New Tainted Smoothie Outbreak Suits Follow Food Chain

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By Steven M. Sellers

Oct. 24 — Litigation over a summer hepatitis A outbreak tied to smoothie drinks in the Mid-Atlantic is growing and following the food supply chain.

The trend is evidenced by three recent suits citing Sysco Corp. and other companies for their alleged roles in supplying imported strawberries that sickened 134 people in nine states.

The suits in Virginia state and federal courts include a would-be class action filed in September. The filings join another class complaint transferred to the Northern District of Georgia Oct. 20 ( 44 PSLR 958, 9/12/16 ).

The new cases all share allegations over the highly contagious virus outbreak against food suppliers.

But they also raise the prospect of thousands of class members who were either sickened or sought out preventative vaccinations once they learned they were exposed.

An individual complaint filed Oct. 20 by Dawn Webster in Virginia Circuit Court, Fairfax County, alleges she contracted the virus after eating at a Tropical Smoothie Cafe in Oakton, Va.

That action joins another suit filed Sept. 12 in the same court by Courtney Key and six other plaintiffs, all of whom allege they developed hepatitis A infections after eating at various Tropical Smoothie outlets in Virginia.

Both of the personal injury complaints cite not only Tropical Smoothie Cafe LLC, but also Houston-based Sysco, its Virginia affiliates and five other importers, distributors and carriers allegedly in the supply chain.

Sysco spokesman Alex Gumbert told Bloomberg BNA Oct. 24 the company “is cooperating with the Virginia Department of Health and the FDA as it relates to their illnesses outbreak investigation linked to frozen strawberries sourced from Egypt.”

“We remain committed to the highest standards of safety and quality for our customers,” Gumbert said in an e-mail.

State, Federal Class Actions in Play

Meanwhile, a class complaint filed Sept. 30 in the Eastern District of Virginia proposes three classes: one for people infected with hepatitis A, another for those who received protective vaccinations and a third for Tropical Smoothie purchasers potentially exposed to the virus.

A similar nationwide class action, originally filed Sept. 2 in Georgia Superior Court, was transferred to the Northern District of Georgia Oct. 20. Two plaintiff classes, one for exposure and another for those infected with the virus, are proposed in that action.

Unlike the Virginia case, however, Atlanta-based Tropical Smoothie Cafe is the only defendant currently named in the Georgia litigation. But it reflects the potential size of class litigation over the outbreak.

It proposes a class that would include “anyone who ate or drank anything at any of TSC’s over 500 franchise locations during a nine-month period” regardless of whether they actually became ill or incurred a monetary loss, Tropical Smoothie said in support of moving the suit to federal court.

That means potential class members numbering in the thousands, qualifying the case for federal treatment under the Class Action Fairness Act, the company said.

CAFA permits the transfer of state cases to federal court as a “mass action” when they involve the claims of 100 or more persons proposed to be tried jointly because of shared factual and legal questions.

To contact the reporter on this story: Steven M. Sellers at sSellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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