v. - Food Poison Journal | Food Policy & Safety | Marler ... · The plaintiff, Josseline De Saint...

Case 1:15-cv-01565 Document 1 Filed 09/24/15 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSSELINE DE SAINT JUST, 4242 East West Highway, Chevy Chase, Maryland, 20815

Plaintiff,

v.

FIG & OLIVE DC LLC d/b/a Fig & Olive 133 W 191

h St., Suite 300 New York, NY 10011

Serve: Corporation Service Company 1090 Vermont Ave., NW Washington, DC 20005

Defendant.

Civil Action No.:

COMPLAINT

-------

(Food Poisoning- Strict Liability, Negligence)

Plaintiff Josseline De Saint Just ("plaintiff'), by and through her attorneys of record,

asserting claims against Defendant Fig & Olive USA, Inc., d.b.a. Fig & Olive DC, LLC, a

District of Columbia Corporation ("defendant"), and states and alleges as follows:

I. PARTIES

1. The plaintiff, Josseline De Saint Just, is a resident of Montgomery County

Maryland, and is a citizen ofthe State of Maryland.

2. The defendant, Fig & Olive USA Inc. , d.b.a. Fig & Olive DC, LLC, is a

corporation organized and existing under the laws of the Delaware. Defendant, together with its

subsidiaries (collectively the "Company"), develops and operates certain restaurants. At all times


relevant to the allegations contained in this complaint, the Company was registered to do

business, and did conduct business, in the District of Columbia, including at 934 Palmer Alley,

N. W., Washington, D.C. 20001. The Company manufactured and sold the food products that are

the subject ofthis action at its restaurant location in the District of Columbia.

II. JURISDICTION AND VENUE

3. This Court has jurisdiction over the subject matter of this action pursuant to 28

USC § 1332(a)(l) and (e) because the matter in controversy exceeds $75,000.00, exclusive of

costs, it is between citizens of different states, and because the defendant has certain minimum

contacts with the District of Columbia such that the maintenance of the suit in this district does

not offend traditional notions of fair play and substantial justice.

4. Venue in the United States District Court for the District of Columbia is proper

pursuant to 28 USC§ 139l(a)(2) because a substantial patt ofthe events or omissions giving rise

to the plaintiffs claims and causes of action occurred in this judicial district, and because the

defendant was subject to personal jurisdiction in this judicial district at the time of the

commencement of the action.

III. GENERAL ALLEGATIONS

The Salmonella Outbl'eak at F ig & Olive

5. On or about September 9, 2015, The District of Columbia Department of Health

(DOH) was notified of a potential foodborne disease outbreak at Defendant's Fig & Olive food

establishment in Washington, D.C. On Thursday, September 10, the restaurant voluntarily closed

for six days during DOH's investigation. Ultimately, the outbreak at Defendant's restaurant

caused more than 60 people to become ill, including residents of five states in addition to the

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District of Columbia. Ten confirmed cases among District of Columbia and Virginia residents

have been identified. An additional !50 possible cases are being investigated.

6. "Over the past six days we have been working very closely with the Department

of Forensic Science and persons who ate at the restaurant who may have been impacted by this

outbreak to ensure a comprehensive assessment and solution that will sustain the safety of those

living, working and visiting our nation's capital," said Dr. LaQuandra Nesbitt, Director of DOH.

"Fig and Olive has been very cooperative, responsive and transparent throughout this process

and has complied with the directive issued from the department."

7. Fig & Olive met the following requirements, which allowed their operations to be

restored by DOH:

• Provided evidence/invoices of the clean-up and sanitization of the kitchen/premises;

• Verified employee health training, which included signed forms;

Destroyed current food inventory;

Corrected all violations cited in recent inspections;

• Provided a Standard Operating Procedure for food handling and preparation; and

Implemented training program to reinforce good retail practices.

8. Through follow-up inspections, DOH has been able to confirm that Fig & Olive

has removed all conditions that may have contributed to the salmonella outbreak. DOH has

increased surveillance of the establishment to ensure compliance with food safety regulations

and to ultimately protect the health of the city's residents, workers and visitors .

