Cause No.

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Samuel Manago § In the District Court

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v. § of Bexar, County
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Pasha Mediterranean Grill, LLC § ___ Judicial District

Plaintiff’s Original Petition

The national food safety law firm of Ron Simon & Associates files this Original Petition

on behalf of Samuel Manago (“Plaintiff”) and respectfully shows the following:

I. Discovery Control Plan

1. Pursuant to Rule 190 of the Texas Rules of Civil Procedure, discovery in this case

is to be conducted under Level 3.

II. Parties

2. Samuel Manago (“Plaintiff”) is a resident of Dalhart, Texas.

3. The Pasha Mediterranean Grill, LLC (“Pasha”) is a Texas entity which may be

served through its registered agent, Daniel Ladere, 9339 Wurzbach Road, San Antonio, Texas

78240.

III. Jurisdiction

4. The Court has jurisdiction over this matter because the damages in controversy are

within the jurisdictional limits of this Court.

IV. Venue

5. Venue is proper in Bexar County, Texas pursuant to Section 15.002 (a)(1) and

(a)(3) of the Texas Civil Practice and Remedies Code because a substantial part of the events or
omissions giving rise to Plaintiff’s claims occurred in Bexar County, Texas, and because Pasha’s

principal place of business and headquarters is located in Bexar County.

V. Facts

About Salmonella

6. Salmonella is an enteric bacterium, which means that it lives in the intestinal tracts

of humans and other warm-blooded animals, including cattle. Salmonella bacteria are usually

transmitted to humans who consume foods contaminated with animal feces. Such foods usually

look and smell normal, meaning that a consumer has no warning of contamination.

7. After ingestion, Salmonella bacteria travel to the lumen of the small intestine,

where the bacteria then penetrates the epithelium, multiply, and enter the blood. This infection

process – also referred to as the incubation period – typically takes 6 to 72 hours for the onset of

symptoms, but can take longer than 10 days. As few as 15-20 cells of Salmonella bacteria can

cause infection.

8. The acute symptoms of Salmonella gastroenteritis (or salmonellosis) include

nausea, vomiting, diarrhea, fever, abdominal cramping and/or stomach pain, dysuria, muscle pain,

fatigue, and dehydration.

9. If medical treatment is provided to an infected person, it typically involves

treatment of the symptoms, such as prescribing anti-nausea or anti-diarrheal medications. Some

physicians prescribe antibiotics. More severe cases of salmonellosis may require intravenous

fluids for treatment of dehydration, usually administered in an emergency room or urgent-care

setting. The elderly, infants, and those with impaired immune systems are more likely to

experience a severe illness or death as a result of ingesting Salmonella bacteria.

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Plaintiff Samuel Manago’s Illness

10. Plaintiff is a resident of San Antonio, Texas and a U.S. Navy veteran.

11. Plaintiff consumed a Beef Shawarma lunch plate at Pasha Mediterranean Grill on

or about August 31, 2018.

12. Plaintiff was unaware that the food was contaminated with Salmonella.

13. By that evening, Plaintiff began experiencing symptoms consistent with Salmonella

poisoning (i.e. one or more of the following: nausea, vomiting, diarrhea, fever, stomach cramps,

muscle aches, abdomen pain, weakness, and dehydration).

14. When these symptoms failed to abate, Plaintiff sought and received medical

treatment at the San Antonio Military Medical Center as a result of his illness. He presented with

a recent history of bloody diarrhea, vomiting, nausea weakness, fever, chills, sweating, and other

symptoms of Salmonella.

15. Plaintiff’s physicians ordered a stool test and determined that his infection was

caused by Salmonella poisoning.

16. Due to the severity of his condition, and for concerns of potential kidney failure,

Plaintiff’s physicians admitted Samuel for treatment and observation. He was hospitalized until

September 6th and remains under medical care at this time.

17. Officials from the local health department subsequently determined that Plaintiff’s

illness was caused by contaminated food served at Pasha Mediterranean Grill.

Salmonella Outbreak Linked to Pasha Mediterranean Grill

18. In late August 2018, local health agencies from Bexar County, the City of San

Antonio, and the Texas Department of Health and Human Services were made aware of a large

number of food poisoning illnesses from patrons of Pasha Mediterranean Grill. As an investigation

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into the outbreak commenced, it immediately became clear that the food consumed from the

restaurant was linked to numerous Salmonella illnesses.

