Case 3:20-cv-01285-YY Document 1 Filed 08/03/20 Page 1 of 11
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`David F. Sugerman, OSB No. 862984
`SUGERMAN LAW OFFICE
`707 SW Washington, Suite 600
`Portland, OR 97205
`Telephone: (503) 228-6474
`Email: david@sugermanlawoffice.com
`SugermanLawOffice.com
`(Additional counsel below signature)
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`UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
`PORTLAND DIVISION
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`LORI DAVIES,
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`Plaintiff,
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`v.
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`THOMSON INTERNATIONAL, INC.,
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`Defendant.
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`Case No.
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`COMPLAINT
`JURY TRIAL DEMANDED
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`Plaintiff LORI DAVIES, by and through her attorneys of record, The Lange Law Firm,
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`PLLC and David F. Sugerman, Attorney PC, and alleges as follows:
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`I.
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`PARTIES
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`1.
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`2.
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`At all times relevant hereto, Plaintiff was a resident of Washington County, Oregon.
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`Thomson International, Inc. (“Thomson International”) is a corporation organized and
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`existing under the laws of the State of California with its principal place of business in
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`California. At all times relevant hereto and upon information and belief, Thomson International
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`is a manufacturer, distributor and seller of agricultural products in the United States, including
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`Case 3:20-cv-01285-YY Document 1 Filed 08/03/20 Page 2 of 11
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`onions. Thomson International distributes its food products, including onions, to retail locations
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`in all fifty U.S. states, including Oregon. Upon information and belief, Thomson International’s
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`principal place of business is located at 9852 Buena Vista Blvd., Bakersfield, California 93307.
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`3.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28 USC §
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`II. JURISDICTION AND VENUE
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`1332(a) because the matter in controversy exceeds $75,000.00, exclusive of costs, it is between
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`citizens of different states, and because Defendant has certain minimum contacts with the State of
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`Oregon such that the maintenance of the suit in this district does not offend traditional notions of
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`fair play and substantial justice.
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`4.
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`Venue in the United States District Court for the District of Oregon is proper pursuant to
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`28 USC § 1391(a)(2) because a substantial part of the events or omissions giving rise to Plaintiff’s
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`claims and causes of action occurred in this judicial district, and because Defendant Thomson
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`International was subject to personal jurisdiction in this judicial district at the time of the
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`commencement of the action.
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`III. FACTS
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`The 2020 Salmonella Outbreak Caused by Onions Manufactured and/or Distributed
`by Thomson International, Inc.
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`On July 21, 2020, the Centers for Disease Control and Prevention (CDC) announced that
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`A.
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`5.
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`CDC PulseNet identified an outbreak of 13 Salmonella Newport infections in three states. Since
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`being identified, the outbreak has rapidly grown to a total of 396 infections in 34 states.
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`6.
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`The breakdown per state as of July 31, 2020 includes: Arkansas (6), Arizona (14),
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`California (49), Colorado (10), Florida (3), Idaho (5), Illinois (10), Indiana (2), Iowa (15), Kansas
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`(1), Kentucky (1), Maine (4), Maryland (1), Michigan (23), Minnesota (10), Missouri (6), Montana
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`(33), Nebraska (5), Nevada (5), New York (4), North Carolina (3), North Dakota (5), Ohio (7),
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`Oregon (71), Pennsylvania (2), South Carolina (1), South Dakota (11), Tennessee (5), Texas (1),
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`Utah (61), Virginia (4), Washington (2), Wisconsin (5), and Wyoming (11).
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`7.
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`As of the date of this Complaint, of the 236 ill people with information available, 59
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`hospitalizations have been reported. No deaths have been reported.
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`8.
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`9.
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`Illnesses started on dates ranging from June 19, 2020, to July 12, 2020.
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`Ill people range in age from less than 1 to 102 years, with a median age of 39. Fifty-two
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`percent of ill people are female. Some illnesses might not yet be reported due to the time it takes
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`between when a person becomes ill and when the illness is reported. This takes an average of 2 to
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`4 weeks.
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`10.
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`In its July 31, 2020 announcement, the CDC stated that Epidemiologic and preliminary
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`traceback evidence indicates that red onions are the likely source of this outbreak. The traceback
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`information collected identified Thomson International, Inc. of Bakersfield, CA as a likely source
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`of red onions in this outbreak.
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`11.
