$450,000: Parasite in Crab at Sushi Restaurant Caused Severe Lung Infection
June 8, 2010
CASE DESCRIPTION: Jessica R contracted a severe parasitic lung infection after ingesting a live, soft-shell crab while employed as a waitress at Doe Restaurant.
RESULT:$450,000 settlement
Jessica R worked as a waitress at Doe Restaurant. She served live Sawagani crabs at customers’ requests on several occasions. On February 18, 2006, at the request of a table of customers, Jessica consumed a live Japanese Sawagni Creek crab. Eating their crabs live had become a common practice at Doe Restaurant, and Jessica’s managers at the restaurant assured her that it was safe to eat the crabs raw. She did not enjoy the experience, and did not consume any other crabs while employed at the restaurant. She never consumed any other raw or live animal products during that time period from any other source.
Jessica R became increasingly ill over the following several months. She became increasingly fatigued, and she developed a painful severe cough. She sought the medical opinion of her family physician, who was not able to determine the source of her illness.
Her symptoms increasingly became more acute, and she found herself bedridden when not working. The pain while coughing became incapacitating, and she began coughing up small “balls” of matter. (She later discovered that these were eggs from the parasite that had infected her lungs.) Due to her worsening condition, Jessica R’s doctor ordered bilateral lung x-rays to determine the source of her problems. These x-rays showed that Ms. R had sustained collapsed lungs bilaterally. Ms. R, now very ill and struggling to breathe, was admitted to Mission Hospital on emergency basis on July 19, 2006.
The doctors at Mission were likewise puzzled by the origin of her symptoms. They speculated that Ms. R might have an AIDS-related illness, which was understandably quite an emotional shock to Ms. R and her family. Further scans revealed a “localized abnormality” on the medial aspect of the right upper lobe. The physicians initially discussed with Ms. R that this tumor may indicate lung cancer, and that it needed to be removed. Understandably, this was also quite an emotional shock to Ms. R.
On July 22, 2006, Ms. R underwent bilateral thorocotomies, where the right upper lobe was significantly resected and the “tumor” removed, and a suspicious area in the left upper lobe was resected in a wedge fashion. Upon laboratory analysis, it was discovered that the “tumor” was, in fact, a large area of tissue infected by the paragonimus westermani parasite. The Orange County Health Department was brought in to investigate, and the source of the infection was identified as the crab consumed by Ms. R at Doe Restaurant several months prior. Ms. R was understandably shocked and mortified to discover that she had been carrying a dangerous parasite within her body for several months, and was anxious in regard to whether the parasite would return.
As a result of this emergency chest surgery, Ms. R has permanently lost a significant percentage of her lung capacity. Ms. R was in intense pain prior to the surgery, and she continued to be in great pain during her recovery period. Since the rib cage has to be opened to allow the surgery, Ms. R was in unbearable chest pain for several months. She lost feeling on the right side of her chest, a condition which persists to the present day. Ms. R was essentially bedridden for the majority of five months before she was able to return to limited activity.
Ms. R is still fighting several after-effects of her injury. She fatigues easily, and continues to struggle for breath after any kind of exertion. She suffers from headaches, and feels depressed over her low stamina and energy. Her chest is still painful, particularly in the area of the ribs that were opened during the surgery.
Ms. R still bears several surgical scars. Her physician has recommended that she undergo plastic surgery to improve their appearance.
TYPE OF CASE: Negligence and Strict Liability
PLAINTIFF’S CONTENTIONS: Defendants are held liable both under a theory of strict product liability and of negligence. The “product” at issue was the live crab infected with the parasite. Plaintiff also contended that prevailing on the strict liability cause of action would make Defendants liable for all of Plaintiff’s injuries, with no Prop 51 set-off for the alleged negligence of Doe Restaurant.
Doe Supplier Two, which supplied the crabs to Doe Restaurant, purchased the crabs from Doe Supplier One. No action was brought against Doe Restaurant due to Workers’ Compensation exclusivity.
DEFENDANTS’ CONTENTIONS: Defendants contended that the fault lay entirely with Plaintiff’s employer, Doe Restaurant, since it ultimately made the decision to serve the crabs live. Defendants also contended that product liability did not apply since a live crab was not a “product” within the meaning of the law.
INJURIES: Jessica R was diagnosed with Paragonimus westermani. She permanently lost a significant percentage of her lung capacity due to the removal of portions of the upper lobes of her right and left lungs, and this has resulted in shortness of breath after exertion, and onset of fatigue. She also has scarring on her chest as a result of the surgery.
DATE AND LOCATION: February 18, 2006, Doe Restaurant, Mission Viejo, California
PLAINTIFF’S AGE: 19 years old at time of incident
OCCUPATION: Restaurant Server
FINAL RESULT: $450,000 total settlement:
$175,000 as to Defendant Doe Supplier One, who sold crab to Doe Supplier Two
$275,000 as to Defendant Doe Supplier Two, who purchased crab from Doe Supplier One, and supplied crab to Doe Restaurant
FUTURE WAGE LOSS: None expected.
MEDICAL SPECIALS:Past: $174,760.55, billed (approximately $40,000 paid by the insurer).
Future: None Expected.
PLAINTIFF’S ATTORNEY:
Darren O. Aitken
AITKEN * AITKEN * COHN
Attorneys for Jessica R
DEFENDANTS’ ATTORNEYS:
William A. Bossen
Helen Kim, Esq.
MUSICK, PEELER & GARRETT, LLP
Attorneys for Doe Supplier Two
Lee Marshall
Jeffrey A. Vinnick
HAIGHT BROWN & BONESTEEL, LLP
Attorneys for Doe Supplier One