IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON

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1 1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON KELLY SHEPARD, individually and ) As guardian ad litem for TC, a minor, ) ) NO. Plaintiffs, ) ) vs. ) ) COMPLAINT FOR DAMAGES COZY VALLEY LLC, a Washington ) Corporation, d/b/a Cozy ) ) Defendant. ) ) COME NOW the plaintiffs by and through their attorneys of record, Marler Clark, L.L.P., P.S., and for cause of action against the defendant above-named complain, allege, and state as follows: I. PARTIES 1.1 At all times material hereto, the plaintiffs were residents of Thurston County, Washington. The minor plaintiff TC is years old. 1. The defendant Cozy Valley LLC is a corporation organized and existing under the laws of the state of Washington and with, on information and belief, its principal place of business located at 0 Churchill Road, Tenino, Thurston County Washington. At all times material, COMPLAINT FOR DAMAGES - 1 ()-

2 1 Cozy Valley was engaged in its ordinary course of business as a licensed Grade A dairy producing raw milk and related food products in Thurston County, Washington. II. JURISDICTION AND VENUE.1 This court is vested with jurisdiction over the defendant, as a corporation doing business within Thurston County, Washington, pursuant to RCW.0.0, RCW.1.0, and RCW The venue of this action is proper in Thurston County, pursuant to RCW.1.0(), because the incident and circumstances giving rise to this cause of action arose in Thurston County. III. FACTS THE OUTBREAK.1 From late-august through early-november, contaminated raw milk produced by Cozy Valley caused at least three children to become infected by a genetically indistinguishable strain of E. coli O:H. The three children, including the minor plaintiff TC, were residents of Pierce and Thurston Counties, Washington.. Based on the discovery of three genetically indistinguishable E. coli O:H infections amongst customers of Cozy Valley, the Washington State Department of Agriculture collected approximately samples from the premises at Cozy Valley, including from its cows and multiple locations in the milking and production areas. At least samples, collected from a mop and from the floor in the milking parlor, tested positive for the same genetically indistinguishable COMPLAINT FOR DAMAGES - ()-

3 1 strain of E. coli O:H that infected the three children, including the minor plaintiff TC, described in the foregoing paragraph of this Complaint.. On or about November,, Cozy Valley recalled its raw milk products with a sell-by date of December,, or earlier. Cozy Valley s raw whole and skim milk and cream had been distributed through at least seven retail outlets in Pierce, Thurston and King counties, including Marlene s Markets in Tacoma and Federal Way, two Olympia Food Co-Op locations, Olympia Local Foods in Tumwater, Mt. Community Co-op in Eatonville, and at defendant Yelm Cooperative. The recalled products were also sold at the Cozy Valley farm store. E. COLI O:H AND HEMOLYTIC UREMIC SYNDROME. Escherichia coli are the name of a common family of bacteria, most members of which do not cause human disease. E. coli O:H is a specific member of this family that can cause bloody diarrhea (hemorrhagic colitis) in humans. After a susceptible individual ingests E. coli O:H, the bacteria attaches to the inside surface of the large intestine and initiates an inflammatory reaction of the intestine. The mean incubation period (time from ingestion to the onset of symptoms) of E. coli O:H is estimated to be two to four days (range, 1- days). Typically, a patient with an acute E. coli O:H infection presents with abdominal cramps, bloody diarrhea, and vomiting. E. coli O:H can produce a wide spectrum of disease from mild, non-bloody diarrhea, to severe bloody diarrhea accompanied by excruciating abdominal pain to life-threatening complications.. About five to ten percent of individuals infected with E. coli O:H develop COMPLAINT FOR DAMAGES - ()-

