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$1 Million Settlement in Food Poisoning Suit

April 01, 1993|DANIEL P. PUZO | TIMES STAFF WRITER

A Northern California man who contracted a severe case of food poisoning after being served contaminated raw oysters received a $1 million out-of-court settlement from five companies involved in the transport and sale of the Louisiana shellfish.

The case has long-range, troubling implications for the food industry, especially in light of the recent outbreak of E. coli 0157:H7 linked to ground beef that caused 500 illnesses and two deaths on the West Coast.

According to his lawyer, Genese Dopson Smith, the settlement received by William Kilpatrick, of Redding, Calif., is the largest award ever in a food product liability case.

On June 28, 1988, Kilpatrick ordered raw oysters from room service at the Holiday Inn at San Francisco's Fisherman's Wharf. Within 48 hours, he exhibited the classic symptoms of food poisoning: nausea, vomiting and diarrhea. However, his case became more severe as an infection appeared on his legs that eventually destroyed skin, muscle tissue and tendon. Sixty days of hospitalization were required and Kilpatrick was diagnosed with a Vibrio cholera infection.

While hospitalized, Kilpatrick also developed a bone marrow infection and numerous fractures. During the course of his recovery, Kilpatrick became severely depressed over his disfigurement and twice attempted suicide, according to the settlement report released by Dopson Smith. Today, after about $80,000 in medical costs, he walks only with the aid of a cane.

"We proved that V. cholera was a foreign bacteria to oysters and, therefore, we could proceed against the defendants on product liability and breach of warranty," said Dopson Smith. "This is significant. One of the major things we want, in addition to compensation for Mr. Kilpatrick's injuries, is some kind of change in the seafood industry."

The defendants are Holiday Inns Inc., United Shell Fish Co., Fisherman's Wharf Seafoods Inc., Pearson Seafood and Pride Transport Inc. A sixth company, Florida-based Severt Trucking, did not contest the lawsuit and was assessed a judgment of $378,000. Dopson Smith plans to pursue collection of the additional sum in Florida courts.

Charles D. Jenkins, a San Francisco attorney who represented Holiday Inns Inc., disagreed with Dopson Smith's interpretation of the settlement. He said that the Kilpatrick case is unique because of a state Court of Appeals ruling that all bacteria--whether naturally occurring or introduced into the oysters by handlers--is to be considered "foreign" in this particular incident. Whether such a standard will be applied to future food poisoning outbreaks is unknown.

"The oysters in the Kilpatrick case were perfectly good oysters," Jenkins said. "The bacteria that caused the illness was a common, natural bacteria that literally belonged in the oysters. It was his own system, his liver, that failed to protect him from garden variety bacteria."

Jenkins said the Holiday Inn Fisherman's Wharf served thousands of oysters from the same source during the summer of 1988 but Kilpatrick was the only one to report illness.

The case was one of several that prompted the California Department of Health Services to require that all retail outlets selling Gulf of Mexico oysters post warning signs alerting high-risk individuals of the potential presence of Vibrio vulnificus , a strain related to V. cholera , in the shellfish . Vibrio is believed to thrive in warmer waters such as the Gulf of Mexico.

Among those believed to be especially susceptible to the Vibrio bacteria are people with compromised immune systems such as those suffering from liver damage, AIDS or cancer. Kilpatrick, however, had never been diagnosed with any of these illnesses. At the time of the infection, he was drinking heavily and is now a recovering alcoholic. Yet the state's current warning sign does not alert alcoholics, nor heavy drinkers, to the potential danger of consuming raw or undercooked oysters. Further, there is no universal definition of what constitutes heavy drinking, which some say is anything more than two glasses of wine or beer per day.

The size of the Kilpatrick settlement will create insurance difficulties for companies that sell and transport highly perishable food commodities such as raw oysters, Dopson Smith believes. Some insurers are unlikely to provide liability coverage unless substantial improvements are made in the seafood distribution system's sanitation practices, she said.

The problems that exist in the industry came to light during the course of the Kilpatrick litigation. For instance, David Clem, a former U.S. Food and Drug Administration official and one-time member of the Interstate Shellfish Sanitation Commission, testified that "it was common and well known in the (seafood) industry that independent trucking outfits (transporting shellfish) turned off the refrigeration during interstate commerce to save on gas." V. cholera and other bacteria multiply rapidly when raw foods are not kept properly refrigerated.

The settlement is unusual because the facts and figures in the case are not sealed to the public. Dopson Smith said that Kilpatrick insisted on having the case details open because he wants to speak out on the issue of seafood safety in the future based on his experience with oysters and V. cholera.

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