Monday, October 27, 2008

Court upholds $3.2 million food-poisoning verdict


The Orange County Register


Source of Article:


In a precedent-setting decision, an appeals court upheld Monday a $3.2 million jury verdict awarded to a 25-year-old woman who suffered permanent nerve damage after eating tainted raw tuna at a Dana Point restaurant.

Alexis Sarti of Costa Mesa, a cross-country runner in high school, had to drop out of Saddleback College for one and a half years for medical treatment and therapy after the April 2005 incident.

She could not walk long distances and often used a wheelchair since she ate an ahi tuna appetizer at Salt Creek Grille.

Today, for the most part, Sarti said she functions fine and is able to do most activities that other healthy people can except for running, long hikes and walks or other strenuous outdoor exercise.

She still has muscle spasms and cramps almost daily, but says she is used to them.

"As I get older, it will be harder for me," Sarti said. "I do have the disability for the rest of my life."

Lawyers for Salt Creek Grille, a popular restaurant which has four other locations in California and New Jersey, had appealed the July 11, 2006 jury verdict.

Sarti, who's wrapping up Saddleback College this semester and plans to transfer to a four-year school with the goal of becoming a speech pathologist, said she tried to put the appeal process out of her mind and focused on getting her life back together.

Only last weekend, her boyfriend Marshall McDaniel, 26, proposed to her and the couple is to wed next November. Expecting the appeals court ruling, she sent a two-word text message to her attorney early Monday, asking: "Any news?"

"Call me," her attorney responded, and Sarti said she worried that the ruling was not in her favor. She telephoned and learned about the decision.

"I never actually thought the day would ever come," she said. "I am still in shock."

In its 30-page opinion, a panel of three justices at the 4th District Court of Appeal in Santa Ana sided with the jury verdict, which now can be cited in other food-poisoning lawsuits as a milestone ruling.

Sarti spent 49 days in the hospital after eating at Salt Creek Grille on April 7, 2005.

She never completely recovered, had to use a walker for eight months, and to this day retains only about 40 percent of what would have been her normal endurance, according to court documents.

Her illness, which caused her respiratory system to shut down, stemmed from alleged "cross-contamination" of her raw tuna with bacteria found in raw poultry, said her attorneys, Keith Bremer and Tyler Offenhauser.

"We are extremely pleased to know that the appellate court has affirmed the Orange County jury's findings," said Bremer, of Bremer, Whyte Brown & O'Meara in Newport Beach.

"Alexis suffered significant injuries and is justly entitled to be compensated for her injury," Bremer said. "It is always rewarding to help a great person see the legal system all the way through the appellate court and see it work properly."

The attorney who handled the appeal for Salt Creek Grille, Roy G. Weatherup, of Lewis Brisbois Bisgaard & Smith in Los Angeles, was not immediately available for comment.

After the jury verdict came down, Salt Creek's president and co-founder, Tim McCune, said he was confident that the verdict would be overturned on appeal "and our company and staff (would) be vindicated."

Technically, the opinion written by 4th District Court of Appeal Justice David Sills and made public today reversed a trail court decision made by Superior Court Judge Derek W. Hunt.

Although Hunt ruled that he would have voted with the jury on the question of liability in this case because he believed Sarti "won this case fair and square," according to court documents, he overturned the jury verdict.

Hunt said he had a problem with a 35-year-old appellate court decision that seemed to forbid juries in food-poisoning cases to infer, as they did in the Salt Creek Grille lawsuit, that certain practices led to cross-contamination from raw chicken to raw tuna.

The appellate court found such an inference reasonable, and reinstated the jury's original $3.2-million verdict. In doing so, the appellate court threw down a direct challenge to that older case, which could become an issue for the state Supreme Court to sort out.

"Food poisoning cases are governed by the same basic rules of causation that govern other tort cases," Monday's appellate ruling said.

After she became ill from eating the ahi, Sarti had a violent reaction that caused her nervous system to shut down, temporarily leaving her with double vision and paralysis from head to toe, according to the lawsuit.

The average compensation awarded by juries to plaintiffs in food-poisoning cases was $41,888, according to a 2004 U.S. Department of Agriculture survey of food-borne illness cases.

At trial, Bremer argued that Salt Creek had a pattern of "improper food handling at the restaurant" based on testimony from medical experts who reviewed Orange County Health Care Agency Inspection Reports.

According to the agency, Salt Creek had several violations related to food storage, food handling and cross-contamination on July 27, 2004, July 28, 2005 and May 5, 2005.

When the jury ruled in her favor two years ago, Sarti felt she had already won.

"The money wasn't an issue for me. I had my day in court and I was happy with it. The money doesn't make me a better person," she said.

But it will help to pay about a million dollars in past medical bills, and Sarti expects to put away another million for any future medical expenses.

Sarti said she is not afraid to eat sushi, although she has only done it once since having the tainted ahi.

"I still like fish," she said. "I am definitely more careful not only with regard to fish, just with everything when I go out to eat at restaurants --- more aware of what could happen to you from contaminated food, not just from fish but any (food)."

Sarti, meanwhile, has studied information on food contamination from the Center for Disease Control and Prevention and routinely checks out the Agency's reports on restaurants in her area.

"Anywhere you go, you take some risk of running into contaminated food," she said. "But I am not going to stop living my life and not eat out. I am more cautious and everybody else should be cautious about what they're consuming."




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