Food Allergy

[Illinois Parent]

What is the name of your state? Illinois

I have an extreme food allergy to MSG. In Nov. of 2003, while shopping at a store, we decided to try their restaurant. I first asked the line cook (knowing he would not know the answer) if they used MSG in the Swedish Meatballs. As he should, he immediately got the head line cook who said he didn't think so, but he would check. After spending about three minutes in the kitchen, he re-appeared, informing me he read the ingredients list and said there was no MSG in the Swedish Meatballs. I asked him how sure he was as I would have a severe allergic reaction, he responded he was positive.

Surprise, surprise, while eating the dish, I began to have a reaction. I initially thought I must be mistaken. Afterall, the guy read the list and he was absolutely certain. I thought I must be having a headache and visual distortion from being tired, perhaps I was coming down with something, or perhaps they pump oxygen into the store like they do in Casinos to keep people shopping longer. In other words, I was initially dismissing my symptoms.

Within 5 minutes, however, my fingers were swelling, as were my face and lips. At this point, I went back to the line cook and asked for the restaurant and store managers. As I was rather loud about it, they appeared almost instantly. I informed them that I was having an allergic reaction to the meal. They went back into the kitchen and reappeared almost immediately, saying the head cook had made a mistake. He only read the ingredients list on the meatballs and not on the gravy, the combination of which make "Swedish Meatballs". MSG was listed as the third ingredient in the gravy (which I had asked for 'extra' on the potatos).

They apologized profusely, asked if I had medication with me or did I need an ambulance. They then wrote down their names and store contact phone numbers, while I gave them my name and phone number. The only medication I had at the time was benadryl, which was in the glove box of my car. We literally RAN to the car, where I took 75mg, then proceeded to the emergency room where I received further treatment. Once it was apparent my airway was not going to be compromised (due to the initial, timely, high dose of benadryl), I was released to follow up with my GP.

The next day, a Sunday, I was still in pretty extreme pain and non-functional due to the swelling in my joints. My physician phoned in a prescription for pain killers and I was to see him in his office first thing Monday morning. On Monday, he also proscribed Prednisone, a steriod the emergency room doctor had declined to prescribe due to a recent history of a bleeding ulcer. My physician decided that due to the amount of swelling that still had not gone down with the use of other anti-imflammatories, the benefit of the steriod outweighed the risks.

Since then, I still have chronic joint pain, in addition to needing to carry an Epi-pen with me at all times. I no longer eat anything that I have not read the ingredients list myself. I am able to eat only in restaurants that I have had correspondance with, assuring me in writing which items do or do not have MSG. I am currently seeing an allergist to determine the level of my sensitivity (extreme) as well as the consequences of another allergic reaction. I am told that the next reaction may well prove fatal without immediate and extreme medical intervention.

Now, finally for the question. I am looking at suing the restaurant, actually the corporation that owns the restaurant. I have the receipt from the meal, the medical records as well as the names and phone numbers of the managers, in their writing. I am looking for help from anyone who may be aware of or have experience with this sort of suit. I do plan on hiring an attorney, but I am looking for referrals also. While the incident happened in Cook County in Illinois, the company is actually headquarted in Sweden, so I guess I would need an attorney with either the experience or the expertise to take on such a case. Also, I have no idea of what kind of damages should be filed for. Admittedly, my out of pocket expense has been minimal, as I have excellent health insurance. I guess my suit would be for current, ongoing and long term implications. That, and the fact that each allergic reaction 'raises the bar' and as a result of this one, I now face life-threatening consequences.

Any help or ideas here would be greatly appreciated.
Thanks

 

[I AM ALWAYS LIABLE]

What is the name of your state? Illinois

I have an extreme food allergy to MSG. In Nov. of 2003, while shopping at a store, we decided to try their restaurant. I first asked the line cook (knowing he would not know the answer) if they used MSG in the Swedish Meatballs. As he should, he immediately got the head line cook who said he didn't think so, but he would check. After spending about three minutes in the kitchen, he re-appeared, informing me he read the ingredients list and said there was no MSG in the Swedish Meatballs. I asked him how sure he was as I would have a severe allergic reaction, he responded he was positive.

Surprise, surprise, while eating the dish, I began to have a reaction. I initially thought I must be mistaken. Afterall, the guy read the list and he was absolutely certain. I thought I must be having a headache and visual distortion from being tired, perhaps I was coming down with something, or perhaps they pump oxygen into the store like they do in Casinos to keep people shopping longer. In other words, I was initially dismissing my symptoms.