Salmonella

9. The term Salmonella refers to a group or family of bacteria that variously cause

illness in humans. The taxonomy and nomenclature of Salmonella have changed over the years

3


and are still evolving. Currently, the Centers for Disease Control and Prevention (CDC)

recognizes two species, which are divided into seven subspecies. These subspecies are divided

I

into over 50 serogroups based on somatic (0) antigens present. The most common Salmonella

serogroups are A, 8, C, D, E, F, and G. Serogroups are further divided into over 2,500

serotypes. Salmonella serotypes are typically identified through a series of tests of antigenic

formulas listed in a document called the Kauffmann-White Scheme published by the World

Health Organization Collaborating Centre for Reference and Research on Salmonella.

I 0. Salmonella is an enteric bacterium, which means that it lives in the intestinal

tracts of humans and other animals, including birds. Salmonella bacteria are usually transmitted

to humans by eating foods contaminated with animal feces or foods that have been handled by

infected food service workers who have practiced poor personal hygiene. Contaminated foods

usually look and smell normal. Contaminated foods are often of animal origin, such as beef,

poultry, milk, or eggs, but all foods, including vegetables, may become contaminated. Many raw

foods of animal origin are frequently contaminated, but thorough cooking kills Salmonella.

Medica l Complications of Salmonel/osi.

II . The term reactive at1hritis refers to an inflammation of one or more joints,

following an infection localized at another site distant from the affected joints. The predominant

site of the infection is the gastrointestinal tract. Several bacteria, including Salmonella, induce

septic arthritis. The resulting joint pain and inflammation can resolve completely over time or

permanent joint damage can occur.

12. The reactive arthritis associated with Reiter's may develop after a person eats

food that has been tainted with bacteria. In a small number of persons, the joint inflammation is

accompanied by conjunctivitis (inflammation of the eyes), and uveitis (painful urination). Id.

4


This triad of symptoms is called Reiter's Syndrome. Reiter's syndrome, a form of reactive

atthritis, is an uncommon but debilitating syndrome caused by gastrointestinal or genitourinary

infections. The most common gastrointestinal bacteria involved are Salmonella, Campylobacter,

Yersinia, and Shigella. A triad of arthritis, conjunctivitis, and urethritis characterizes Reiter's

syndrome, although not all three symptoms occur in all affected individuals.

13. Salmonella is also a cause of a condition called post infectious irritable bowel

syndrome (IBS), which is a chronic disorder characterized by alternating bouts of constipation

and diarrhea, both of which are generally accompanied by abdominal cramping and pain. fn one

recent study, over one-third of IBS sufferers had had IBS for more than ten years, with their

symptoms remaining fairly constant over time. IBS sufferers typically experienced symptoms

for an average of 8. 1 days per month.

Plaintiff Jossclinc De Saint Just's Illness

14. The plaintiff dined at the defendant's restaurant on Saturday, September 5 with a

companion. She ordered drinks, a crostini appetizer, tuna carpaccio, and a truffle mushroom

croquet, with an apple tart and vanilla ice cream.

15. Two days later, the plaintiff began to feel extreme fatigue. And that night she

began to suffer from repeated bouts of diarrhea coupled with severe abdominal cramping. The

plaintiff experienced bloating and her stomach ultimately became distended.

16. The plaintiffs symptoms lasted all week. Her abdominal cramps remained

excruciatingly severe throughout. She called a physician on Thursday of that week who advised

her to give a stool specimen at a local lab.

17. Still in pain from her abdominal cramping, the plaintiff saw a physician on

Friday, September 11, during a pre-scheduled appointment. The plaintiffs physician took blood

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samples for testing, prescribed the antibiotic Ciprofioxacin, and the anti-spasmodic Bentyl for

the abdominal cramps.

18. The plaintiff's lab samples ultimately tested positive for Salmonella, at which

time she was prescribed a different antibiotic.

19. To date, the plaintiff continues to suffer from severe bloating and intermittent

crampy pain. She is scheduled to visit her physician again in three weeks for an additional stool

test.

IV. CAUSES OF ACTION

COUNT I (Strict Liability)

20. The defendant was at all times relevant hereto the manufacturer and seller of the

adulterated food product that is the subject of the action.

21. The adulterated food product that the defendant manufactured, distributed, and/or

sold was, at the time it left the defendant's control, defective and unreasonably dangerous for its

ordinary and expected use because it contained Salmonella, a deadly pathogen.

22. The adulterated food product that the defendant manufactured, distributed, and/or

sold was delivered to the plaintiff without any change in its defective condition. The adulterated

food product that the defendant manufactured, distributed, and/or sold was used in the manner

expected and intended, and was consumed by the plaintiff.