19. Pasha Mediterranean Grill closed for a short period of time to permit investigators

to insect the restaurant and clean the premises.

20. By Friday, September 7, 2018, the San Antonio Metro Health Department reported

over 300 illnesses from patrons who consumed food at the restaurant. At least 12 of the victims,

including Plaintiff Samuel Manago, were hospitalized.

VI. Strict Products Liability

21. At all times, Defendant was in the business of manufacturing, preparing,

distributing, and marketing food products (hereinafter “products”).

22. There was a manufacturing defect in the products when they left Defendant’s

possession and control. The products were defective because they contained Salmonella. The

presence of Salmonella was a condition of the products that rendered them unreasonably

dangerous.

23. There was a marketing defect in the products when they left Defendant’s

possession and control. The products were defective because they contained Salmonella and

Defendant failed to give adequate warnings of the products’ dangers that were known or by the

application of reasonably developed human skill and foresight should have been known.

Defendant also failed to give adequate warnings and instructions to avoid such dangers.

Defendant’s failure to provide such warnings and instructions rendered the products unreasonably

dangerous.

24. Defendant’s conduct was a direct, proximate, and producing cause of Plaintiff’s

injuries and damages set forth below.

25. Defendant is therefore strictly liable for manufacturing, distributing, and marketing
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defective and unreasonably dangerous products and introducing them into the stream of commerce.

VII. Negligence, including Negligence Per Se

26. Defendant owed Plaintiff a duty of ordinary care in the manufacture, preparation,

testing, packaging, marketing, distribution, and selling of the products in question. Further,

Defendant owed Plaintiff the duty of warning or instructing Plaintiff of potentially hazardous or

life-threatening conditions with respect to the food products.

27. Defendant breached its duties in one or more of at least the following ways:

a. negligently manufacturing, distributing, and marketing the products;

b. failing to properly test the products before placing them into the stream of

commerce;

c. failing to prevent human, insect, and/or animal feces from coming into

contact with the products;

d. failing to adequately monitor the safety and sanitary conditions of their

premises;

e. failing to apply its own policies and procedures to ensure the safety and

sanitary conditions of its premises;

f. failing to adopt and/or follow FDA recommended good manufacturing

practices;

g. failing to take reasonable measures to prevent the transmission of

Salmonella bacteria and related filth and adulteration from its premises;

h. failing to properly train and supervise its employees and agents to prevent

the transmission of Salmonella bacteria and related filth and adulteration

from its premises;

i. failing to warn Plaintiff and the general public of the dangerous propensities
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 of the products, particularly that they were contaminated with Salmonella

despite knowing or having reason to know of such dangers; and

j. failing to timely disclose post-sale information concerning the dangers

associated with the products.

28. Furthermore, Defendant had a duty to comply with all applicable health regulations,

including the FDA’s Good Manufacturing Practices Regulations, 21 C.F.R. part 110, subparts (A)-

(G), and all statutory and regulatory provisions that applied to the manufacture, distribution,

storage, and/or sale of the products or their ingredients, including but not limited to, the Federal

Food, Drug, and Cosmetics Act, § 402(a), as codified at 21 U.S.C. § 342(a), which bans the

manufacture, sale and distribution of any “adulterated” food, and the similar provision in the Texas

Health and Safety Code, Title 6, section 431.021, et. seq.

29. Plaintiff is a member of the classes sought to be protected by the regulations and

statutes identified above.

30. Defendant’s conduct was a direct, proximate, and producing cause of Plaintiff’s

injuries and damages set forth below.

31. All dangers associated with the products were reasonably foreseeable and/or

scientifically discoverable by Defendant at the time Defendant placed the products into the stream

of commerce.

32. All dangers associated with the contaminated products were reasonably foreseeable

and/or scientifically discoverable by Defendant at the time Defendant placed the products into the

stream of commerce.

33. Defendant’s conduct was a direct, proximate, and producing cause of Plaintiff’s

injuries and damages set forth below.

34. All dangers associated with the contaminated products were reasonably
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foreseeable and/or scientifically discoverable by Defendant at the time Defendant placed the

products into the stream of commerce.