Within 5 minutes, however, my fingers were swelling, as were my face and lips. At this point, I went back to the line cook and asked for the restaurant and store managers. As I was rather loud about it, they appeared almost instantly. I informed them that I was having an allergic reaction to the meal. They went back into the kitchen and reappeared almost immediately, saying the head cook had made a mistake. He only read the ingredients list on the meatballs and not on the gravy, the combination of which make "Swedish Meatballs". MSG was listed as the third ingredient in the gravy (which I had asked for 'extra' on the potatos).

They apologized profusely, asked if I had medication with me or did I need an ambulance. They then wrote down their names and store contact phone numbers, while I gave them my name and phone number. The only medication I had at the time was benadryl, which was in the glove box of my car. We literally RAN to the car, where I took 75mg, then proceeded to the emergency room where I received further treatment. Once it was apparent my airway was not going to be compromised (due to the initial, timely, high dose of benadryl), I was released to follow up with my GP.

The next day, a Sunday, I was still in pretty extreme pain and non-functional due to the swelling in my joints. My physician phoned in a prescription for pain killers and I was to see him in his office first thing Monday morning. On Monday, he also proscribed Prednisone, a steriod the emergency room doctor had declined to prescribe due to a recent history of a bleeding ulcer. My physician decided that due to the amount of swelling that still had not gone down with the use of other anti-imflammatories, the benefit of the steriod outweighed the risks.

Since then, I still have chronic joint pain, in addition to needing to carry an Epi-pen with me at all times. I no longer eat anything that I have not read the ingredients list myself. I am able to eat only in restaurants that I have had correspondance with, assuring me in writing which items do or do not have MSG. I am currently seeing an allergist to determine the level of my sensitivity (extreme) as well as the consequences of another allergic reaction. I am told that the next reaction may well prove fatal without immediate and extreme medical intervention.

Now, finally for the question. I am looking at suing the restaurant, actually the corporation that owns the restaurant. I have the receipt from the meal, the medical records as well as the names and phone numbers of the managers, in their writing. I am looking for help from anyone who may be aware of or have experience with this sort of suit. I do plan on hiring an attorney, but I am looking for referrals also. While the incident happened in Cook County in Illinois, the company is actually headquarted in Sweden, so I guess I would need an attorney with either the experience or the expertise to take on such a case. Also, I have no idea of what kind of damages should be filed for. Admittedly, my out of pocket expense has been minimal, as I have excellent health insurance. I guess my suit would be for current, ongoing and long term implications. That, and the fact that each allergic reaction 'raises the bar' and as a result of this one, I now face life-threatening consequences.

Any help or ideas here would be greatly appreciated.
Thanks

My response:

First, yours is one of those rare questions on these Forums that actually brings out a very interesting legal proposition - - "voluntary assumption of a duty" which is not otherwise required by law or other legal fiat.

Like any good, and consciously aware consumer, you asked a direct question of the restaurant employees - - "I have an allergy to MSG. Does your food contain MSG?" They are in a superior position to know this information; however, they are under no duty whatsoever to divulge such information, and you, as a consumer, have the choice of whether to patronize a restaurant if they do not divulge such information.

A restaurant, like any other person or entity, may voluntarily assume a duty that would not otherwise be imposed on it, and thus may voluntarily assume a duty to provide information, advice or warnings to its customers. Most States recognize that "a duty voluntarily assumed must be performed with due care," and, again, most States have approved the principles pertaining to voluntary assumption of a duty as set forth in the Restatement (Second) of Torts § 323 (1965) - - "If a person voluntarily assumes a duty or undertakes to render services to another that should have been seen as necessary for a person's protection, that person may be liable for harm caused because of the negligent performance of his undertaking."

However, as stated above, if the restaurant voluntarily provides such information, assuming a duty to its customer, then the restaurant divulging that information must state to the consumer such information with "due care", and in this instance, the restaurant failed in its voluntary and assumed duty of care.

You have a good tort cause of action for negligence; i.e., the restaurant assumed a duty, they breached that duty, there was causation flowing from that breach (your anaphylaxis), and you suffered damages, both monetary (doctor bills) and general damages (pain and suffering).

Go get 'em!

IAAL

 

[ellencee]

IAAL
I have a question. The poster stated she asked about the meatballs in Swedish meatballs. The meatballs and the gravy are made from separate recipes.

The poster only asked about the meatballs' ingredients, not the gravy's ingredients.

Did the restaurant accept duty to tell her the ingredients of the gravy recipe when she did not ask about the gravy?

