What the Firefly outbreak means for the restaurant’s future and the alleged victims’ pocketbooks

Firefly Tapas Kitchen & Bar on Paradise Road sits closed Tuesday, April 30, 2013.

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Firefly's food

When Bill Marler’s phone rings, he usually has a pretty good idea of what the callers want to talk about: food poisoning.

Over the past two decades, Marler has built a reputation securing settlements for victims in contaminated food cases.

Now, the Seattle lawyer is turning his attention to Las Vegas.

Marler has received dozens of calls from people who ate at the now-closed Firefly Tapas Kitchen and Bar on Paradise Road. They say they got sick from salmonella bacteria and want to sue.

As of Tuesday, at least 45 people had hired Marler to represent them in potential lawsuits against the restaurant, where health officials determined at least 86 people got sick after eating there from April 21-24.

“This is one of the biggest food contamination cases in Las Vegas history,” said Craig Murphy, a local attorney helping Marler with the cases.

Marler said his phone began ringing April 30, shortly after the Southern Nevada Health District closed Firefly because of health violations. The calls have come from all over the country: Florida, Massachusetts, California, Indiana.

The victims of the still-unidentified salmonella-ridden food include a group of Marines, a boy in Boston and a local dancer who missed seven shows because he was too sick to perform.

The first official lawsuit filed out of Marler’s office came from Tzahi and Julia Salomon, a local couple who visited the restaurant with a small group of friends to celebrate a brother’s visit from Israel. The Salomons ate at Firefly on April 23 and ordered sangria, mojitos and several plates of tapas.

The next day, Tzahi Salomon was rushed to the emergency room with a high fever, severe heartburn, stomach pain, diarrhea and muscle cramps, according to a complaint filed Friday in Clark County Court. Julia Salomon suffered from nausea, diarrhea and a bad headache.

“Lab tests subsequently confirmed that Tzahi was culture positive for Salmonella,” the complaint states.

Almost a week later, the Salomons had yet to fully recover. They now are seeking $10,000 in damages.

They are not alone.

George Jones had just finished a mission out of Nellis Air Force Base on April 21 when he and three airmen from Arizona decided to refuel at Firefly. They ordered a few pitchers of mojitos and 25 tapas plates to share, including several salads, spare ribs and bacon-wrapped dates.

The next morning, the men felt terrible with cramping and almost continuous trips to the bathroom. Symptoms of salmonellosis include abdominal cramps, diarrhea, fever, nausea and vomiting.

“By Wednesday night, I was bedridden,” Jones said. “I never felt that way in my entire life.”

Eight days in bed and three hospital trips later, the men still couldn’t eat. Each lost an average of 10 pounds. Jones, who has survived two tours in Iraq as an infantry soldier and pilot, lost 18 pounds.

By Monday, the men had toughed through the worst of their physical sickness. But after hearing that the restaurant closed because of health violations, they remained uneasy, Jones said.

That’s why they called Marler. Depending on the source of the salmonella, they plan to sue.

“I’ll do anything to prevent this from happening to other people,” Jones said. “I wouldn’t wish this on my worst enemies.”

Kiesha Green can relate.

The 28-year-old telecommunications expert visited Firefly for an April 24 lunch date with friends. The friends canceled, but Green decided to stay.

Green, who works for Caesars Entertainment, had eaten at Firefly three times a month for years. It was her favorite restaurant.

Not anymore.

On her last visit to Firefly, the Las Vegas local ordered a glass of sangria, pan-seared ahi tuna and mushrooms stuffed with chorizo and chicken. She said the tuna looked a bit brown, but it tasted fine, so she ate it.

“Everything was cool,” Green said. “Until Friday.”

That’s when the vomiting began, Green said.

Green said she rushed to the bathroom 16 times in less than 12 hours. It was so bad, she said, her boss sent her home to see a doctor, who told Green she appeared to have food poisoning.

She never suspected Firefly as the source.

Green said the illness caused her stomach to balloon because her intestines swelled so severely. She said she looks four months pregnant.

“I was really, really, really scared,” she said.

•••

Southern Nevada Health District inspectors began investigating a possible salmonella outbreak April 26, when eight people reported severe stomach sicknesses. Days later, the number jumped to 39. Then, 86.

The actual number of affected people could be much larger. The Health District has no way of tracking salmonella illnesses reported in other states. Firefly is a common destination with tourists as well as locals, and it is likely at least some diners reported getting sick to health departments in their home states.

About 42,000 cases of salmonellosis are reported every year in the United States, according to the Centers for Disease Control. The bacteria typically is linked to improperly prepared foods, such as raw meats, poultry, dairy products, seafood, yeast, coconut, salad dressing and sauces.

Because milder cases often aren’t diagnosed or reported, the actual number of annual infections could be as high as 1.2 million.

“It’ll be interesting to see how the number grows,” Marler said.

The confirmed victims in the Las Vegas case share one commonality: all ate at Firefly between April 21 and April 26, health officials said.

Of the 14 stool samples collected from patrons, seven tested positive for salmonella, one was negative and the results of six samples are pending.