VIII. Implied Warranty of Fitness for Particular Purpose

35. Defendant is liable to Plaintiff for breach of the implied warranty of fitness for

particular purpose. TEX. BUS. & COM. CODE § 2.315.

36. Plaintiff is a consumer.

37. Defendant is a merchant who manufacture and market the products.

38. Defendant manufactured and marketed products contaminated with Salmonella

bacteria.

39. Plaintiff relied on Defendant’s skill and judgment when representing that the

products at issue were fit for human consumption.

40. Defendant breached the implied warranty of fitness for particular purpose because

Defendant manufactured and sold products that were not fit for human consumption - i.e. they

contained Salmonella bacteria.

41. Defendant did not disclaim this warranty.

42. Defendant’s breach of warranty was a proximate and producing cause of Plaintiff’s

illness and injuries.

43. Plaintiff suffered damages as a result of Defendant’s breach of warranty.

IX. Deceptive Trade Practices Act (“DTPA”)

44. Defendant also violated the Texas Deceptive Trade Practices Act (“DTPA”).

45. Plaintiff is a consumer.

46. Defendant is a merchant.

47. Section 17.50 (a)(2) of the Texas Business and Commerce Code provides that an

individual may pursue a DTPA cause of action for breach of an implied warranty. Although the
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DTPA does not create any warranties, warranties recognized under Texas law are actionable under

the DTPA.

48. Defendant violated the DTPA by breaching the implied warranties of

merchantability and fitness for particular purpose.

49. Defendant did not disclaim either warranty.

50. Defendant’s breach was a proximate and producing cause of Plaintiff’s damages.

51. Plaintiff suffered damages a result of Defendant’s DTPA violations.

X. Damages

52. Defendant’s conduct was a direct, proximate, and producing cause of Plaintiff’s

injuries and damages, including but not limited to damages in the past and future for the following:

pain and suffering, mental anguish, physical impairment, physical disfigurement, loss of

enjoyment of life, medical and pharmaceutical expenses, travel and travel-related expenses,

emotional distress, lost wages, lost earning capacity, loss of consortium, and other general, special,

ordinary, incidental and consequential damages as would be anticipated to arise under the

circumstances.

53. For Plaintiff’s warranty and DTPA claims, Plaintiff seeks damages for past and

future: lost earnings, property damage, medical, pharmaceutical and hospital expenses, mental

anguish, attorneys’ fees, pre-judgment and post-judgment interest, and costs of court.

XI. Gross Negligence and Exemplary Damages

54. Defendant’s conduct as described above constituted acts and/or omissions which,

when viewed objectively from their standpoint at the time of the occurrence involved an extreme

degree of risk, considering the probability and magnitude of the potential harm to others.

Defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with

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conscious indifference to the rights, safety, and welfare of others. Accordingly, Defendant’s

actions constitute gross negligence and Plaintiff seeks an award of exemplary damages.

XII. Treble Damages

55. Defendant knowingly and intentionally breached the implied warranties of

merchantability and fitness for particular purpose and thus violated the DTPA. Plaintiff is

therefore entitled to treble economic damages and mental anguish damages under the DTPA.

XIII. Attorney’s Fees

56. Because Defendant violated the DTPA, Plaintiff is entitled to recover and hereby

seeks attorney’s fees pursuant to § 17.50(c) of the Texas Business and Commerce Code.

XIV. Jury Demand

57. Plaintiff hereby requests a trial by jury and tenders the applicable fee.

XV. Prayer

58. Wherefore, Plaintiff prays that Defendant be cited to appear and answer and that

upon trial of this matter, Plaintiff be awarded the following:

a. Past and future actual damages;

b. Past and future economic damages;
c. Exemplary damages;
d. Treble damages under the DTPA;
e. Attorney’s fees;
f. Court costs;
g. Pre-judgment interest at the highest rate allowed by law;
h. Post-judgment interest at the highest rate allowed by law; and
i. All other relief to which Plaintiff is entitled.

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Respectfully submitted,

RON SIMON & ASSOCIATES

By:
Ron Simon
Bar No. 00788421
Anthony C. Coveny
Bar No. 24059616
820 Gessner Road, Suite 1455
Houston, Texas 77024
(713) 335-4900
(713) 335-4949 (fax)

ATTORNEYS FOR PLAINTIFF

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