best thing that could happen is for this lawsuit to go before a jury

[Guest guest]

Murrieta family suing in E. coli case

Lawsuit alleges both dairy and store are liable for illness that hit local boy

A Murrieta couple says it was raw milk tainted with a strain of E. coli that nearly killed their son.The owner of Organic Pastures Dairy in Fresno, where the raw milk came from, and the Sprouts store in Temecula, where the milk was purchased, each say there is no proof they are at fault.It will now likely be up to a jury to decide.Tony and his wife, McGonigle-, have filed a civil lawsuit in Fresno County against both companies on behalf of their son, who was hospitalized for two months in 2006."was one of the lucky ones," because he survived, his mother said in the living room of the family home recently."We were watching our son drown in toxins," Tom said of the many days they spent at the hospital with Chris. "We had no idea what we were in for." said there were times they didn't know if their son was going to make it.Then things finally started to look better.For the first time in two months, spoke. His first words, through a hoarse voice, were "Game Boy," said."That's when I knew he was coming back," she said. who was 7 when he fell ill, is now 9 years old and doing well. He is in school, and says recess is his favorite time of the day. It is then that he gets to play "wall ball" with friends."He's back to, really, a regular life," Tom said. "Every sign seems to be he is back to normal. The last thing we could have done would have been to let this affect his regular life."When asked some of the things he likes to do ---- besides playing on his Game Boy ---- quickly answers, "I like to read."That answer seemed to surprise his mom.Looking at now, it is difficult to believe this is the same child who ---- in a video his father took at the hospital ---- was severely swollen from fluid build-up and gasping for breath. Tom said he took the video so could someday see what he survived."I'm feeling fine," the smiling boy said when asked how he's doing now.But that certainly wasn't always the case, and his parents say they still have what they call "a big black cloud of unknowns" over them as they wait to see how does as he gets older."probably lost 10 percent of the filters in his kidneys," Tom said. "The consequences of that won't really show until he hits puberty. So we are in a long-term 'wait and see.'"According to the lawsuit filed Feb. 6, developed hemolytic uremic syndrome, a common cause of kidney failure, due to E. coli infection.Hospitalized from Sept. 7 to Nov. 2, 2006, "suffered life-threatening injuries that have left him permanently injured," the suit states.His kidneys failed, requiring weeks of dialysis, and he needed multiple blood transfusions, according to the lawsuit.Because of impending heart failure, was placed on a ventilator for five days, was taken off it briefly, then put back on for several more days, the document states.The s have incurred more than $450,000 in medical bills, according to the suit.The suit alleges three causes of action: strict product liability, implied warranty and negligence. It does not specify any monetary amount the family is seeking.The s say the lawsuit isn't all about the money. They're hoping that others can learn from what they've gone through."Hopefully, this brings some exposure to the E. coli problem. People talk about a pathogen like this almost like it is a cold," said."We aren't trying to tell people not to drink raw milk," her husband said. "Just to be cautious."As they were before became ill, the s continue to advocate healthy eating, saying that about 98 percent of what the family consumes is organic."That's still an important part of our lifestyle," said, but she added that raw milk is not a part of their diet now."Our son was damaged," Tony said. "We live in a society where, if you sell a product that causes that, you are responsible for that damage."The s bought the raw milk drank in September 2006, from Sprouts on Winchester Road in Temecula.When contacted recently, Sprouts store owner said, "There is no information I know of that any E. coli in any raw milk was sold at our store, or anywhere else for that matter."Mark McAfee, owner of Organic Pastures Dairy in Fresno, says there is no proof that his company is at fault, as also alleged in the lawsuit."When a person sues for a food-related illness, they must be able to show a connection between a product and the person," McAfee said. "There isn't a connection here."McAfee said the pathogen was not found in any of the manure tests of his cows or in any tests of packaged dairy products from his business."Because there isn't any connection, we feel confident we have a very strong defense," he said.The Seattle-based attorney representing the s in their lawsuit has a different opinion."Under California law, the whole distribution chain is strictly liable," Marler said of both the dairy and the store. "We don't have to prove the store did anything wrong or was negligent, just that it was in the product."Selling unpasteurized milk is a risk stores shouldn't be willing to take," he said, adding that children and elderly are at "extreme risk" from pathogens that might be in such a product."The message here is, whether it is raw or pasteurized milk, you have to be willing to take the responsibility of making sure your product is safe for your consumers," Marler said.Marler says he has handled thousands of E. coli cases over the last 15 years, including the infamous Jack in the Box meat case.He said jury settlements are typically in the millions of dollars in E. coli lawsuits, citing one Jack in the Box settlement in which $15.6 million was awarded in the case of just one child.Most civil cases do resolve before testimony starts in front of a jury, Marler said. "But they certainly don't have to."Marler estimates it will be well into 2009 before a jury is selected in the case.Until then, the s say they continue to hope others won't endure what they have."We live in a society where people are not that concerned with getting a pathogen and they need to be," Tom said.He calls some proponents of raw milk "zealots" in the ways they push the product. says raw milk is promoted because of probiotics, which are known to be healthy."But you can live without milk, period," she said, adding that there are other ways to consume probiotics."Giving raw milk to your child, there is a chance you could kill your child," said."Why would someone want to go out and put their child at such risk?" she asked.Contact staff writer Hall at , Ext. 2628, or jhall@....