STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) IN THE CIRCUIT COURT OF COOK COUNTY, LAW DIVISION COOK COUNTY, ILLINOIS DARYL VAN SCHOUWEN, ) Individually and as Father and next ) friend of the minor child, KVS, ) ) Plaintiff, ) ) No. vs. ) ) FLATLAND HYDROPONICS, ) INC., d/b/a Tiny Greens Organic ) Farm; and JOHN DOE ) RESTAURANT d/b/a Jimmy ) John s Gourmet Sandwiches, ) Located at 264 W. 162 nd, South ) Holland, Cook County, Illinois, ) ) Defendants. ) ) COMPLAINT AT LAW COMES NOW the plaintiff DARYL VAN SCHOUWEN, Individually and as father and next friend for the minor child KVS, by and through their attorneys, MARLER CLARK, L.L.P., P.S. and NEWLAND, NEWLAND, AND NEWLAND, complaining of the defendants FLATLAND HYDROPONICS, INC. d/b/a Tiny Greens Organic Farm and JOHN DOE RESTAURANT d/b/a Jimmy John s Gourmet Sandwiches located at 264 W. 162 nd, South Holland, Cook County, Illinois, and to allege and state as follows: I. PARTIES 1.1 The plaintiff resides with his daughter, KVS, in South Holland, Cook
County, Illinois. At all times material, KVS was a minor child. 1.2 At all times material, the defendant Flatland Hydroponics, Inc., d/b/a Tiny Greens Organic Farm (hereinafter Tiny Greens ) was a corporation organized and existing under the laws of the State of Illinois, which carried on in the ordinary course of business at 2314 N. High Cross Road, Urbana, Illinois, a sprout production and sale business. 1.3 At all times material, the defendant John Doe Restaurant d/b/a Jimmy John s Gourmet Sandwiches located at 264 West 162 nd Street, South Holland, Cook County, Illinois (hereinafter Jimmy Johns ), the specific identity of which business is not presently known, conducted business in Cook County, Illinois, consisting of the manufacture and sale of ready-to-eat sandwiches. II. RELEVANT FACTS 2.1 THE OUTBREAK: 2.1.1 On or about December 17, 2010, the Illinois Department of Health (IDPH) announced that it was investigating a Salmonella outbreak that had sickened at least 46 Illinois residents in 9 counties. The strain of Salmonella involved in the outbreak was Salmonella I 4,5,12,i-. IDPH indicated that the outbreak was linked to alfalfa sprouts produced by Tiny Greens, and that many of the outbreak cases had been sickened after eating Jimmy Johns sandwiches containing the contaminated sprouts. 2.1.2 On or about December 21, 2010, Jimmy John s restaurants across the state of Illinois removed sprouts from their menus. Eight days later, on or about
December 29, 2010, Tiny Greens recalled all alfalfa and spicy sprout products due to their involvement in the Salmonella I 4,5,12,i- outbreak. 2.1.3 Tiny Greens recall described at paragraph 2.1.2 occurred after the Centers for Disease Control and Prevention (CDC) announcement on December 23, 2010 that the Illinois Salmonella I 4,5,12,i- outbreak was part of a larger national outbreak that had sickened 84 people in 16 states and the District of Columbia. The CDC linked the national outbreak to the consumption of alfalfa sprouts as well, and indicated that many of the 84 people involved in the outbreak had consumed sprouts on Jimmy John s sandwiches in the days prior to the onset of their illnesses. 2.1.4 On December 28, 2010, the CDC updated its case-count to include 94 confirmed cases in the national Salmonella I 4,5,12,i- outbreak linked to sprouts. Illinois has reported more than half of those cases, with at least 57 confirmed Salmonella I 4,5,12,i- illnesses in the outbreak. 2.1.5 The Salmonella I 4,5,12,i- outbreak described in paragraphs 2.1.1 through 2.1.4 is at least the 38 th outbreak to be linked to sprouts in the United States and Canada in the last 20 years. In fact, as of the date of this complaint, yet another Salmonella outbreak linked to sprouts is occurring in the states of Washington and Oregon. 2.2 KVS s Illness: 2.2.1 On or about November 22, 2010, KVS purchased and consumed a Beach Club sandwich from the defendant Jimmy Johns restaurant located at 264 West 162 nd Street, South Holland, Cook County, Illinois. The sandwich contained alfalfa sprouts that Tiny Greens had produced and sold to Jimmy Johns, and that were later
