The hepatitis A outbreak that sickened more than 150 people in several western states is now the subject of a class action lawsuit against Costco, which sold the tainted Townsend Farms Organic Antioxidant Blend frozen berries that was later the subject of a USDA recall.
Plaintiffs in the class action, which was filed in California, allege that the frozen berry mix sold by Costco was tainted with hepatitis A, requiring them to seek medical attention and emergency vaccinations.
Hepatitis A affects the liver and is transmitted through the ingestion of contaminated food, water or through direct contact with an infected person. It can lead to mild to severe illness, including abdominal pain, joint pain, fever, fatigue, nausea, vomiting, jaundice and more. The symptoms typically last for less than two months and sufferers usually do not experience lasting liver damage. However, there is a greater risk for liver failure or even death if the victim is over the age of 50 or has existing liver disease.
The class action lawsuit alleges that Costco and Townsend Farms are liable for placing consumers at risk through the production and sale of the frozen berry and pomegranate seed mix, which was recalled in June 2013 after thousands of consumers were allegedly exposed to hepatitis A. The USDA issued a recall of the product after the contamination was allegedly linked to tainted pomegranate seeds purchased by Townsend Farms for use in the frozen berry mix.
In seeking to dismiss the class action, Costco argued that the plaintiffs had not shown they had actually eaten the berry blend and therefore could not claim they were harmed. The court said that while plaintiffs do need to show that a defect caused harm to assert a products liability claim, it was also necessary to consider the harm the plaintiffs may have suffered -- i.e., requiring medical attention and vaccinations.
The court also dismissed Costco’s contention that the claim should be dismissed because a needle stick does not constitute physical harm. The court said it is “not prepared to find, as a matter of law, that unwanted medical care in the form of a needle stick can never constitute a personal injury.”
In allowing the class action to move forward the U.S. District Court judge ruled that the plaintiffs had adequately established a claim for emotional distress based on their fear of contracting hepatitis A from the tainted berry blend.
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