PASADENA, Calif. -- In what is believed to be the first one of its kind filed against California-based In-N-Out Burger, an E. coli O157:H7 lawsuit was filed Friday by William Marler of Marler Clark, the Seattle attorneys nationally known for their representation of E. coli victims, and Ralph Martinez, a respected Irvine, Calif., attorney, in Orange County Superior Court.
The lawsuit was filed on behalf of Cayley Bowles, a 12-year-old girl who contracted an E. coli infection and developed Hemolytic Uremic Syndrome (HUS) after eating at the Kettleman City, Calif. In-N-Out Burger in January 2001. Cayley was hospitalized for 28 days and required 17 days of life saving kidney dialysis. She also required multiple blood transfusions. She is presently at risk for long-term complications, including the risk of end-stage renal disease and kidney transplants.
HUS has a mortality rate of about 5 percent. About 50 percent of patients require dialysis due to kidney failure, 25 percent experience seizures, and 5 percent suffer from diabetes mellitus. The majority of HUS patients requires transfusion of blood products and develops complications common to the critically ill. Among survivors of HUS, about 5 percent will eventually develop end-stage kidney disease, with the resultant need for dialysis or transplantation, and another five to ten percent experience neurological or pancreatic problems which significantly impair quality of life. (1)
"This little girl suffered tremendously because we believe that In-N-Out Burger failed to take basic safety precautions, and she will have to deal with the effects of that for the rest of her life," said William Marler. "In-N-Out Burger needs to know how a jury of 12 consumers feels about its failure to act on recommendations by health departments to decrease health risks to consumers."
The lawsuit seeks damages for $250,000 in medical expenses and for future costs related to the risk of Cayley suffering kidney failure that are estimated to be in the millions of dollars. The suit also seeks punitive damages, and asserts that Cayley's E. coli infection could have been prevented if In-N-Out Burger had taken proper precautions in preventing cross contamination between raw and cooking hamburgers and hamburger buns.
Restaurant industry experts retained by Marler Clark, and who specialize in Hazard Analysis and Critical Control Point (HACCP) compliance, concluded that the most likely cause of Cayley's infection was consumption of an E. coli-contaminated hamburger bun. According to Kings County Health Department records, in January 2001, In-N-Out Burger used a process where buns were toasted next to cooking hamburgers, exposing them to splatter, and allowing for the possibility of cross contamination from raw meat to the hamburger buns.
"We are suing for punitive damages because health department records show that In-N-Out Burger was warned of the potential for bacterial contamination of hamburger buns six times in the three years prior to Cayley's illness and that In-N-Out apparently took no action to prevent the contamination from happening," said Marler. (2)
Escherichia coli is 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. In the 21 years since E. coli O157:H7 was first identified as a cause of diarrhea, this bacterium has established a reputation as a significant public health hazard.
E. coli O157:H7 lives in the intestines of cattle. During the slaughtering process, the bacteria may contaminate the surface of the meat carcass. Hamburger is a particularly good vehicle for transmission of the bacteria since the contaminated "surface" is ground into the center of the meat patty. E. coli O157:H7 is also notable among pathogenic bacteria for its extremely low infectious dose -- that is, the amount of bacteria necessary to induce infection in a person. While for most pathogenic bacteria it takes literally millions of bacterial colonies to cause illness, it is now known that fewer than 50 E. coli O157:H7 bacteria can cause illness in a child. The practical import is that even a microscopic amount of contaminated meat or juice from that meat can trigger a devastating infection.
Marler Clark has extensive experience representing victims of foodborne illnesses. William Marler represented Brianne Kiner in her $15.6 million settlement with Jack in the Box in 1993. In 1998, Marler Clark resolved the Odwalla Juice E. coli outbreak for five families whose children developed HUS and were severely injured after consuming contaminated apple juice for $12 million. Marler Clark has also litigated on behalf of children against KFC, McDonalds, Hardees, Wendy's, Subway, Sizzler, and Carl's Jr., and recently secured a verdict of $4.75 million against a school district in eastern Washington. Total recoveries exceed $75 million. For more information on E. coli, visit www.about-ecoli.com or www.foodborneillness.com.
(1) See www.about-ecoli.com for additional information about E. coli and
(2) Kings County Health Department Records are available upon request.
Source: Marler Clark, LLP, PS