recalled by Tiny Greens after implication in the Salmonella outbreak described at paragraph 2.1 above. 2.2.2 Onset of symptoms related to KVS s Salmonella I 4,5,12,iinfection occurred on or about Friday, November 26, 2010. Symptoms initially included alternating fever and chills, general fatigue, and body aches, but quickly progressed to also include a headache, nausea, vomiting, abdominal cramps, and severe diarrhea. 2.2.3 On or about the morning of Monday, November 29, 2010, KVS s parents were frightened to find their daughter lying on the floor outside the bathroom door. Her lips appeared dried, and her heart-rate, as taken by her mother, a registered nurse, was well over 100 beats per minute. KVS was obviously dehydrated. She then told her parents that her bouts of diarrhea had become bloody as well. 2.2.4 KVS s parents quickly called her primary physician, who advised them to take KVS to the local emergency room for treatment. At the ER, KVS was treated with various medications, including anti-nausea drugs, in an attempt to relieve some of her discomfort. The attending physician diagnosed KVS with food poisoning, and prescribed Zofran for treatment of nausea, Loperamide for diarrhea, and Ciprofloxacin, an antibiotic, to treat the likely bacterial infection. 2.2.5 After discharge from the emergency room, KVS continued to be ill, and had to stay home from school from November 29 through December 3, 2010 as a result. That week, she did little more than sleep and ingest the medications that the ER physician had prescribed. She continued to be ill, though the relentless pace of her bouts of diarrhea began to fade. 2.2.6 KVS followed with her primary physician at least twice for further
care and management of her symptoms. At one of these follow-up appointments, she submitted a stool sample that ultimately tested positive for Salmonella I 4,5,12,i-. 2.2.6 KVS continued to be ill with waning symptoms after she returned to school on December 6, 2010. She had missed more than a week of classes, and basketball practices and games, and found that she was unable to participate in either school or athletics at the level that she was accustomed to. She had a difficult time, in particular, catching up in her honors classes after missing five days straight from school. KVS continued to be extremely weak and frail for some time after resolution of her acute illness. III. COUNT I (STRICT PRODUCT LIABILITY) 3.1. The plaintiff incorporates the preceding paragraphs of this Complaint, by this reference, as if each and every of these paragraphs were set forth here in its entirety. 3.2. The defendants manufactured, distributed, and sold the adulterated food that injured KVS and caused her to become infected with Salmonella. 3.3. The defendant manufactures food products for sale to the public. 3.4. Food that is contaminated with Salmonella is unsafe when put to the use reasonably foreseeable considering the nature of the product. Namely, Salmonella contaminated food is unfit for human consumption. 3.5. The food that KVS purchased from the defendant was contaminated with Salmonella. KVS s consumption of the contaminated food caused her to become infected with Salmonella and to suffer injuries as a direct and proximate result. 3.6. The food that KVS purchased and consumed was contaminated with
Salmonella when it left the defendants control. 3.7. The defendants are strictly liable to the plaintiff for the harm proximately caused by their manufacture and sale of an unsafe and defective food product. WHEREFORE, the plaintiff prays for judgment against the defendants, FLATLAND HYDROPONICS, INC. d/b/a Tiny Greens Organic Farm and JOHN DOE RESTAURANT d/b/a Jimmy John s Gourmet Sandwiches located at 264 W. 162 nd, Cook County, Illinois, in an amount in excess of the minimum amount allowed to establish jurisdiction in the Law Division of the Circuit Court of Cook County, Illinois. IV. COUNT II (NEGLIGENCE) 4.1. The plaintiff incorporates the preceding paragraphs of this Complaint, by this reference, as if each and every of these paragraphs were set forth here in its entirety. 4.2. The defendants designed, manufactured, distributed, and sold food products that were adulterated with the Salmonella bacteria, a potentially deadly pathogen. These products, as a result of adulteration, were unfit for human consumption, and were not reasonably safe as designed, constructed, manufactured, and sold. 4.3. The defendants owed a duty to all consumers of their products to manufacture and sell food that was safe to eat, that was not adulterated with potentially deadly pathogens, like Salmonella, and that was not in violation of applicable food and safety regulations. 4.4. The defendants owed a duty to all consumers to maintain their premises in a sanitary and safe condition so that no one eating food produced at either of the
