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Family sues over food poisoning

CUSTOMERS ACCUSE OWNERS OF VIVA MEXICO OF NEGLIGENCE, SEEK PAYMENT

Enchiladas at their 'favorite restaurant' gave them 'excruciating abdominal cramps,' say the Lapuyades, who have hired a Seattle attorney. Lab tests confirmed shigellosis, caused by bacteria-tainted food.

BY KAREN DE SÁ

Mercury News

Published Tuesday, November 7, 2000, in the San Jose Mercury News

A Redwood City family is filing a lawsuit against the owners of Viva Mexico, a Mexican restaurant shut down after the area's worst food poisoning outbreak in years.

Suzie and Hector Lapuyade charge in documents being filed this morning in San Mateo County Superior Court that an enchilada meal their family ate Oct. 21 led to days of ``excruciating abdominal cramps, severe diarrhea, fever and vomiting'' for two family members.

Lab tests confirmed that Suzie Lapuyade, 40, and her 9-year-old son, Maurice, contracted shigellosis, a gastrointestinal disease that spreads through bacteria-tainted food.

``It was our favorite restaurant,'' Suzie Lapuyade said. ``They were efficient, clean, fast, friendly; the food was excellent. I never ever had any indication that there was anything that would give us a problem.''

At home sick and struggling to learn more about her strange-sounding illness, Lapuyade said she scrolled through Web pages. She found a site that not only provided information about the disease but also connected her with Seattle attorney William Marler, who is representing the family.

Viva Mexico's owners Martin and Isabel Toro did not return calls to their home Monday, and an employee at the restaurant said the couple wasn't available. The Toros' attorney also did not return repeated calls.

The couple is working to reopen the restaurant at 932 Middlefield Road. County health officials closed Viva Mexico as more than 250 diners became sick during the last 10 days of October. Lab tests confirm at least 45 cases of shigellosis, but the Lapuyades are the first to file suit. Constance Williams-Pennel, 54, of Sunnyvale died after eating at the restaurant, but her family has not taken legal action. Last week, Santa Clara County coroners said Williams-Pennel died of shigellosis, but they are conducting DNA tests to confirm that finding.

Suzie Lapuyade said in interviews last week that she was interested in recouping money she lost during a two-week period of illness. Both she and Maurice went to the emergency room within days of eating at Viva Mexico on Oct. 21.

The family now charges Viva Mexico owners with negligent conduct for manufacturing salsa and other dishes unfit for human consumption. Cilantro in the salsa served at the restaurant is under investigation as one of the possible causes of the food poisoning outbreak.

But in the absence of conclusive evidence, the suit also charges the Toros with negligent business practices for poor selection of food suppliers and failure to adequately supervise employees who may have transmitted the disease by failing to wash their hands with soap.

"As a result of the exposure to shigella,'' court records say, "the plaintiffs Maurice Lapuyade and Suzie Lapuyade suffered severe and permanent injury, and now face an increased risk of future injury.''

Attorneys for the Lapuyades said the family wants to be reimbursed for lost wages and costs associated with their illnesses, including hospital co-pays, medications and the cost to steam-clean their carpets and furniture. Hector Lapuyade, the boy's father, also seeks compensation for loss of ``spousal consortium'' during his wife's illness. No dollar figure has been set.

"They are certainly entitled to a decision about what the value of what they went through for a week is worth,'' attorney Marler said. Marler's firm has represented 1,500 food poisoning victims in the past seven years, including those affected by the 1998 E. coli contamination of Odwalla juice. "Twelve jurors in San Mateo County will help us all make a decision.''

More on this outbreak: Viva Mexico Shigella Outbreak

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