4 hemolytic uremic syndrome (HUS). HUS was first described in, and today is recognized as the most common cause of kidney failure in children. HUS is believed to develop when the toxin from the bacteria, known as Shiga-like toxin (SLT), enters the circulation through the inflamed bowel wall. Some organs seem more susceptible, perhaps due to the presence of increased 1 numbers of receptors, and include the kidney, pancreas, and brain. By definition, when fully expressed, HUS presents with the triad of hemolytic anemia (destruction of red blood cells), thrombocytopenia (low platelet count), and acute renal failure (loss of the filter function of the kidney). The most important aspect of the treatment of patients with HUS remains excellent supportive care, which includes: close observation in a tertiary-care pediatric facility; meticulous attention to fluid, electrolyte, and metabolic balance; optimal nutrition; and careful blood pressure control. Blood transfusions may be necessary several times during the course of the active stage. Dialysis or interventional therapy, such as plasma exchange (plasmapheresis), may be necessary for patients at risk for a bad outcome. There is no known therapy to halt the progression of HUS. The active stage of the disease usually lasts one to two weeks during which a variety of complications are possible. HUS is a frightening condition that even in the best American centers has a mortality rate of about five percent. Among survivors, about five percent will eventually develop end stage renal disease (ESRD) with a resulting need for dialysis or even transplantation. PAST RAW MILK OUTBREAKS NATIONALLY. Raw, or unpasteurized, milk has long been a source of severe illness in human beings due to contamination by bacteria such as E. coli O:H, Salmonella, Listeria and Campylobacter. COMPLAINT FOR DAMAGES - ()-

5 1. In addition to the Cozy Valley E. coli O:H outbreak that is the subject of this action, from 00 to 0 contaminated raw milk caused at least documented E. coli, Salmonella, Listeria, and Campylobacter outbreaks in the United States.. Since 0, raw milk outbreaks have occurred repeatedly:..1 In 0, Connecticut public health officials identified cases of E. coli O:NM illness amongst state residents sickened by contaminated raw milk produced by the Town Farm Dairy in Simsbury, Connecticut... Also in 0, in Missouri, at least people were infected by E. coli O:H in an outbreak linked to raw goat s milk produced by Autumn Olive Farms and sold at the Herb Depot... Yet another raw milk outbreak occurred in 0. In May and June 0, approximately people were sickened by Campylobacter Jejuni in an outbreak linked to raw cow s milk in and around Del Norte, California. The outbreak was linked to raw milk from Alexandre Ecodairy... In 0, at least 1 Colorado residents were sickened by Campylobacter Jejuni in an outbreak linked to raw milk from the Kinikin Dairy in Montrose County, Colorado... In May and June, raw milk and related products produced by dairyman Mike Hartmann at Hartmann Dairy in Minnesota were the source of at least confirmed E. coli O:H illnesses amongst Minnesota residents... In April, two separate outbreaks of Salmonella and Campylobacter linked to the consumption of raw milk occurred in Utah. The Salmonella outbreak, which sickened COMPLAINT FOR DAMAGES - ()-

6 1 at least people, was caused by raw milk produced and sold by a dairy in central Utah. The Campylobacter outbreak, which sickened at least people, was caused by raw milk from a northern Utah dairy... In November, raw milk products from Organic Pastures dairy in Fresno, California were placed under a quarantine order by the California State Veterinarian. The quarantine order came following a notification from the California Department of Public Health of a cluster of five children who were infected, from August through October, with the same strain of E. coli O:H. These children are residents of Contra Costa, Kings, Sacramento, and San Diego counties. Interviews with the families indicate that the only common reported food exposure is unpasteurized (raw) milk from Organic Pastures dairy. Three of the five children were hospitalized with hemolytic uremic syndrome, a serious condition that may lead to kidney failure. There have been no deaths. Surveys indicate that only about three percent of the public report drinking raw milk in any given week so finding 0% of these children drank raw milk and the absence of other common foods or animal exposures indicates the Organic Pastures raw milk is the likely source of their infection. PAST RAW MILK E. COLI O:H OUTBREAKS IN WASHINGTON STATE. In September 0, two young children were infected by E. coli O:H as a result of consuming raw goat s milk produced and sold by Grace Harbor Farm. Multiple environmental specimens collected at the farm during the course of the outbreak investigation tested positive for the same strain of E. coli O:H that infected the two young children. COMPLAINT FOR DAMAGES - ()-