defendants premises would be exposed to, or infected by, a potentially deadly pathogen, like Salmonella. 4.5. The defendants breached the duties they owed to consumers, including KVS, by committing the following acts and omissions of negligence: 4.5.1 Failed to adequately maintain or monitor the sanitary conditions of its food, drink, water, premises, and employees; 4.5.2 Failed to properly operate the locations where it manufactured its food in a safe, clean, and sanitary manner; 4.5.3 Failed to prevent the transmission of Salmonella from its food, drink, water, premises, or employees to the ultimate consumers of its products, and those foreseeably at risk of secondary transmission of disease; 4.5.4 Failed to properly train its employees and agents how to prevent the transmission of Salmonella on its premises, or in its food, drink and water; 4.5.5 Failed to properly supervise its employees and agents to prevent the transmission of Salmonella on its premises, or in its food, drink and water; 4.5.6 Manufactured and sold adulterated food in violation of 410 ILCS 620/3.2; 4.5.7 Stored, offered, and delivered food in violation of 410 ILCS 620/3.1 and 410 ILCS 620/3.4; 4.5.8 Failed to maintain its premises in a clean, sanitary, and healthful manner in violation of 410 ILCS 650/1 and 410 ILCS 650/2; and 4.5.9 Failed to properly and carefully select and monitor the entities from which it purchased and received raw materials used in the production of the their
products. 4.6. KVS was injured and sustained personal injury and damages as the proximate result of the defendants negligent acts and omissions, as set forth above. WHEREFORE, the plaintiff prays for judgment against the defendants, FLATLAND HYDROPONICS, INC. d/b/a Tiny Greens Organic Farm and JOHN DOE RESTAURANT d/b/a Jimmy John s Gourmet Sandwiches located at 264 W. 162 nd, Cook County, Illinois, in an amount in excess of the minimum amount allowed to establish jurisdiction in the Law Division of the Circuit Court of Cook County, Illinois. V. COUNT III (BREACH OF WARRANTY) 5.1. The plaintiff incorporates the preceding paragraphs of this Complaint, by this reference, as if each and every of these paragraphs were set forth here in its entirety. 5.2. By offering food for sale to the general public, the defendants expressly warranted that such food was safe to eat, that it was not adulterated with a deadly pathogen, and that the food had been safely prepared under sanitary conditions. 5.3. By offering food for sale to the general public, the defendants also impliedly warranted that such food was safe to eat, that it was not adulterated with a deadly pathogen, and that the food had been safely prepared under sanitary conditions. 5.4. The defendants breached their express and implied warranties with regard to the food they manufactured and that was ultimately consumed by KVS. 5.5. KVS suffered personal injury and damages as a foreseeable consequence of the defendants breach of warranties, as set forth above, and the plaintiff is thus
entitled to recover for all actual, consequential, and incidental damages that flow directly and in a foreseeable fashion from these breaches. WHEREFORE, the plaintiff prays for judgment against the defendants, FLATLAND HYDROPONICS, INC. d/b/a Tiny Greens Organic Farm and JOHN DOE RESTAURANT d/b/a Jimmy John s Gourmet Sandwiches located at 264 W. 162 nd, Cook County, Illinois, in an amount in excess of the minimum amount allowed to establish jurisdiction in the Law Division of the Circuit Court of Cook County, Illinois. VI. COUNT IV (FAMILY MEDICAL EXPENSE ACT) 6.1 The plaintiffs incorporate the preceding paragraphs of this Complaint, by this reference, as if each and every of these paragraphs were set forth here in its entirety. 6.2 As a direct and proximate result of one or more of the aforesaid acts or omissions of Defendants FLATLAND HYDROPONICS INC d/b/a/ Tiny Greens Organic Farm and JOHN DOE RESTAURANT d/b/a Jimmy John s Gourmet Sandwiches, Plaintiff DARYL VAN SCHOUWEN became obligated to various hospitals and medical providers for expenses under The Family Expense Act 750 ILCS 65/15 and brings this action to recover said expenses incurred by minor child KVS. WHEREFORE, Plaintiff DARYL VAN SCHOUWEN demands judgment against defendants FLATLAND HYDROPONICS INC d/b/a/ Tiny Greens Organic Farm and JOHN DOE RESTAURANT d/b/a Jimmy John s Gourmet Sandwiches in an amount in excess of the minimum jurisdictional amount to establish jurisdiction in the Law Division of Cook County, Illinois.
Respectfully submitted, DARYL VAN SCHOUWEN Individually and as next friend of Minor KVS, By: One of Their Attorneys Gary A. Newland NEWLAND, NEWLAND & NEWLAND 121 S. Wilke Road, Ste. 101 Arlington Hts, IL 60005 Ph: 847-797-8000 Fax: 847-797-9090 Attorney No. 32700 And Co-Counsel (pending admission pro hac vice) William D. Marler MARLER CLARK, LLP, PS 6600 Bank of America Tower 701 Fifth Ave. Seattle, WA 98104 Ph: 206-346-1888 Fax: 206-346-1898