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`On the same day as the CDC announcement, Thomson International issued a recall of all
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`varieties of onions that could have come in contact with potentially contaminated red onions, due
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`to the risk of cross-contamination. This recall included red, white, yellow, and sweet onions from
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`Thomson International, Inc.
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`12.
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`The FDA’s investigation is ongoing to determine if products went to additional stores or
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`states.
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`13.
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`The FDA is currently working with state partners to trace back the onions to identify the
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`source of the pathogen, to determine the full distribution of the onions, and to learn more about
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`how the contamination occurred.
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`B.
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`Salmonella
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`14.
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`The term Salmonella refers to a group or family of bacteria that cause illness in humans.
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`Salmonella lives in the intestinal tracts of humans and other animals, including poultry. But the
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`type of Salmonella that may not make poultry sick can make humans very ill.
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`15.
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`Currently, the Centers for Disease Control and Prevention (CDC) recognize two species,
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`which are divided into six subspecies. These subspecies are divided into over 50 serogroups based
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`on somatic (O) antigens present.
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`16.
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`The most common Salmonella serogroups are A, B, C, D, E, F, and G. Serogroups are
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`further divided into over 2,500 serotypes. Salmonella serotypes are typically identified through a
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`series of tests of antigenic formulas listed in a document called the Kauffmann-White Scheme
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`published by the World Health Organization Collaborating Centre for Reference and Research on
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`Salmonella.
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`17.
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`Salmonella bacteria are typically transmitted to humans by food or water contaminated
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`with feces. Such foods usually look and smell normal. Nothing about the products look, taste, or
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`smell would warn a consumer that it was contaminated with Salmonella bacteria.
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`18.
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`After exposure, Salmonella bacteria travel to the lumen of the small intestines, then
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`penetrate the epithelium, multiply, and enter the blood. This infection process⎯also referred to as
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`the incubation period⎯usually takes 6 to 72 hours for the onset of symptoms. According to the
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`CDC, as little as one cell of Salmonella bacteria can cause infection.
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`19.
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`The acute symptoms of Salmonella gastroenteritis (or Salmonellosis) include nausea,
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`vomiting, diarrhea, fever, abdominal cramping and/or stomach pain, headache, dysuria, muscle
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`pain, fatigue, and dehydration.
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`20.
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`Doctors typically treat the symptoms of Salmonellosis with anti-nausea or anti-diarrhea
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`medications. Some physicians may prescribe antibiotics. Many severe cases may require
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`intravenous fluids for treatment of dehydration, usually in an emergency room or urgent-care
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`setting.
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`21.
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`Salmonella infections may also cause long-term side-effects, such as Reactive Arthritis
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`(RA), Septicemia, Bacteremia, chronic gallbladder infection, and Irritable Bowel Syndrome (IBS)
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`can develop, requiring extensive ongoing medical treatment and care. The elderly, infants, and
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`those with compromised immune systems are more likely to experience severe illness and long-
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`term complications from exposure to Salmonella bacteria. Salmonella infections can be fatal.
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`C.
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`22.
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`23.
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`Lori Davies Salmonella Infection Following Her Exposure to Salmonella-
`Contaminated Onions Manufactured and/or Distributed by Thomson International,
`Inc.
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` On or about July 5, 2020, Lori ate a burger that contained cut raw onions.
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`On or about July 7, 2020, Lori fell ill with fever and chills. Then, severe diarrhea
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`began. Lori then went to the emergency room, where she was admitted into the hospital.
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`24.
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`25.
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`Lori was hospitalized with a Salmonella infection from July 10-12.
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`On or about July 27, Oregon Health Authority informed Lori that her Salmonella infection
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`shared the same genetic fingerprint as the outbreak strain.
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`26.
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`Lori continues to recover and face uncertain future medical complications.
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`IV. CAUSES OF ACTION
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`FIRST CLAIM FOR RELIEF
`PRODUCT LIABILITY-STRICT LIABILITY
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`Defendant manufactured, distributed, and/or sold the adulterated food product that injured
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`27.
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`Plaintiff. The product was dangerously defective in that it was contaminated with Salmonella
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`bacteria.
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`28.
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`Defendant manufactured, distributed, and/or sold food products, and in particular, onions
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`for sale to the public.
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`29.
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`The adulterated food product that Defendant manufactured, distributed, and/or sold
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`was, at the time it left Defendant's control, defective and unreasonably dangerous for its
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`ordinary and expected use because it contained Salmonella, a deadly pathogen.