“This outbreak was probably spread through contaminated food,” health officials told sick customers.

It is unclear, however, whether that contaminated food originated at Firefly or came from a supplier.

Health agents inspected Firefly and found 44 health code violations — three more than the minimum needed to close the restaurant.

Inspectors said kitchen employees handled food with bare, unwashed hands and stored ingredients — including meat — at improper temperatures. Major violations included ineffective pest control and broken equipment. Inspectors found a thermometer that read 100 degrees despite being submerged in ice water.

The Health District closed the restaurant due to an “imminent health hazard.”

The last time a salmonella outbreak was linked to a local restaurant was Thanksgiving weekend 1997. That’s when 40 people said they ate at Binion’s Coffee Shop and got sick. Doctors diagnosed 27 of them with the same strain of salmonellosis.

There have been only a handful of cases since. The most recent happened in 2011, when a Clark County woman got sick from eating ground turkey. Her illness was linked to a national outbreak across 26 states in which one person died and 70 more landed in hospitals. The local woman recovered and did not need hospital treatment.

•••

Proving in court that someone got sick from a foodborne illness is a lot like building a house, Marler said.

“It’ll still stand if a few bricks are missing,” he said.

But a solid foundation is needed.

If a company sells a product that hurts someone, the business is liable for damages. But the case has to be legitimate, and there has to be proof.

So what gives a foodborne illness claim legs? Several variables work together.

Heath department investigation: Most regions have a local agency responsible for food contamination investigations. In Las Vegas, it’s the Southern Nevada Health District. Depending on the type of food, illness and number of people reported sick, the scope of the agency’s investigation varies.

It’s difficult to dispute an outbreak, or even an isolated case, that is confirmed by the health department, according to Marler. He said he has never witnessed a defendant avoid liability in a case where the health department identified the defendant’s food as the source of an outbreak.

Previous health department inspections: Evidence in most foodborne illness cases is long gone by the time health investigators arrive. Contaminated food typically is eaten before scientists can identify the illness-causing pathogens.

Salmonella, for example, can take between 12 and 72 hours to cause symptoms.

But there’s a loophole that can help overcome a lack of physical evidence. Lawyers can use a restaurant’s history of failed health inspections or other documentation of recurring problems to build a case with circumstantial evidence.

Medical records: These are essential for victims who plan to sue. Evidence could include an emergency room notation about a suspected food or drink or a lab test confirming an infection from a specific pathogen, such as salmonella.

Lab results: Doctors typically require blood or stool testing to determine the cause of a patient’s stomach illness. Most states require health care providers to report certain pathogens, including salmonella and E. coli. Such reports typically trigger a public warning by the health department and result in an investigation.

A health department lab cultures blood and stool samples to determine the specific strain of bacteria that made a person sick. Scientists can identify unique DNA “fingerprints” in each bug. The more fingerprints a lawyer can match to a specific time frame and restaurant, the stronger his or her case.

Lab results also can help restaurants accused of negligence. If a fingerprint is linked to a specific food, investigators can determine whether the distributor, and not the restaurant, actually was to blame.

Before 1993, health departments didn’t have the technology or resources to culture pathogens. Restaurants often lost court cases simply because several victims had eaten at the same place.

“If it looks like a duck and quacks like a duck, it probably is a duck, right?” Marler said. “The science is much more precise, now.”

If a client lacks proof of having been sickened by food, most lawyers will turn them away. So far in the Firefly case, Marler hasn’t had to do that. All of his clients have receipts and medical records that complement the Health District’s findings, he said.

Regardless, it’s likely most of the cases will settle out of court. Even with strong evidence, the majority of foodborne illness lawsuits never make it to trial, Marler said.

“That’s because you often end up arguing the value of the case,” he said.

Damages in such cases can run the gamut. Someone who paid $1,000 to $2,000 in medical bills and spent a week in bed, for instance, potentially could receive a settlement of between $7,500 and $15,000, Marler said.

Payouts rise the longer a plaintiff is sick. If a person dies from an illness transmitted at a restaurant, compensation can exceed $1 million.

“It’s often directly based on the severity of the illness,” Marler said.

And Marler’s firm isn’t the only one taking calls. Ryan Osterholm, a lawyer at Pritzker-Olsen in Minnesota, has received more than 20 inquiries from potential clients. Most have retained him to build a case against Firefly, he said.

Osterholm said he hopes Firefly owner John Simmons has insurance to cover losses while the restaurant remains closed and help pay for potential settlements or awards. Firefly has two other valley locations, which remain open.

“I’m not in the business of putting companies out of business,” Osterholm said.

Salmonella outbreaks typically don’t cause restaurants to close permanently. Owners often have a chance to make improvements and pass an inspection to reopen.

Simmons declined to comment on the litigation but hinted that Firefly on Paradise will be back up and running soon.

“We continue to work very closely with the Health District to determine the cause,” he said. “We give our sincere best wishes to anyone affected and are working individually with everyone who has contacted us. We are looking forward to seeing the Health District’s final report and implementing their recommendations."

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