Denis Stearns, State Bar No.

1020675
MARLER CLARK, LLP PS
701 First Avenue, Suite 6600
Seattle, WA 98104
Tel. (206) 346-1888
Fax (206) 346-1898
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

WILLEM GRINTJES, a minor child,

And ELLA GRINTJES, a minor
child, and their parents, ANNE
GRINTJES and NEIL GRINTJES,

Plaintiffs, NO. 06-C-0997

v.

DOLE FOOD COMPANY, INC., PLAINTIFFS’ MOTION

A Delaware corporation; FOR LEAVE TO FILE
NATURAL SELECTION FOODS, AMENDED COMPLAINT
LLC; a California corporation;
and NATURAL SELECTION FOODS
MANUFACTURING, LLC, a
California corporation;

Defendants.

Pursuant to Federal Rules of Civil Procedure 15(a) and 20, the plaintiffs hereby

submit this Motion for Leave to File Amended Complaint. The plaintiffs seek leave to

amend their complaint because the consent of all adverse parties was not available. This

motion is timely for having been filed prior to the April 1, 2007 deadline for the joinder of

MOTION FOR LEAVE TO FILE

AMENDED COMPLAINT - 1
parties. As required by Civil L.R. 15.1, the original of the proposed amended complaint is

attached.

This lawsuit was filed September 22, 2006 against Dole Food Company, Natural

Selections Foods, and Natural Selections Foods Manufacturing. These three defendants had

been previously identified by federal and state public health officials as entities alleged to

have been responsible for manufacture, sale, and distribution of the contaminated packaged

spinach products that caused a multistate E. coli O157:H7 outbreak, and that gave rise the

plaintiffs' claims. Since the filing of the lawsuit, an additional responsible entity has been

identified: Mission Organics, LP/LLC, a corporation organized and existing under the laws

of the State of California. Accordingly, the plaintiffs now seek to amend their complaint to

add Mission Organics as an additional defendant in this action.

The Rules provide that "leave to amend shall be freely given when justice so

requires." FED.R.CIV.P. 15(a). And given that this motion is timely, and discovery is just

beginning, there will be no prejudice to the current defendants. As such, the plaintiffs

respectfully request that the Court grant this motion to amend, and direct clerk to file the

attached First Amended Complaint.

DATED: February 13, 2007.

s/Denis W. Stearns
MARLER CLARK, LLP, PS
Denis W. Stearns, Esq.
State Bar No. 1020675
Attorneys for Plaintiffs

MOTION FOR LEAVE TO FILE

AMENDED COMPLAINT - 2
Denis Stearns, State Bar No. 1020675
MARLER CLARK, LLP PS
701 First Avenue, Suite 6600
Seattle, WA 98104
Tel. (206) 346-1888
Fax (206) 346-1898
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

WILLEM GRINTJES, a minor child,

And ELLA GRINTJES, a
Minor child, and their parents,
ANNE GRINTJES and NEIL
GRINTJES,

Plaintiffs, NO. 06-C-0997

v.

DOLE FOOD COMPANY, INC.,

A Delaware corporation;
NATURAL SELECTION FOODS, AMENDED COMPLAINT
LLC; a California corporation; AND JURY DEMAND
and NATURAL SELECTION FOODS
MANUFACTURING, LLC, a
California corporation, MISSION
ORGANICS, LP/LLC, a California
Corporation;

Defendants.

COME NOW the plaintiffs, WILLEM and ELLA GRINTJES, minor children, and

their parents ANNE and NEIL GRINTJES, by and through their attorneys of record, the

MARLER CLARK law firm, and alleges as follows:

AMENDED COMPLAINT - 1
 I. PARTIES

1.1 The plaintiffs are residents of Brookfield, Wisconsin. The plaintiffs reside

within the jurisdiction of this Court.

1.2 The defendant Dole Food Company, Inc. (“Dole”) is a corporation organized

and existing under the laws of the State of Delaware, with its principal place of business in

the State of California. The defendant Dole is, therefore, a foreign corporation and not a

resident of the State of Wisconsin. Further, the defendant Dole is authorized to do, and in

fact does, business in the State of Wisconsin.

1.3 The defendant Natural Selection Foods, LLC, is a corporation organized and

existing under the laws of the State of California, with its principal place of business in the

State of California. The defendant Natural Selection Foods, LLC, is, therefore, a foreign

corporation and not a resident of the State of Wisconsin. Further, the defendant Natural

Selection Foods, LLC, is authorized to do, and in fact does, business in the State of

Wisconsin.

1.4 The defendant Natural Selection Foods Manufacturing, LLC, is a corporation

organized and existing under the laws of the State of California, with its principal place of

business in the State of California. The defendant Natural Selection Foods Manufacturing,

LLC, is, therefore, a foreign corporation and not a resident of the State of Wisconsin.