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`30. Adulterated food products that are contaminated with Salmonella are unsafe and thus
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`defective when used in a reasonably foreseeable manner—i.e., eating it.
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`31.
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` Salmonella-contaminated onions and food products are unfit for human consumption, and
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`unreasonably dangerous to an extent beyond that contemplated by the ordinary consumer.
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`32.
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`The adulterated food products that Plaintiff purchased and consumed from Defendant
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`were contaminated with Salmonella and were therefore, as a result, defective and unreasonably
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`dangerous.
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`33.
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`The adulterated food products that defendant manufactured, distributed, and/or sold was
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`delivered to Plaintiff without any change in its defective condition. The adulterated food product
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`that defendant manufactured, distributed, and/or sold was used in the manner expected and
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`intended, and was consumed by Plaintiff.
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`34.
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`The food products Plaintiff purchased and consumed were contaminated with
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`Salmonella when they left Defendant’s control.
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`35.
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`Plaintiff’s consumption of the contaminated onions caused them to become infected with
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`Salmonella and suffer injury, as a direct and proximate result.
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`36.
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`Defendant owed a duty of care Plaintiff to design, manufacture, and/or sell food that was
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`not adulterated, that was fit for human consumption, that was reasonably safe in construction, and
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`that was free of pathogenic bacteria or other substances injurious to human health. Defendant
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`breached this duty. Or. Rev. Stat. §30.920
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`37.
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`Defendant owned a duty of care to Plaintiff to design, prepare, serve, and sell food that was
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`fit for human consumption, and that was safe to the extent contemplated by a reasonable consumer.
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`Defendant breached this duty.
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`38.
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`Plaintiff suffered injury and damages as a direct result of the defective and unreasonably
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`dangerous condition of the adulterated food product that defendant manufactured, distributed,
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`and/or sold.
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`39.
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`Defendant is strictly liable to Plaintiff for the harm proximately caused by the
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`manufacture, distribution, and sale of an unsafe and defective onions products.
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`SECOND CLAIM FOR RELIEF
`BREACH OF WARRANTY
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`By offering onions for sale to the general public, Defendant impliedly warranted that
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`40.
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`such onions were safe to eat, that they were not adulterated with a deadly pathogen, and that the
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`onions had been safely prepared under sanitary conditions.
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`41.
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`Defendant breached the implied warranties with regard to the food and drink they
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`manufactured, distributed, and/or sold to Plaintiff. Defendant is liable to Plaintiff for breaching
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`express and implied warranties that it made regarding the adulterated product that Plaintiff
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`purchased. These express and implied warranties included the implied warranties of
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`merchantability and/or fitness for a particular use. Specifically, Defendant expressly warranted,
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`through its sale of food to the public and by the statements and conduct of its employees and
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`agents, that the food it prepared and sold was fit for human consumption and not otherwise
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`adulterated or injurious to health.
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`42.
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`Plaintiff alleges that the Salmonella-contaminated food that Defendant sold to plaintiff
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`would not pass without exception in the trade and was therefore in breach of the implied warranty
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`of merchantability.
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`43.
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`Plaintiff alleges that the Salmonella-contaminated food that Defendant sold to Plaintiff was
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`not fit for the uses and purposes intended, i.e. human consumption, and that this product was
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`therefore in breach of the implied warranty of fitness for its intended use.
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`44.
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`Plaintiff’s
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`injuries resulted from Defendant’s breach of implied warranties, and
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`Plaintiff is thus entitled to recover for all actual, consequential, and incidental damages that flow
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`directly and in a foreseeable fashion from these breaches.
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`THIRD CLAIM FOR RELIEF-NEGLIGENCE
`FIRST COUNT-NEGLIGENCE PER SE
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`Defendant had a duty to comply with all applicable state and federal regulations intended
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`45.
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`to ensure the purity and safety of its food product, including, but not limited to, the requirements
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`of the Federal Food, Drug and Cosmetics Act, 21 U.S.C. § 301 et seq. and the Oregon adulterated
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`food statutes (Or. Rev. Stat. § 616.205 et seq.).
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`46.
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`Defendant failed to comply with the provisions of the health and safety acts identified
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`above, and, as a result, was negligent per se in its manufacture, production, distribution, and/or
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`sale of food adulterated with Salmonella, a deadly pathogen.
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`47.
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`Plaintiff is among the class of persons designed to be protected by these statutes, laws,
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`regulations, safety codes or provision pertaining to the manufacture, distribution, storage, and sale
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`of similar food products.