7 1. In November 0, at least people were sickened in an outbreak linked to the consumption of raw milk from Dee Creek Farm, located near Woodland, Washington. The farm was not licensed to sell raw milk, and during its investigation into the outbreak, the Washington State Department of Agriculture (WSDA) noted several milk processing violations that would have been addressed during the licensing process had Dee Creek applied for the license. Among the violations were the following:..1 No animal health testing documentation for brucellosis and tuberculosis or health permits;.. Beef cattle contact with wild elk;.. No water or waste water system available at milk barn for milking operations or cleaning;.. No hand washing sinks available for cleaning and sanitizing;.. No bacteriological test results available for the farm s well-water system;.. Mud/manure with standing water at the entrance to the milk barn parlor; production;.. Milking bucket in direct contact with unclean surfaces during milk.. Multiple instances providing for the opportunity for cross-contamination; COMPLAINT FOR DAMAGES - ()-

8 1.. No separate milk processing area from domestic kitchen;.. No raw milk warning label provided on containers;.. In addition, sample testing confirmed the presence of E. coli O:H in two milk samples provided by Dee Creek Farm and in five environmental samples taken from Dee Creek Farm milk-barn areas by investigators...1 In the Dee Creek outbreak, five Clark County, Washington, children were hospitalized, with two developing hemolytic uremic syndrome and requiring critical care and life support for kidney failure as a result of their E. coli infections.. In November 0, at least people were infected by raw milk produced and sold at Dungeness Valley Creamery in Sequim, Washington. In its investigation into the outbreak, the Washington State Department of Agriculture did not isolate E. coli O:H bacteria in the dairy s milk, but the WSDA did locate E. coli O:H at the dairy. TC S E. COLI O:H INFECTION AND HUS ILLNESS.1 On multiple occasions during the month before the onset of symptoms related to minor plaintiff TC s E. coli O:H infection, her parents purchased raw milk at Yelm and Olympia Cooperatives that had been produced by the defendant. TC consumed the Cozy Valley raw milk repeatedly during this time. COMPLAINT FOR DAMAGES - ()-

9 1. Onset of symptoms caused by TC s E. coli O:H infection occurred on or about the early morning hours of November,. Symptoms began with abdominal cramps, nausea, diarrhea, and a general feeling of unwellness.. TC s symptoms continued to worsen, including the onset of bloody diarrhea, causing her parents to take TC to her pediatrician the afternoon of November. That day, TC produced a stool sample that ultimately tested positive for the same strain of E. coli O:H that sickened at least other children in the Cozy Valley E. coli O:H outbreak, described above. The strain of E. coli O:H that was isolated from TC s stool sample also was the same as the positive samples taken by the Washington Department of Agriculture during its investigation at Cozy Valley s premises.. On or about November,, TC s parents received a call from the pediatrician who indicated that TC had tested positive for E. coli O:H. The pediatrician advised TC s parents to take her to the emergency department at Mary Bridge Hospital in Tacoma. TC stayed at Mary Bridge overnight, receiving intravenous fluids for hydration, and then discharged TC home.. The next day, TC s symptoms seemed to improve. On Wednesday, November, however, TC developed dark urine, which was a symptom that TC s parents had been advised to watch for. TC s parents rushed her back to her pediatrician s office, who again advised them to return to the hospital. At Providence St. Peters Hospital in Olympia, Washington, blood samples were tested, and the results showed that TC had developed hemolytic uremic syndrome. COMPLAINT FOR DAMAGES - ()-

10 1. TC was transferred to Seattle Children s Hospital the same day. At the emergency room at Children s, TC received intravenous fluids for hydration and gave more blood for testing. She was ultimately admitted for further care and treatment.. TC remained hospitalized at Children s for approximately 1 week. During her hospitalization, she became dangerously anemic, and ultimately required a blood transfusion. After discharge from Children s Hospital, TC continued to be anemic, requiring regular monitoring and blood tests by her pediatrician and pediatric nephrologist. She continues in their care, and the most recent blood test results show that she continues to be anemic.. In addition to the persisting anemia, as a result of her E. coli O:H infection and HUS illness, TC now fears having to use the bathroom. In fact, she refuses to use the bathroom without the assistance and accompaniment of her parents.. Also as a result of her E. coli O:H infection and HUS illness, TC is at increased risk of developing serious kidney and cardiovascular problems at some point in her lifetime. This and all other injuries and damages, economic and otherwise, that plaintiffs suffered as a result of TC s E. coli O:H infection were caused by TC s consumption of contaminated raw milk produced by the defendant Cozy Valley. IV. CAUSE OF ACTION: STRICT LIABILITY.1 Defendant is a product manufacturer within the meaning of the Washington Product Liability Act ( WPLA or the Act ), RCW..0(), and manufactured the food that caused the minor plaintiff s illness. The E. coli O:H-contaminated raw milk consumed by the minor plaintiff is a product within the meaning of the WPLA, RCW..0(). COMPLAINT FOR DAMAGES - ()-