Thanks,
EC

 

[I AM ALWAYS LIABLE]

IAAL
I have a question. The poster stated she asked about the meatballs in Swedish meatballs. The meatballs and the gravy are made from two separate recipes.

The poster only asked about the meatball ingredients, not the gravy's ingredients.

Did the restaurant accept duty to tell her the ingredients of the gravy recipe when she did not ask about the gravy?

Thanks,
EC

My response:

Yes, the restaurant accepted the duty because the discussion was concerning "Swedish Meatballs", and those horrible, nasty, pieces of ground things are known to be comprised of meat and gravy. But for the gravy, they wouldn't be Swedish Meatballs, now would they?

IAAL

 

[ellencee]

IAAL
Thanks for the answer even if it one of the answers in life that doesn't seem quite 'right'. I doubt the line cook or the head line cook associated the packet of gravy with the meatballs; afterall, it isn't called 'meatballs with Swedish gravy' and all they did was open the packets and heat the meatballs and the gravy in the microwave and serve it from a steaming, warming tray--OMG, I'm making myself sick thinking about it!

Thanks much!
EC

 

[krispenstpeter]

But for the gravy, they wouldn't be Swedish Meatballs, now would they?

Oh I don't know. I've known a few swedish meatballs in my days and they had two legs but no gravy

 

[Illinois Parent]

Thanks IAAL,
Without being able to quote legal 'chapter and verse', I did think I was on pretty stable legal ground.

Has anyone ever been party to a suit like this? Any ideas of what to expect?
And perhaps most importantly of all, how about referrals/suggestions for a lawyer experienced in this sort of thing? As I said, the restaurant is located in Cook County, I reside in Will County.

And, Ellencee, the answer your question was the one thing about this all that I was most certain. Anyone working in a restaurant, particularly a line cook who's job it is to assemble a dish from it various components, would assume a dish to be composed of all of the parts that make the dish. Swedish meatballs without gravy is no longer "swedish" meatballs. It is then just meatballs. It would be like questioning "Spaghetti Carbonara", and then not checking the bacon, chicken or cream sauce that are by definition of it's name, part of the dish. Finally, if this were not the natural and correct assumption, when I went back to the manager, why did he immediately check BOTH the meatballs and the gravy?

 

[ellencee]

IP
IAAL states the law is on your side. My question had nothing to do with you, really; it had to do with assumed duty.

The manager probably would have checked the drinking water and the iced tea if necessary to determine if the restaurant was liable.

Meatballs are meatballs and gravy is gravy; just like cars are cars and trucks are trucks even though both are automobiles. Your profile states you are a teacher so I'm sure you understand that not everyone would consider them the same even if Swedish meatballs are assumed to have meatballs and gravy.

I researched Swedish meatballs and the Swedish national 'dish' known as Swedish meatballs does not include the gravy in the recipe. Seems we Americanized it into meatballs and gravy.

If I were allergic to MSG, or peanuts, or any other food, I wouldn't eat food I didn't prepare at home. I wouldn't expect the public food industry to protect me--but, that's me and my opinion only applies to me.

EC

 

[djohnson]

"I have an extreme food allergy to MSG. In Nov. of 2003, while shopping at a store, we decided to try their restaurant. I first asked the line cook (knowing he would not know the answer) if they used MSG in the Swedish Meatballs. As he should, he immediately got the head line cook who said he didn't think so, but he would check. After spending about three minutes in the kitchen, he re-appeared, informing me he read the ingredients list and said there was no MSG in the Swedish Meatballs. I asked him how sure he was as I would have a severe allergic reaction, he responded he was positive."


Although I think IAAL is correct and will always defer to his better judgment, I'm just curious if it goes to court if this will be the defense and how strong it would be. He really didn't say he was positive it had no MSG, just that he was positive the ingredients list did not list MSG. If it was in the gravy, there may not have been a complete list, or even a list and the only list was on the meatballs pack. Which would put it back on the OP to take the chance if the list was correct or not. It may seem simple, but seems like a tactic to me that may work.

 

[Illinois Parent]

The Feds require the additive MSG to be listed if it is in a food. If it is not on the ingredient list as either MSG or Monosodium Glutamate, it is not there and it is safe for me to eat. Which means they could not possibly use it as a defense, but, I do wonder what they would try to use? Any obvious answers here that I just don't see? Any speculations? I ask because I honestly cannot imagine what their position could be. My assumption is they will admit culpability yet argue what 'damages' and long term effects can be rightly assigned the them.