Bankruptcy judge allows hepatitis lawsuit against Chi-Chi's

PITTSBURGH - Attorneys for a man who needed a liver transplant after he allegedly got hepatitis A from eating at a Chi-Chi's restaurant filed an amended federal lawsuit Wednesday naming the restaurant chain as a defendant.

Attorneys for Richard and Linda Miller of Beaver County were able to file the amended complaint because a bankruptcy judge issued an order earlier Wednesday allowing the claim against Louisville, Ky.-based Chi-Chi's to go forward.

The Millers filed their initial lawsuit in December naming four produce companies alleged to have supplied the restaurant. The new complaint filed in Pittsburgh merely adds Chi-Chi's to the list of defendants.

"We are hopeful that this will allow all the parties at the table to determine their relative responsibility," said Chi-Chi's attorney David Ernst. "We think that's a positive development for Chi-Chi's ... and we think that getting all the parties together, that it will be helpful to have the growers and suppliers take part in those discussions."

Under Pennsylvania law, a restaurant that sells tainted food is automatically liable for any illness that results, though under a 2002 amendment, that liability is shared with others who contribute to a food-borne outbreak or illness.

The Food and Drug Administration determined that tainted green onions from Mexico caused the outbreak in the fall that sickened at least 660 people and killed three people, nearly all of whom ate or worked at the Chi-Chi's at the Beaver Valley Mall, about 25 miles northwest of Pittsburgh. The FDA has yet to pinpoint where along the supply chain the contamination occurred, although federal investigators have said the restaurant couldn't have prevented the outbreak if the onions were tainted before they got to the restaurant.

But the Millers and dozens of other hepatitis victims have been prevented from suing Chi-Chi's because the restaurant chain filed for Chapter 11 protection, citing unrelated cash flow problems, in early October before the source of the outbreak was known. Firms in Chapter 11 can't be sued unless a judge overseeing the business' reorganization approves it.

Seattle-based food liability law firm Marler Clark, which represents the Millers and others, has been pushing for U.S. Bankruptcy Judge Charles G. Case II to lift a stay that would allow all plaintiffs to sue Chi-Chi's, which has at least $51 million in liability insurance, according to court documents.

Case's order Wednesday is a compromise that allows one of the sickest plaintiffs, Miller, to pursue his claim. Miller's lawsuit says he has wracked up $550,000 in medical bills, although the lawsuit seeks an open-ended damage award.

Information gleaned by Miller's lawyers could be used as the basis for future lawsuits against the other defendants and Chi-Chi's, should the bankruptcy court allow them.

Miller claims he ate at the restaurant on Oct. 12, became ill Oct. 28 and by early November was hospitalized. On Nov. 8, Miller received a liver transplant at University of Pittsburgh Medical center and will require lifetime care, the lawsuit says.

In an unrelated development, a Florida company plans to offer free liver testing this weekend to those infected in the nation's largest hepatitis A outbreak.

Miami-based BioCollections Worldwide Inc. is offering to determine whether those who were infected with hepatitis A are still in the acute phase of the disease or are in the recovery phase.

The company also plans to conduct the tests so it can develop better testing methods to detect hepatitis A. The outbreak gives the company the chance to collect a large set of data.

A group of pharmaceutical companies is sponsoring the testing, said BioCollections president and chief executive Sixto Pacheco.