The Appellate Division, First Department of the New York Supreme Court, has ruled that an E coli victim’s lawsuit against the  Chopt Creative Salad Co. LLC may go forward.

The nine-year-old legal action by Plaintiff-Respondent Alison Goldman named the Chopt Creative Salad Company as the  Defendant-Appellant in the Bronx court after Goldman became ill after eating after eating a half salad sandwich at a Chopt restaurant on April 18, 2015.

Bronx Judge Leticia M. Ramirez was the first to deny Chopt’s motion for summary judgment to dismiss the Goldman complaint. The trial judge’s ruling is upheld, allowing the lawsuit to proceed.

Chopt Salad has about 79 locations in the United States, with 19 locations in New York State, where it is headquartered.  Chopt Salads reports annual revenues of about $100 million.

Alison Goldman began suffering from gastrointestinal distress about 9 to 11 hours after consuming the sandwich at a Chopt restaurant.

Ultimately, she went to an emergency room. “After several days of worsening symptoms, her doctors discovered that she had contracted an enteropathogenic E. coli infection (EPEC), and they diagnosed her with, among other things, hemolytic-uremic syndrome (HUS) driven by the infectious process, the appellate court said.

“Defendants failed to establish prima facie either that the spinach in the salad sandwich plaintiff ate at their restaurant was not contaminated or that any contamination did not cause plaintiff’s illness. The proffered evidence of non-contamination, including the tests reflecting that the spinach supplied to Chop’t was free of other pathogens, the fact that no other diners reported any illness, and the fact that no employees took extended absences in the month before the incident, is circumstantial and not dispositive,” it continues.

“As to causation, the plaintiff’s submissions, which included deposition testimony, a laboratory test reporting the presence of EPEC in the plaintiff’s stool, medical records including the observations and conclusions of her treating physicians, and expert opinions from a medical doctor and a microbiologist, sufficiently raised a triable issue of fact without resorting to speculation 

 “Contrary to the defendant’s medical expert, who opined that the plaintiff’s symptoms indicated that she had atypical HUS not caused by infection with a foodborne pathogen, the plaintiff’s medical expert concurred with her treating physicians that she had typical HUS caused by her EPEC infection. Conflicting expert affidavits raise issues of fact and credibility that cannot be resolved on a motion for summary judgment, “ it said.

“Defendants’ further arguments cast doubt on the strain of E. coli detected in the laboratory tests and the incubation period of EPEC, which are unavailing. Defendants’ expert acknowledges that it was unlikely the laboratory erred, and all experts agreed that EPEC could cause symptoms as soon as four hours after ingestion.”

The New York appellate decision was entered on Feb. 13, 2023.

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