The lawsuit names Odwalla Inc. and Starbucks Inc. - where the drink was purchased - as defendants. Neither company would comment on the lawsuit.
As of yesterday, 49 cases of the bacterial infection in three states and Canada had been linked to Odwalla - 21 in Washington, 13 in California, five in Colorado and 10 in British Columbia.
The lawsuit, filed by Bogle & Gates attorney Kelly Corr, seeks personal injury and punitive damages for U-seoung "Noel" Kim. The suit claims Odwalla should have known that using unpasteurized apple juice posed a risk for E. coli contamination of its products.
Odwalla voluntarily recalled all its juices containing apple juice last week, immediately after being notified of the potential link to the outbreak. The company, based in Half Moon Bay, Calif., yesterday announced that it had reformulated three mixed drinks without using apple juice and has reintroduced them on the market: Strawberry "C" Monster, Serious Ginseng and Mo'Beta.
Yesterday's lawsuit upset another Seattle attorney, Bill Marler, who won millions for people injured during a 1993 outbreak from Jack in the Box hamburgers.
"I think it's premature," Marler said. He represents the family of 2 1/2-year-old Michael Beverely, who was discharged yesterday from Children's Hospital and Medical Center.
Marler said Odwalla has demonstrated a willingness to work with families and others to establish a non-litigation process to compensate people for illnesses and other losses caused by consuming contaminated fruit juice.
"We're trying to take a more conciliatory, partnership approach to this," Marler said.
Corr, a former colleague of Marler, responded that "reasonable minds will differ on how best to approach this."
Odwalla Chairman Greg Steltenpohl came to Seattle earlier this week to meet with some of the victims' families and promised to cover all medical expenses of those who were made sick by contaminated juice.
State and federal health officials continue to investigate the outbreak of E. coli O157:H7 linked primarily to consumption of unpasteurized Odwalla brand apple juice. The original source of the contamination has not been determined.
Most of those who fell ill have been children.
A dozen people suffered kidney failure as a result of a disorder called hemolytic uremic syndrome commonly associated with severe infection by E. coli O157:H7.
Corr said that his client, Noel Kim, obtained and drank Odwalla apple juice on Oct. 17 while on vacation with his mother, Hye-reoung Kim, in the Los Angeles area.
One twist to the lawsuit, Corr said, is that Washington state typically does not allow claims for punitive damages in these kinds of cases. But California does, he said, and the complaint is based on where the injury took place.
Bruce Clark is an attorney who represents Jack in the Box's parent company, Foodmaker Inc., on outstanding claims from the 1993 outbreak. Clark said the evidence for punitive damages in that case was even more substantial, but no such damages were awarded by the California courts.
"None of those claims went anywhere," he said.
Clark said the fact that Kim didn't suffer the most severe form of illness from the infection, HUS, also makes the claim weak.
Corr strongly disagreed.
"This kid had to have surgery," he said. Punitive damages are warranted because "it's clear this could have been prevented."
Corr cited several articles published in medical literature and food industry journals on the link between unpasteurized apple cider and E. coli O157:H7 outbreaks. Odwalla and its distributors, he said, should have known that using unpasteurized apple juice posed this risk.
Dr. John Kobayashi, the lead state epidemiologist on this outbreak and the 1993 outbreak, is not sure it is that clear. Certainly there have been reports linking E. coli O157 to raw cider, Kobayashi said.
In fact, he said, there's been another such outbreak recently in Connecticut that is again linked to fresh-pressed apple juice. But all those cases involved small-scale operations typically using apples that were picked up off the ground and insufficiently cleaned.
"The outbreak here (linked to Odwalla) is the first instance where a widely distributed, commercial product has been involved," Kobayashi said.
It's not known yet how Odwalla's apple juice became contaminated, and so it's also not clear yet what could have been done to prevent it, he said.