23. The defendant owed a duty of care to the plaintiff to design, manufacture, and/or

sell food that was not adulterated, which was fit for human consumption, that was reasonably

safe in construction, and that was free of pathogenic bacteria or other substances injurious to

human health. The defendant breached this duty.

24. The defendant owned a duty of care to the plaintiff to design, prepare, serve, and

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sell food that was fit for human consumption, and that was safe to the extent contemplated by a

reasonable consumer. The defendant breached this duty.

25. Plaintiff suffered injury and damages as a direct and proximate result of the

defective and unreasonably dangerous condition of the adulterated food product that the

defendant manufactured, distributed, and/or sold.

COUNT II (Negligence)

26 . The defendant owed to the plaintiff a duty to use reasonable care in the

manufacture, distribution, and sale of its food product, the breach 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.

27. 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, and was therefore negligent. The plaintiff is 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.

28. The defendant had a duty to properly supervise, train, and monitor its respective

employees, and to ensure their compliance with all applicable statutes, laws, regulations, or

safety codes pertaining to the manufacture, distribution, storage, and sale of similar food

products, but it failed to do so, and was therefore negligent.

29. The defendant had a duty to use ingredients, supplies, and other constituent

materials that were reasonably safe, wholesome, free of defects, 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 it failed to do so, and was therefore

7


negligent.

30. As a direct and proximate result of the defendant's acts of negligence, the plaintiff

sustained injuries and damages in an amount to be determined at trial.

V. DAMAGES

31. The plaintiff has suffered general, special, incidental, and consequential damages

as the direct and proximate result of the acts and omissions of the defendant, in an amount that

shall be fully proven at the time of trial. These damages include, but are not limited to: damages

for general pain and suffering; damages for loss of enjoyment of life, both past and future;

medical and medical related expenses, both past and future; travel and travel-related expenses,

both past and future; emotional distress, both past and future; pharmaceutical expenses, both past

and future; and all other ordinary, incidental, or consequential damages that would or could be

reasonably anticipated to arise under the circumstances.

PRAYER FOR RELIEF

WHEREFORE, the plaintiff prays for judgment against defendant as follows :

A. Ordering compensation for all general, special, incidental, and consequential

damages suffered by the plaintiff as a result of the defendant's conduct in the amount of TWO

HUNDRED FIFTY THOUSAND DOLLARS ($250,000);

B. Ordering statutory prejudgment interest;

C. Awarding plaintiff reasonable attorneys ' fees and costs, to the fullest extent

allowed by Jaw; and

D. Granting all such additional and/or further relief as this Court deems just and

equitable.

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JURY DEMAND

Plaintiff hereby demands a trial by jury with respect to each claim in this

Complaint.

DATED: September 18, 2015

REGAN ZAMBRI LONG, PLLC

By: Is/ Salvatore J Zambri Salvatore J. Zambri #439016 [email protected] 1919 M Street, N.W., Suite 350 Washington, D.C. 20036 Telephone: 202.822.1899 Co-Counsel for Plaintiff

MARLER CLARK, LLP, PS

By: Is/ William D. Marler William D. Marler, Esq. (Admission pro hac vice pending) bmar!er@mar!erclar!ccom 1301 Second Avenue, Suite 2800 Seattle, W A 9810 1 Telephone: 206-346-1888 Co-Counsel for Plaintiff

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Case 1:15-cv-01565 Document 1-1 Filed 09/24/15 Page 1 of 2

CIVIL COVER SHEET o~.;,-...... , , ,.,; , ·. ,,., ..... , .

I. (a) PLAINTIFFS DEFENDANTS

JOSSELINE DE SAINT JUST FIG & OLIVE DC LLC

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF 88888 COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT

(EXCEPT IN U.S. PLAI NTIFF CASES) (TN U.S. PLAINTIFF CASES ONLY) NCHE fNLI\NUCONDEMNAIION CA~E:-i l iSE IIIELlJCA riUN()l-' \IIElRAcrutl ANDI NVtlLVEIJ

(c) ATTORNEYS (F IR M NAME. ADD RESS. AND TELEPHONE NUMB ER) ATTORNEYS (JF KNOWN)

Salvatore J. Zambri Regan Zambri & Long, PLLC 1919 M Street, N.W, Suite 350 Washington, DC 20036

II. BASIS OF JURISDICTION fll. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR (PLACE AN x IN ONE BOX ONLY) PLAINTIFF AND ONE BOX FOR DEFENDANT) I' OR OIV F.ItS ITY CASES ONL\'!