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`48.
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`As a result of conduct by Defendant that was negligent per se, Plaintiff sustained injuries
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`and damages.
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`THIRD CLAIM FOR RELIEF-NEGLIGENCE
`SECOND COUNT-COMMON LAW NEGLIGENCE
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` Defendant designed, manufactured, distributed, and/or sold food products, including
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`49.
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`specifically onions, that were contaminated with Salmonella, a deadly pathogen. The onions, as a
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`result of contamination, were unfit for human consumption, thus defective, and were not
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`reasonably safe as designed, constructed, manufactured, distributed, and sold.
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`50.
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`Defendant owed a duty to all persons who consumed their products to manufacture,
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`distribute, and sell onions that were safe to eat, that were not adulterated with deadly pathogens,
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`like Salmonella, and that were not in violation of applicable food and safety regulations.
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`51.
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`Defendant owed to all persons who consumed their products a duty to maintain their
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`premises in a sanitary and safe condition so that the onions they manufactured, distributed, and
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`sold would not be contaminated with a deadly pathogen, like Salmonella.
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`52.
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`Defendant breached the duties owed to their customers by committing the following acts
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`and omissions of negligence:
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`a. Failed to adequately maintain or monitor the sanitary conditions of their products,
`premises, and employees;
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`b. Failed to properly operate their facilities in a safe, clean, and sanitary manner;
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`c. Failed to apply their food safety policies and procedures to ensure the safety and
`sanitary conditions of their food products, premises, and employees;
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`d. Failed to prevent the transmission of Salmonella to consumers of their onions;
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`e. Failed to properly train their employees and agents how to prevent the transmission of
`Salmonella on their premises, or in their food products;
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`f. Failed to properly supervise their employees and agents to prevent the transmission of
`Salmonella on their premises, or in their food products.
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`Defendant owed a duty to Plaintiff to use reasonable care in the manufacture, distribution,
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`53.
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`and sale of their food products, to prevent contamination with Salmonella - the observance of
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`which duty would have prevented or eliminated the risk that the defendant's food products would
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`become contaminated with Salmonella or any other dangerous pathogen. Defendant breached this
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`duty.
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`54.
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`Plaintiff’s injuries resulted from Defendant’s negligence.
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`V. DAMAGES
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`As the result of Defendants’ acts and omissions, Plaintiff suffered permanent injury
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`55.
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`economic and non-economic damages in an amount that shall be fully proven at the time of trial.
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`These damages include, but are not limited to: damages for general pain and suffering; damages
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`for loss of enjoyment of life, both past and future; medical and medical related expenses, both past
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`and future; travel and travel related expenses, past and future; emotional distress, past and future;
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`pharmaceutical expenses, past and future; and all other ordinary, incidental, or consequential
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`damages that would or could be reasonably anticipated to arise under the circumstances
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`VI. PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays as follows:
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`1) That the court award Plaintiff judgment against Defendant for damages in an amount
`in an amount not to exceed $2 million.
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`2) That the court additional award all such other sums as shall be determined to fully and
`fairly compensate Plaintiff for all general, special, incidental and consequential
`damages incurred, or to be incurred, by Plaintiff as the direct and proximate result of
`the acts and omissions of Defendant;
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`3) That the court award Plaintiff costs, disbursements incurred; and
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`4) That the court award such other and further relief as it deems necessary and proper in
`the circumstances.
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`Case 3:20-cv-01285-YY Document 1 Filed 08/03/20 Page 11 of 11
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`VII. JURY TRIAL DEMAND
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`Plaintiff demands trial by jury on all issues raised herein.
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`Dated: August 3, 2020.
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`Respectfully submitted,
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` By: __/s/ David F. Sugerman___________________
`David F. Sugerman, OSB No. 86298
`DAVID F. SUGERMAN, ATTORNEY PC
`707 SW Washington, Suite 600
`Portland, OR 97205
`Telephone: (503) 228-6474
`Email: david@sugermanlawoffice.com
`SugermanLawOffice.com
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`Jory D. Lange, Jr., (Pro Hac Vice Pending)
`THE LANGE LAW FIRM, PLLC
`6300 West Loop South, Suite 350
`Houston, TX 77401
`Telephone: (833) 330-3663
`Facsimile: (833) 393-3663
`Email: jory@jorylange.com
`MakeFoodSafe.com
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`ATTORNEYS FOR PLAINTIFF
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