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Food Poisoning Complaint Against Defusco Bakery in Rhode Island

STATE OF RHODE ISLAND SUPERIOR COURT

PROVIDENCE, SC.

____________________________________

|

ERIN CARRERA, individually, and |

as guardian for J.C., a minor |

|

|

Plaintiff, | CIVIL ACTION

| NO.

v. |

|

DEFUSCOS BAKERY INC, |

|

Defendant. |

|

COMPLAINT AND JURY DEMAND

1. PLAINTIFFS: Erin Carrera is the parent and legal guardian of J.C., a minor. Erin Carrera and J.C. are residents of Rehoboth, Bristol County, Commonwealth of Massachusetts.

2. DEFENDANT: Defusco’s Bakery, Inc. (“Defusco’s”), is a Rhode Island corporation with a principal place of business located in Johnston, Providence County, Rhode Island, and at all times material hereto was a manufacturer and seller of bakery food products.

3. The Court has jurisdiction over the defendant because the defendant is a Rhode Island corporation and at all times relevant hereto conducted business in Rhode Island.

4. Venue is proper in Providence County, pursuant to R.I. Gen. Laws §9-4-4 because the defendant resides in Providence County.

The DeFusco’s Salmonella Outbreak

5. On or about March 25, 2011 Rhode Island Health Officials announced a recall of bakery goods from Defusco’s as the result of an outbreak of Salmonella illness related to pastries manufactured and sold by the defendant. The contaminated pastries included zeppoles. 6. As of the time of the filing of this complaint, 56 persons were reported ill in the Salmonella outbreak, with 26 hospitalizations.

7. During the investigation of the defendant’s bakery by health officials, cardboard boxes used for storage of empty pastry shells tested positive for Salmonella. In addition, health officials reported multiple violations of the food code.

The Minor Plaintiff’s Illness and Injuries

8. The plaintiff Erin Carrera purchased zeppoles at Defusco’s on March 18, 2011. J.C. consumed one zeppole on March 18, and another on March 19, 2011.

9. Late on March 19, 2011, J.C. began to suffer from gastrointestinal symptoms, including abdominal cramping, diarrhea, and fever.

10. J.C.’s symptoms continued and worsened until he required medical care on March 25, 2011. At that time, a stool culture was taken that tested positive for Salmonella.

11. J.C. is still recovering from his Salmonella infection.

12. J.C.’s Salmonella infection resulted directly from his consumption of bakery goods manufactured and sold by defendant Defusco’s.

First Claim for Relief—Strict Product Liability

13. The plaintiffs adopt and incorporate by reference paragraphs 1 through 12 as though fully set forth herein.

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14. At all times relevant to this action, the defendant was a manufacturer and seller of the Salmonella contaminated food product that caused the plaintiffs’ injuries.

15. The Salmonella contaminated food product that the defendant manufactured, distributed, and sold was, at the time it left the defendant’s control, defective because it contained Salmonella, a potentially lethal pathogen, and was thus in a condition not contemplated by the ultimate consumer.

16. The defective condition of the Salmonella contaminated food product that the defendant manufactured, distributed, and sold caused the food product to be unreasonably dangerous because the product, as it was contaminated by Salmonella, created a strong likelihood of injury to the plaintiffs, who were unaware of the danger of using the product in a normal manner by consuming it.

17. The Salmonella contaminated food product that the defendant manufactured, distributed, and sold was delivered to the plaintiffs without any change in its defective condition. The adulterated food product that the defendant manufactured, distributed, and sold was used in the manner expected and intended, and was consumed by the minor plaintiff.

18. As a direct and proximate result of the defendant’s manufacture, distribution and sale of Salmonella contaminated food, the minor plaintiff was infected with Salmonella causing him to suffer substantial personal injury, and causing related economic loss to the plaintiffs.

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Second Claim for Relief—Breach of Warranty

19. The plaintiffs adopt and incorporate by reference paragraphs 1 through 18 as though fully set forth herein.

20. The defendant is liable to the plaintiffs for breaching express and implied warranties made regarding the Salmonella contaminated food product that caused the plaintiffs’ injuries. These express and implied warranties included the implied warranties of merchantability and fitness for a particular use. Specifically, the defendant expressly warranted, through its sale of the food product to the public and by the statements and conduct of its employees and agents, that the food product it had prepared and sold was fit for human consumption and not otherwise adulterated or injurious to health.

21. The plaintiffs allege that the Salmonella contaminated food product that caused the plaintiffs’ injuries would not pass without exception in the trade, and that the sale of that contaminated food product was therefore in breach of the implied warranty of merchantability.

22. The plaintiffs allege that the Salmonella contaminated food that caused the plaintiffs’ injuries was not fit for the uses and purposes intended, i.e. human consumption, and that the sale of that contaminated food product was therefore in breach of the implied warranty of fitness for its intended use.

23. As a direct and proximate result of the defendant’s breach of express and implied warranties regarding the contaminated food product, the minor plaintiff was infected with Salmonella causing substantial personal injuries, and causing plaintiffs related economic loss.

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Third Claim for Relief—Negligence

24. The plaintiffs adopt and incorporate by reference paragraphs 1 through 23 as though fully set forth herein.

25. The defendant owed to the plaintiffs a duty to use reasonable care in the manufacture, distribution, and sale of its food products, the observance of which duty would have prevented or eliminated the risk that the defendant’s food products would become contaminated with Salmonella or any other dangerous pathogen. The defendant breached this duty by failing to exercise reasonable care in the manufacture, distribution and sale of the food product.

26. 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. Defendant failed to comply with statutes, laws, regulations and safety codes pertaining to the manufacture, distribution, storage and sale of food products, and was therefore negligent. The plaintiffs are 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.

27. The defendant had a duty to properly supervise, train, and monitor its employees, and to ensure its employees’ compliance with all applicable statutes, laws, regulations, or safety codes pertaining to the manufacture, distribution, storage, and sale of similar food products, but the defendant failed to do so. Defendant failed to properly supervise, train, and monitor its employees, and to ensure its employees’ compliance with all

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applicable statutes, laws, regulations, or safety codes pertaining to the manufacture, distribution, storage, and sale of its food products, and was therefore negligent.

28. The defendant had a duty to use ingredients, supplies, and other constituent materials that were reasonably safe, wholesome, free of defects, from reliable sources, 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 the defendant failed to do so.

29. As a direct and proximate result of the defendants’ negligence, the minor plaintiff was infected with Salmonella causing substantial personal injury, and causing plaintiffs related economic loss.

WHEREFORE, Plaintiff asks that judgment enter in her favor and against the defendant on each count of this Complaint, and that the Court award her sufficient damages to compensate her and J.C. for the loss and damages incurred, and such other and further relief as this Court deems meet and just.

Plaintiff demands a trial by jury on all issues raised in this Complaint.

The Plaintiff,

ERIN CARRERA, Individually and as

Guardian ad litem for J.C. a minor,

By her attorneys,

_________________________________

Patrick T. Jones (BBO# 253960)

Peter J. Schneider (BBO# 446520)

COOLEY MANION JONES LLP

21 Custom House Street

Boston, MA 02110

Tel: 617-737-3100

Fax: 617-737-3113

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___________________________________

William D. Marler, Esquire

MARLER CLARK, LLP, P

1301 Fifth Avenue, Suite 2800

Seattle, WA 98101

Tel: 206-346-1888

Fax: 206-346-1898

(pending pro hac vice)

DATED:

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Legal Notice per Rules of Professional Responsibility: The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice. While this firm maintains joint responsibility, most cases of this type are referred to other attorneys for principle responsibility

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