Two law firms are teaming up on a class action lawsuit against New Hawaii Sea Restaurant in the Bronx on behalf of the people who had to seek hepatitis A vaccinations after the Department of Health discovered four diners had been infected, likely by a sick restaurant employee.
Attorneys for the Rochester, N.Y., and Seattle law firms say the estimated size of the class could be at least 2,500 people affected over a 10-day period that the DOH specified in its call for vaccinations.
DOH officials announced the hepatitis A scare last week, and urged patrons who consumed food from the restaurant between Sept. 7 and Sept. 19 to get vaccinated immediately. A team from the Medical Reserve Corps administered the vaccines over the weekend.
The class action suit alleges that the restaurant was negligent in allowing the infected employee to work and negligent in not mandating Hepatitis A vaccines for employees.
Bill Marler, the Seattle-based attorney on the case, has been litigating food contamination lawsuits for about 20 years.
The most notable hepatitis A case was in Pennsylvania about a decade ago, he said, when about 10,000 people needed vaccines. It was the largest hepatitis A outbreak ever in the U.S., he said, and cost the state hundreds of thousands of dollars.
Almost 400 people developed hepatitis A despite the vaccinations, and five died.
Most recently, he said, an outbreak was linked to frozen berries at Costco that came from Turkey. About 160 people got sick in 10 states, mostly in the West.
He also mentioned a hepatitis A scare in New York City just six months ago at the high-end Alta Restaurant in the West Village. An employee apparently returned from a vacation in Mexico infected with the disease.
But Marler insists these outbreaks are not an inevitability.
"Outbreaks or scares linked to restaurants could really simply be easily solved by vaccinating people who work in restaurants," he said, citing such a mandate in St. Louis, Mo.
But he said the National Restaurant Association has balked at the initiative on the grounds that there's so much turnover in restaurant employees that there's no economic incentive. If one restaurant subsidizes a vaccine for an employee who leaves to work at another restaurant just two months later, the first restaurant essentially just paid for the second restaurant's vaccine.
But Marler insists that if everyone does it, "it'll all kind of even out over time," and whether the vaccines are paid for by employees, restaurants or government is something to be negotiated.
Marler himself has no economic incentive to push for this mandate: He makes his living suing on behalf of people infected or potentially infected in hepatitis A outbreaks.
But, he says, "The point is the National Restaurant Association and state restaurant association should stop fighting this ... and agree that vaccinating is a good thing."
"Then I won't be able to sue them anymore!" he added.
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