Further, the defendant Natural Selection Foods Manufacturing, LLC, 1 is authorized to do,

and in fact does, business in the State of Wisconsin.

1.5 The defendant Mission Organics, LP/LLC (Mission Organics) is a corporation

organizing and existing under the laws of the State of California, with its principal place of

1
Defendants Natural Selection Foods, LLC, and Natural Selection Foods Manufacturing, LLC, will
hereinafter be referred to, collectively, as “Natural Selection.”

AMENDED COMPLAINT - 2
business, on information and belief, in the State of California. The defendant Mission

Organics is therefore a foreign corporation and not a resident of the State of Wisconsin.

Defendant Mission Organics provides its products to regional and national distributors,

including Natural Selection Foods, LLC; and Natural Selection Foods Manufacturing, LLC

with the expectation that those entities will distribute Mission Organics’ spinach to a multi-

state area, including Wisconsin. Mission Organics has thus conducted business in Wisconsin

and purposely reaped the benefits of the laws of Wisconsin.

II. JURISDICTION AND VENUE

2.1 This Court has jurisdiction over the subject matter of this action pursuant to

28 USC § 1332(a) because the matter in controversy exceeds $75,000.00, exclusive of costs,

it is between citizens of different states, and because the defendants each have certain

minimum contacts with the State of Wisconsin such that the maintenance of the suit in this

district does not offend traditional notions of fair play and substantial justice.

2.2 Venue in the United States District Court for the Eastern District of Wisconsin

is proper pursuant to 28 USC § 1391(a)(2) because a substantial part of the events or

omissions giving rise to the plaintiffs’ claims and causes of action occurred in this judicial

district, and because the defendants were subject to personal jurisdiction in this judicial

district at the time of the commencement of the action.

III. GENERAL ALLEGATIONS

3.1 E. coli O157:H7 outbreaks associated with lettuce or spinach, specifically the

“pre-washed” and “ready-to-eat” varieties sold under various brand and trade names, are by

no means a new phenomenon. In October 2003, 13 residents of a California retirement

center were sickened and 2 died after eating E. coli-contaminated “pre-washed” spinach. In

AMENDED COMPLAINT - 3
September 2003, nearly 40 patrons of a California restaurant chain became ill after eating

salads prepared with bagged, “pre-washed” lettuce. In July 2002, over 50 young women

were stricken with E. coli at a dance camp after eating “pre-washed” lettuce, leaving several

hospitalized, and 1 with life-long kidney damage. The Center for Science in the Public

Interest found that of 225 food-poisoning outbreaks from 1990 to 1998, nearly 20 percent (55

outbreaks) were linked to fresh fruits, vegetables or salads.

3.2 Even more recently, though—September 2005—the defendant Dole’s pre-

washed lettuce was the cause of a large E. coli O157:H7 outbreak in Wisconsin, Minnesota,

and Oregon. Health authorities involved in the investigation of last fall’s Dole E. coli

outbreak estimated that as many as 244,866 bags of potentially contaminated lettuce made it

to market. Many people were critically injured.

The Grintjes Children’s Injuries

3.3 Plaintiff Anne Grintjes purchased several packages of Dole brand baby

spinach in late August 2006, from a Pick N Save grocery store, and possibly another store, in

Brookfield, Wisconsin. Plaintiffs Willem and Ella Grintjes consumed the spinach on several

occasions after the purchase.

3.4 Willem Grintjes’ gastrointestinal symptoms began on or about the evening of

Saturday, September 2, 2006. He began to suffer frequent bouts of diarrhea the following

day, September 3, which bouts of diarrhea became bloody on Monday, September 4, 2006.

3.5 Willem Grintjes was first seen by his pediatrician the morning of Tuesday,

September 5, 2006, by which time his gastrointestinal symptoms had become extremely

debilitating. Willem Grintjes was referred to Children’s Hospital of Wisconsin the same day,

where he submitted a stool sample.

AMENDED COMPLAINT - 4
 3.6 Willem Grintjes was seen again at Children’s Hospital on Wednesday,

September 6, 2006, where he received intravenous fluids. He returned home the same day

and continued to fare badly.

3.7 Willem Grintjes was admitted to Children’s Hospital on Friday September 8,

2006, where testing quickly revealed that he had developed hemolytic uremic syndrome

(HUS). Stool culture results returned the same day positive for E. coli O157:H7. Willem

Grintjes would remain hospitalized until September 17, 2006; he underwent multiple blood

transfusions.

3.8 Ella Grintjes remained with her grandmother during Willem’s hospitalization,

and on September 11, 2006 she developed gastrointestinal symptoms consistent with E. coli

O157:H7 infection. Her stool sample returned positive for E. coli O157:H7 on September

18, 2006. She continues to be symptomatic, though her illness has begun to resolve.

