expenses, loss of wages, past and future; emotional distress, and future emotional distress; pharmaceutical expenses, past and future; and other ordinary, incidental and consequential damages as would be anticipated to arise under the circumstances.
VII.
JURY DEMAND
The plaintiffs hereby demand a trial by jury of any and all issues so triable as of right.
PRAYER FOR RELIEF
WHEREFORE, the plaintiffs pray:
(1) That the court award the plaintiffs judgment against the defendant jointly and severally in such sums as shall be determined to fully and fairly compensate plaintiffs for all general, special, incidental and consequential damages incurred, or to be incurred, by the plaintiffs as the direct and proximate result of the acts and omissions of the defendant;
(2) That the court award the plaintiffs their costs, disbursements and reasonable attorneys’ fees incurred;
(3) That the court award the plaintiffs the opportunity to amend or modify the provisions of this complaint as necessary or appropriate after additional or further discovery is completed in this matter, and after all appropriate parties have been served; and
(4) That the court award such other and further relief as it deems necessary and proper in the circumstances.

SIGNED AND DATED this ¬¬¬____ day of September, 2008.

__________________________________________
William H. Schladt, VA Bar No. 33237
WARD & KLEIN, CHARTERED
2275 Research Boulevard Suite 720
Rockville, Maryland 20850
Telephone: 240-243-7200

WITH:

__________________________________
William D. Marler, of
MARLER CLARK, L.L.P., P.S.