0 0 PTF OFT PTF OFT

I US Government 3 Federal Question Plaintiff (U.S. Government Not a Party) Citizen ofthis State 01 01 lncorp01 a ted or Principal Place 04 04

of Business in This State

0 2 US Government G) 4 Diversity Citizen of Another State (~)2 02 Incorporated and P1incipal Os 05 Defendant (Indicate Citizenship of

Parties in item Ill) Place of Business in Another Stale

Citizen or Subject of a 03 Foreign Country

03 Foreign Nation 06 06

IV. CASE ASSIGNMENT AND NATURE OF SUIT (Pla ce an X in one catcg01·y, A-N, that best I'Cil rcs cn ts your Cause of Action and one in a co·aTesponding Nature of Suit)

0 A. Antitrust

0 410 Antitrust

0 B. Personallnjwyl Malpractice

0 31 U Airplane 0 315 Airplane Product Liability 0 320 Assault, Libel & Slander 0 330 Federal Employers Liability 0340Marine 0 345 Marine Product Liability 0 350 Motor Vehicle 0 355 Motor Vehicle Product Liability 0 360 Other Personal lnjUI')' 0 362 Medical Malpractice [K] 365 Product Liability

0 367 Health Care/Pharmaceutical Personal Injury Product Liability

0 368 Asbestos Product Liability

0 E. General Civil (Other) OR

llenll'mpcl·ty 'Rnulo·up tc\ 0 422 Appeai27USC 158

0 C. Administrative Agency Review

0 151 Medica•·e Act

Socia l Sccurirv 0 861 HIA (13951'1) 0 862 Black Lung (923) 0 863 DIWC/DIWW (405(g)) 0 864 SSID Title XVI 0 865 RSI (405(g)) Other Statutes 0 891 Agl'icultural Acts 0 893 Environmental Matters 0 890 Other Statutory Actions (If

Administrative Agency is Involved)

0 F. ProSe General Civil Forfclture/Pettalll'

0210 Land Condemnation 0220 Foreclosure 0 423 Withdrawa128 USC 157

0 625 Drug Related Seizure of Property 21 USC 881

06900thet· 0230 Rent, Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property

Pcrsonnl PI'Clperty 0370 Other fraud 0371 Truth in Lending 0 380 Other Personal Property

Damage 0 385 Property Damage

Product Liability

Prisoner Petitions 0 535 Death Penalty D 540 Mandamus & Other 0 550 Civil Rights 0 555 Prison Conditions D 560 Civil Detainee- Conditions

of Confinement

l'ro crh· Hi,. hts 820 Copyl'ights

0830Patent 0 840 Trademark

Federal Tax Suits 0 870 Taxes (US plaintiff or

defendant)

Olher Sla tutes 0 375 False Claims Act D 400 State Reapportionment D 430 Banks & Banking 0 450 Commerce/ICC

Rates/etc. 0 460 Deportation 0 462 Naturalization

Application 0465 Othe1·lmmigration

Actions 0 470 Racketeer Influenced

& Corrupt Organization

0 871 IRS-Third Party 26 USC 7609

0 D. Temporary Restraining Order/Preliminary Injunction

Any nature of suit from an y categoa·y may be selected fo•· this category of case assignment.

*(If Antitrust, then A governs)*

0480 Consumer Credit D 490 Cable/Satellite TV 0850 Secua·ities/Conunodities/

Exchange 0896 Arbitration 0899 Administrative Procedure

Act/Review or Appeal of Agency Decision

D 950 Constitutionality of State Statutes

0890 Other Statutory Actions (if not administrative agency review or Privacy Act)


0 G. Habeas Corpus/ 0 H. Employment 0 I. FOIA/Privacy Act 0 J. Student Loan 2255 Discrimination

0 530 Habeas Corpus- General 0 442 Civil Rights- Employment 0 895 Freedom of lnfor·mation Act D 152 Recovery of Delitullcd

0 510 MotionNacate Sentence (criteria: race, gender/sex, 0 890 Other Statutory Actions Student Loan

0 463 Habeas Corpus- Alien national origin, (if Privacy Act) (excluding veterans)

Detainee discrimination, disability, age, religion, retaliation)

