The Chicago Personal Injury Lawyer Blog may not be the first place you go for food-related news every morning, but that’s just because you haven’t been following the fascinating field of Chinese takeout law. Okay, there may not be any such thing, but read the account that Attorney Robert Kreisman gives of a case involving an eggroll, an allergic reaction, and a hospital’s reaction, and see what you think— would you find for the dining plaintiff or the defendant eggroll?
The initial incident: “Eva Holmes White v. Chai H. Leung, d/b/a Choice China Wok, Leung Choice China Wok 10L-2254. In 2004, Eva White ordered the lunch special at Choice China Wok, a Chinese restaurant located at 10341 S. Halsted St. [in Chicago]. Because Ms. White is allergic to shrimp, she asked that the shrimp egg foo young, the shrimp fried rice, and the shrimp egg roll that were included in the special be substituted with chicken… However, immediately after [taking a bite] she noticed that there was in fact shrimp in her egg roll.”
The followup: “White reentered the restaurant and requested a new egg roll. She remained in the restaurant for about thirty minutes before her request was filled. During that time, her throat began to itch and swell. Rather than proceeding immediately to a hospital, White called her mother-in-law, who happened to be a registered nurse, who recommended that White simply purchase some Benadryl.”
Enter another party to the case: “However, the Benadryl did not help, so White drove herself to Roseland Community Hospital’s Emergency Room. Upon arrival, White was given epinephrine, which is often used to treat life-threatening allergic reactions. However, the hospital later was unclear on whether White was given a dose of 1:1,000 or 1:10,000 of epinephrine. While 1:1,000 would have been appropriate, a dosage of 1:10,000 would have been too high and might have been the cause of White’s subsequent cardiac arrest. White’s cardiac arrest triggered a coma, which she remained in for three weeks.”
Curiously, White sued, not the deep pockets hospital that might have screwed up, but the takeout place:
The defense: “The defense pointed out that the plaintiff could not prove that the shrimp egg roll [which had been thrown away] came from its restaurant. [There were others in the same area.] In addition, the defense argued that the plaintiff herself was negligent because she ordered her meal from an employee who spoke very little English given her severe shrimp allergy. In addition, the defense pointed to the fact that there was at least a 50% chance that the alleged inappropriate dosage of epinephrine caused her cardiac arrest, not the shrimp egg roll.”
So what would you decide, based on this summary of the case? In the end, the Cook County jury found for Choice China Wok: “The jury stated that Ms. White had failed to prove that Choice China Wok ever sold her the shrimp egg roll. Because the defendant was not guilty, the jury was free from having to decide whether Ms. White was comparatively negligent for her injuries, and if so, to what degree.” (Which makes it sound as if they might have been skeptical about the wisdom of somebody with a shrimp allergy ordering a shrimp special in the first place; but never had to get to that issue. Also, given the way Chinese restaurants cook everything in the same woks, we’d never consider any dish from there safe if we had a genuinely severe allergy.)
Jury Finds Chicago Chinese Restaurant Not Liable for Allergic Reaction to Egg Roll - White v. Leung [Chicago Personal Injury Lawyer Blog]
