Corky & Lenny's is a venerable Jewish delicatessen that has been an institution on Cleveland's East Side for more than 33 years. It's such a fixture in the community that even a salmonella outbreak that produced 23 confirmed cases and caused dozens of others to become sick scarcely made a dent in its considerable good will. When the health department closed the place down, live television remotes showed restaurant workers scrubbing and sanitizing every surface of the restaurant while managers threw out questionable food. There were even interviews with unbelieving customers who, after reading the "closed" sign on the door, swore they would be back as soon as Corky & Lenny's reopened.
They weren't kidding. When the place did reopen after getting the OK from the Cuyahoga County Department of Health, the Cleveland Plain Dealer played it up big: a lengthy story plus a five-columns-wide picture of happy customers wolfing down food at their usual tables. The loyal clientele had indeed flocked back on the very first day and kept on coming. Co-owners Kenny Kurland and Earl Stein told reporters that business interruption insurance would help make up for revenue lost during the week his restaurant was closed. Perhaps never before has a restaurant been gotten such benign treatment during and after a foodborne illness episode as did Corky & Lenny's.
That was on a Sunday. On the following Tuesday, the lawyers began to weigh in. Not your 1-800 number local small fry personal injury attorneys, but big-time firms with broad experience in launching and winning foodborne injury cases.
Leading the charge was a suit filed on behalf of Corky & Lenny's patron Jeanne Silver, who spent four days in the hospital with salmonella. Representing her is Marler Clark, the Seattle law firm recognized as the national leader in foodborne illness litigation. (Marler was the plaintiff's attorney in the landmark Jack-In-The-Box food safety case; Clark handled the defense. Now they're partners.) If there's one firm you don't want lining up against you in a foodborne illness case, it's this one.
Bill Marler framed his argument this way. "Corky & Lenny's had a responsibility to its customers to serve food that was safe for human consumption," he said. "Food contaminated with salmonella certainly does not fit the definition of 'safe.'
"When a restaurant sells food that makes customers sick, they should expect to be held legally responsible," he continued. "We have been contacted by several other people who became ill as part of this outbreak, and intend to bring more claims on their behalf."
Next came the big ad in the Plain Dealer. It seemed out of character for Marler Clark. The firm is a big advocate of food safety and devotes time and money to promoting food safety, sometimes donating large portions of its fees to this cause. But Marler Clark isn't doing the heavy lifting on the Cleveland end of this case. They've linked up with Pennsylvania personal injury firm Edgar Snyder & Associates, the firm who placed the Cleveland Plain Dealer ad cited above. Edgar Snyder, several of whose attorneys are licensed to practice in Ohio, has experience in handling salmonella and similar claims.
The ad did not play well in Cleveland. Corky and Lenny's owner didn't like it. "It's a shame that an out-of-state attorney is trolling for our clients, " said Kurland. Patrons were offended, as well. "It's disgusting to see this," said customer John Frost. "It's like ambulance chasers." Even Silver didn't like it. "I think it's tacky," she told the Plain Dealer. "There's no excuse for that."
It will take time for this case to work its way through the courts, and we don't know how it will end. Kurland says his liability insurance will cover any judgments or settlements. But maybe you can learn a lesson from his experience. The next time you're renewing your restaurant's insurance, read the fine print on your business interruption policy closely. And if your agent suggests that you increase the amount of your liability coverage, think it over before you say "no."
