One of the plaintiffs, Richard Miller, became ill about two weeks after he ate at a Chi-Chi's restaurant at the Beaver Valley Mall. Miller has since required a liver transplant and two weeks ago sued four food companies that had been identified by Chi-Chi's as possibly involved in supplying the green onions.
Before it knew about the outbreak, Louisville, Ky.-based Chi-Chi's filed for Chapter 11 bankruptcy protection, citing cash flow problems. Corporations under Chapter 11 can't be sued without a judge's approval, so their assets are protected for the repayment of creditors.
Miller's Seattle-based attorneys want the bankruptcy stay lifted so $51 million in liability insurance that Chi-Chi's has can be accessed by those who file suit. The insurance coverage of the suppliers Miller has already sued is not known, according to Miller's attorneys.
The attorneys argue that the law allows the stay to be lifted because the lawsuits won't primarily target Chi-Chi's assets but its insurance, which wouldn't be available to pay Chi-Chi's other creditors anyway.
"We are asking the court to lift the stay so these defendants can be in one courtroom," said William Marler, one of the attorneys. "We believe that this will allow a jury to determine how this tragedy occurred and how we can prevent it from ever happening again."
Some 650 people have gotten hepatitis A in the outbreak, including three who died. All but 10 of those ate or worked at the restaurant. The others caught the liver-attacking virus secondhand, the Pennsylvania Health Department has said.
A Chi-Chi's spokesman and a company attorney didn't immediately return calls Friday morning.
"We not only need to find out who is responsible for the injuries of over 650 people and the deaths of three, but these people need to be compensated for their injuries and loss," Marler said. "Having the entire chain of distribution of these green onions in one suit will ensure fair compensation for all victims."
Chi-Chi's already has bankruptcy court permission to pay up to $500,000 to victims for out-of-pocket medical expenses and lost wages. Nearly all those claims have been for $3,000 or less, the restaurant has said — but Marler is seeking awards for pain and suffering.
In Pennsylvania, restaurants that serve tainted food can be held liable. But under an amendment to that law last year, that liability is shared with others who contribute to a food-borne outbreak or illness.
Chi-Chi's officials noted that state and federal health officials have said the restaurant had no way of knowing the onions were tainted and that there's no industry-accepted way to clean hepatitis A-tainted green onions even if the restaurant had known of the contamination.
In an unrelated development, Chi-Chi's officials said Thursday that an effort to evict them from the Pennsylvania mall where the outbreak occurred has failed. The chain voluntarily closed the restaurant, about 25 miles northwest of Pittsburgh, Nov. 2 and said it will remain shuttered until Jan. 2.
The eviction attempt was to be withdrawn because a business under Chapter 11 protection can't be kicked out, Valerie Bent, a Chi-Chi's spokeswoman, told the Beaver County Times on Thursday.