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Class Action Can Be Tool Against HAV

Bacteria, viruses and parasites–the unholy trinity of foodborne illnesses–hurt people in such unique and different ways so-called “class action” lawsuits brought on behalf of victims of foodborne illness are rare.

Instead, the injured bring individual lawsuits and claims against the responsible parties.  That is because food poisoning injuries vary greatly from one individual to another.

hepatitis-a-injection.jpgThe nation’s best-known food safety attorney does, however, make use of class action lawsuits when people must get Immune globulin (IG) shots or vaccines to prevent hepatitis A (HAV) infection after being exposed by restaurant workers working while infected with the virus.

“Our experience in handling large Hepatitis A exposures has allowed us to develop a system for helping as many people as possible recover damages for injuries sustained without the process being too taxing on individuals or the legal system,” explains attorney William Marler.  “We file a class action on behalf of the exposed who are able to avoid infection, and then help individuals who fall ill on a case-by-case basis.”

The Milan, IL McDonald’s was the latest example of where restaurant workers exposed an estimated 10,000 customers to HAV.  Public health officials urged everyone exposed to the virus to receive IG injections or hepatitis A vaccine to inoculate themselves against HAV.   That is because if a person exposed to HAV gets a shot of IG within 14 days of exposure, they can avoid getting sick.

While offered at a series of free clinics, those who were unfortunate enough to dine at McDonald’s still had to take their own time and incur the expense to get to the clinics for injections.  

Marler and the Illinois law firm of Foote, Meyers, Mielke & Flowers filed the class action lawsuit on July 21, 2009 on behalf of Cody Patterson and the nearly 5,400 Quad City residents who received the shots.

“This lawsuit is on behalf of the thousands of people who had to get IG shots because of exposure to Hepatitis A at McDonald’s,” Marler said.  “These consumers chose McDonald’s in part because of the convenience, and now they have to wait hours in line or pay for a shot, and very likely miss work in order to do either one.  Filing a class action on their behalf is the best way to compensate them for the time, wage loss, and expense.”

The Rock Island County Health Department closed the Milan McDonald’s for three days last July after two restaurant workers tested positive for HAV.  The virus made at least 32 McDonald’s customers sick.

Marler, who also brought separate lawsuits on behalf of at least three of the HAV victims, can point to several past class action successes.

After one of the country’s largest HAV outbreaks that occurred among customers of a Beaver County, PA Chi-Chi’s restaurant, courts awarded $162.23 to each of the 4,931 who filled out the claim form saying they’d obtained the IG shot.  In the Chi-Chi’s outbreak, 660 people were infected with the virus and about 550 separate lawsuits were filed.

When he is not filing class action claims for inconvenienced restaurant customers, Marler tries to persuade restaurant owners and managers not to allow anyone to serve food that has not been vaccinated for HAV.   “I have repeatedly encouraged and warned restaurants that it is in their customers’ and their own interest to vaccinate all employees for Hepatitis A before they are allowed to serve food,” Marler says.

When one infected restaurant worker can expose 4,000 people to HAV–as occurred at a suburban Chicago Houlihan’s restaurant two years ago, Marler says it shows how far a little preventive action might go.

Marler is managing partner of the Seattle law firm of Marler Clark.  The firm represents victims of foodborne illnesses throughout the country.

Photo courtesy of James Gathany

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