11 1. Under the WPLA, the defendant owed a duty to the plaintiffs to manufacture a product that was reasonably safe in construction, and that did not materially deviate from applicable design specifications or in some material way from otherwise identical units in the defendant s product line.. Under the WPLA, the defendant owed a duty to the plaintiffs to manufacture a product that conformed to its implied warranties, as defined by RCW Ch. A, including, but not limited to, the implied warranty that defendant s products were fit for human consumption.. The raw milk product manufactured and sold by the defendant that caused the minor plaintiff s illness, and all associated legal injuries, was not reasonably safe in construction, and did not conform to defendant s implied warranties, because it was contaminated and adulterated with, among other things, E. coli O:H.. Because the defendant s raw milk product was not reasonably safe in construction, and did not conform to defendant s implied warranties, the defendant is strictly liable to the plaintiffs for the harm proximately caused by its contaminated product. V. NEGLIGENCE CLAIMS.1 The defendant manufactured, distributed and sold a product that was not reasonably safe as designed or manufactured, within the meaning of the WPLA, RCW..00(1).. The defendant was negligent in manufacturing, distributing, and selling a product that was not reasonably safe because adequate warnings or instructions were not provided including, but not limited to, the warning that the produt may contain E. coli O:H, and thus COMPLAINT FOR DAMAGES - ()-

12 1 should not be provided for the purpose of human consumption.. The defendant had actual knowledge that the raw milk product they manufactured and sold for human consumption posed an unreasonable risk of harm to consumers, particularly minor children susceptible to the development of hemolytic uremic syndrome due to the consumption of a food product contaminated by E. coli O:H.. The defendant had a duty to comply with all statutory and regulatory provisions that pertained or applied to the manufacture, distribution, storage, labeling, and sale of its food products including, but not limited to, the Federal Food, Drug, and Cosmetics Act, which bans the manufacture, sale, and distribution of any adulterated food. The defendant breached this duty.. The plaintiffs are among the class of persons intended to be protected by the statutory and regulatory provisions pertaining to defendant s manufacture, distribution, storage, labeling, and sale of its food products.. The defendant owed a duty to the plaintiffs to use reasonable care in the manufacture, distribution, and sale of its products, to prevent contamination with E. coli O:H. The defendant breached this duty.. As a result of the defendant s negligence, the plaintiffs suffered severe and permanent personal injuries, as well as economic loss. VI. DAMAGES.1 The plaintiffs have suffered general, special, incidental, and consequential damages COMPLAINT FOR DAMAGES - 1 ()-

13 1 as a direct and proximate result of the acts and omissions of the defendant, which damages shall be fully proven at the time of trial, including, but not limited to: damages for loss of enjoyment of life, both past and future; medical and medical related expenses, both past and future; travel and travelrelated expenses, past and future; emotional distress, and future emotional distress; pharmaceutical expenses, past and future; wage and other economic damages loss; loss of consortium; and other ordinary, incidental and consequential damages as would be anticipated to arise under the circumstances. VII. PRAYER FOR RELIEF WHEREFORE, plaintiffs pray as follows: (1) That the court award the plaintiffs judgment against defendant in such sums as shall be determined to fully and fairly compensate the plaintiffs for all general, special, incidental and consequential damages incurred, or to be incurred, by the plaintiffs as the direct and proximate result of the acts and omissions of defendant; () That the court award the plaintiffs their respective costs, disbursements and reasonable attorneys fees incurred; () That the court award the plaintiffs the opportunity to amend or modify the provisions of this complaint as necessary or appropriate after additional or further discovery is completed in this matter, and after all appropriate parties have been served; and () That the court award such other and further relief as it deems necessary and proper in the circumstances. COMPLAINT FOR DAMAGES - ()-

14 DATED this day of December,. () - Attorneys for Plaintiffs 1 COMPLAINT FOR DAMAGES - ()-