HONOLULU (HawaiiNewsNow) - An Oahu resident sickened in the ongoing Hepatitis A outbreak has sued Genki Sushi, just days after the state identified tainted scallops served raw at the sushi chain as the likely source of illness.
The suit also names local distributor Koha Oriental Foods, which supplied the frozen scallops from the Phillippines.
"Ultimately, in a food case, everyone in the chain of distribution bears responsibility for making sure that the product -- even though it's a raw product ... Does not have a human fecal pathogen in it," said food safety lawyer Bill Marler, who filed the suit.
Marler, based in Seattle, has specialized in food illness cases for the last 25 years. He's now representing a dozen Hawaii clients who he says were infected with Hepatitis A after eating at Genki Sushi in May and June.
"What you're seeing is a bad batch of scallops that just unfortunately wound up here," said Marler. "This particular strain of Hepatitis A is not being seen anywhere in the United States except the Hawaiian Islands.
Marler says most of his 12 clients have been hospitalized, including Oahu resident Brant Mauk, the first to over the tainted scallops.
"Within three weeks he started feeling ill. That progressed. He thought it was the flu, but it kept getting worse and worse and worse," Marler said. " When he started to turn yellow, when his eyes started to turn yellow and he got jaundice, he realized something was seriously wrong."
Marler says in food illness cases, everyone in the chain of distribution is responsible for making sure their products are safe.
"Even if you can say we got it from somebody else -- if you serve food to one of your customers, you're responsible for that," he said. "If you want to make the argument that it's somebody else's responsibility -- that's your argument to have with them -- but as it relates to a consumer who comes to your restaurant, your responsibility is between you and the consumer," Marler explained.
Genki Sushi is the only client that purchased the scallops from Koha Foods.
The scallops were supplied to Koha by Washington state-based Sea Port Production Corp.
"They are a large importing seafood company so, of course, they follow the FDA and USDA regulations to ensure the safety of the product coming in," said Dane Nakamura, of Koha Foods.
Sea Port issued the following statement to Hawaii News Now: "We have been told that officials are considering various foods that were consumed in foodservice establishments, including scallops that we shipped before July 2 to the Island of Oahu in Hawai'i. While the cause of the outbreak is not yet clear, we have stopped distributing scallops from our supplier until this is resolved."
Under the law, Marler says, anyone who was infected with Hep A can sue to cover lost wages and medical expenses. Compensation varies depending on the severity of their illness.
"In a liver transplant case, we're talking millions of dollars because not only what that person has gone through but the risk of what can happen in the future. Most cases are substantially less than that, they're tens of thousands or hundreds of thousands of dollars. They're not inexpensive pieces of litigation," Marler said, adding that food distributors and restaurants have insurance to cover just these types of issue. "That's what they pay for insurance for, mistakes like this that occur -- even if it's not their mistake directly."
Marler adds that he strongly advocates requiring food service and healthcare workers get vaccinated for Hepatitis A.
"It's like a forest fire. It eventually burns itself out. But the way to burn that out is people getting vaccines and people using good hand-washing techniques and that will eventually stop this. Now that they've located what the source is now it's about public health and getting people vaccinated," said Marler.
Experts say because the tainted scallops were only just pulled Monday, there's a chance more people will get sick since the incubation period between ingestion and illness can be as long as 50 days.
Marler said that in his experience, most shellfish cases linked to Hepatitis A outbreaks aren't typically caused by an individual with improper sanitation. He believes this outbreak was likely caused by contaminated water the scallops were harvested from in the Philippines.
Additional suits are expected, though Marler says they will all be handled individually given the different symptoms and severity each person has experienced. Marler says supplier Sea Port will also be added to the lawsuit.