*(If pro sc, select this deck)* *(lfpm se, select this deck)*

0 K. Labor/ERISA 0 L. Other Civil Rights 0 M. Contract 0 N. Three-Judge (non-employment) (non-employment) Court

0 110 Insurance 0 710 Fair Labor Standar·ds Act 0441 Voting (if not Voting Rights O no Marine 0 441 Civil Rights- Voting Ono Labor/Mgmt. Relations Act) 0 130 Miller Act (if Voting Rights Act) 0 740 Labor Railway Act 0 443 Housing/Accommodations D 140 Negotiable Instrument 0 751 Family and Medical 0440 Other Civil Rights D 150 Recovery of Overpayment

Leave Act 0 445 Americans w/Disabilities- & Enforcement of 0 790 Other Labor Litigation Employment Judgment 0 791 Em pl. Ret. Inc. Security Act 0 446 Americans w/Disabilities- 0 153 Recovery of Overpayment

Other of Veteran's Benefits 0 448 Education D 160 Stockholder's Suits

0 190 Other Contracts 0 195 Contract Product Liability D 196 Franchise

V. ORIGIN

0 I Original 0 2 Removed 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multi-district 07 Appeal to Proceeding from State Appellate Court Reopened another district Litigation District Judge

Court (specify) from Mag. Judge

VI. CA USE OF ACTION (CITE THE U.S. CIVI L ST AT UTE UNDER WHICH YOU ARE FILING AND WRITE A BRI EF ST ATEMENT OF CAUSE.)

28 USC Section 1332(a)(1) and (e); Food poisoning, product liability, strict liability, negligence.

VII. REQliESTED IN CHECK IF THIS lS A CLASS DEMAND$ 250,000.00 Check YES only if demnnd~d 111 complaint ACTION UNDER F,R C.P 23 YES 00 NO D COMPLAINT JURY DEMAND:

VIII. RELATED CASE(S) (See inslluction) YES[KJ No CJ If yes. please complete related case form IF ANY

DATE: 09/24/2015 I SIGNATURE OF ATTORNEY OF RECORD /s/ Salvatore J. Zambri

INSTRUCTIONS FOR CO MPLETING CIVIL COVER SHEET JS-44 Authot·ity for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court, This form, approved by the Judicial Conference of the United States in September I 974, is required t"or the use of the Clerk of CoUI"t for the purpose of initiating the civil docket sheet Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed Listed below are tips for completing the civil cover sheet These tips coincide with the Roman Nume1als on the cover sheet

J. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use I I 00 I to indicate plaintiff if resident of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States

Ill . CITIZENSHIP OF PRINCIPAL PARTIES This section is completed !!ll!y if diversity of citizenship was selected as the Basis of Jurisdiction under Section ll

IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best represents the Qii!:w!ry cause of action found in your complaint You may select only one category You must also select one corresponding nature of suit found under the category of the case

VI. CAUSE OF ACTION Cite the US Civil Statute under which you a1e filing and write a brief statement of the primary cause

Vlll. RELATED CASE(S), IF ANY : If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk 's Office

Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form


AO 440 (Rev. 06112) Summons in a Civil Action

UNITED STATES DISTRICT COURT

JOSSELINE DE SAINT JUST

PlaintifJ(s)

V.

FIG & OLIVE DC LLC

Defendant(s)

for the

) ) ) ) ) ) ) ) ) ) ) )

Civil Action No.

SUMMONS IN A CIVIL ACTION

To: (Defendant's name and address) FIG & OLIVE DC LLC C/0 CORPORATION SERVICE COMPANY 1090 VERMONT AVENUE , N.W. WASHINGTON , DC 20005

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it)- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. I 2 (a)(2) or (3)- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are : Salvatore J . Zambri , Esq .

Regan Zambri & Long , PLLC 1919 M Street, N.W., Suite 350 Washington, DC 20036

If you fail to respond, judgment by default will be entered against you for the reli ef demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date: Signature of Clerk or Deputy Clerk


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (I))

This summons for (name of individual and title, if any)

was received by me on (date)

0 I personally served the summons on the individual at (place)

on (date)

0 I left the summons at the individual's residence or usual place of abode with (name)

; or

, a person of suitable age and discretion who resides there, - ------

on (date) 'and mailed a copy to the individual's last known address; or ------

0 I served the summons on (name of individual) , who is -- -designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

0 I returned the summons unexecuted because ; or

0 Other (specifY) :

My fees are$ for travel and $ for services, for a total of$ 0.00 ------

I declare under penalty ofpetjury that this information is true.

Date: Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

v. - Food Poison Journal | Food Policy & Safety | Marler ... · The plaintiff, Josseline De Saint...

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