IV. CAUSES OF ACTION

Strict Liability—Count I

4.1 At all times relevant hereto, the defendants were manufacturers and sellers of

the adulterated food product that is the subject of the action.

4.2. The adulterated food product that the defendants manufactured, distributed,

and/or sold was, at the time it left the defendants’ control, defective and unreasonably

dangerous for its ordinary and expected use because it contained E. coli O157:H7, a deadly

pathogen.

4.3 The adulterated food product that the defendants manufactured, distributed,

and/or sold was delivered to the plaintiffs without any change in its defective condition. The

adulterated food product that the defendants manufactured, distributed, and/or sold was used

AMENDED COMPLAINT - 5
in the manner expected and intended, and was consumed by plaintiffs Willem and Ella

Grintjes.

4.4 The defendants owed a duty of care to the plaintiffs to design, manufacture,

and/or sell food that was not adulterated, that was fit for human consumption, that was

reasonably safe in construction, and that was free of pathogenic bacteria or other substances

injurious to human health. The defendants breached this duty.

4.5 The defendants owned a duty of care to the plaintiffs to design, prepare, serve,

and sell food that was fit for human consumption, and that was safe to the extent

contemplated by a reasonable consumer. The defendants breached this duty.

4.6 Plaintiffs suffered injury and damages as a direct and proximate result of the

defective and unreasonably dangerous condition of the adulterated food product that the

defendants manufactured, distributed, and/or sold.

Breach of Warranty—Count II

4.7 The defendants are liable to the plaintiffs for breaching express and implied

warranties that they made regarding the adulterated product that the plaintiffs purchased.

These express and implied warranties included the implied warranties of merchantability

and/or fitness for a particular use. Specifically, the defendants expressly warranted, through

their sale of food to the public and by the statements and conduct of their employees and

agents, that the food they prepared and sold was fit for human consumption and not

otherwise adulterated or injurious to health.

4.8 Plaintiffs allege that the E. coli-contaminated food that the defendants sold to

plaintiffs would not pass without exception in the trade and was therefore in breach of the

implied warranty of merchantability.

AMENDED COMPLAINT - 6
 4.9 Plaintiffs allege that the E. coli-contaminated food that the defendants sold to

plaintiffs was not fit for the uses and purposes intended, i.e. human consumption, and that

this product was therefore in breach of the implied warranty of fitness for its intended use.

4.10 As a direct and proximate cause of the defendants’ breach of warranties, as set

forth above, the plaintiffs sustained injuries and damages in an amount to be determined at

trial.

Negligence—Count III

4.11 The defendants owed to the plaintiffs a duty to use reasonable care in the

manufacture, distribution, and sale of their food product, the breach of which duty would

have prevented or eliminated the risk that the defendants’ food products would become

contaminated with E. coli O157:H7 or any other dangerous pathogen. The defendants

breached this duty.

4.12 The defendants had a duty to comply with all statutes, laws, regulations, or

safety codes pertaining to the manufacture, distribution, storage, and sale of their food

product, but failed to do so, and were therefore negligent. The plaintiffs are among the class

of persons designed to be protected by these statutes, laws, regulations, safety codes or

provision pertaining to the manufacture, distribution, storage, and sale of similar food

products.

4.13 The defendants had a duty to properly supervise, train, and monitor their

respective employees, and to ensure their respective employees’ compliance with all

applicable statutes, laws, regulations, or safety codes pertaining to the manufacture,

distribution, storage, and sale of similar food products, but the defendants failed to do so and

were therefore negligent.

AMENDED COMPLAINT - 7
 4.14 The defendants had a duty to use ingredients, supplies, and other constituent

materials that were reasonably safe, wholesome, free of defects, and that otherwise complied

with applicable federal, state, and local laws, ordinances, and regulations, and that were

clean, free from adulteration, and safe for human consumption, but the defendants failed to

do so and were therefore negligent.

4.15 As a direct and proximate result of the defendants’ acts and omissions of

negligence, the plaintiffs sustained injuries and damages in an amount to be determined at

trial.

Negligence Per Se—Count IV

4.16 The defendants had a duty to comply with all applicable state and federal

regulations intended to ensure the purity and safety of their food product, including the

requirements of the Federal Food, Drug and Cosmetics Act (21 U.S.C. § 301 et seq.)

4.17 The defendants failed to comply with the provisions of the health and safety

acts identified above, and, as a result, were negligent per se in their manufacture,

distribution, and sale of food adulterated with E. coli O157:H7, a deadly pathogen.

4.18 As a direct and proximate result of conduct by the defendants that was

negligent per se, the plaintiffs sustained injury and damages in an amount to be determined at

trial.

DAMAGES

4.19 The plaintiffs have suffered general, special, incidental, and consequential

damages as the direct and proximate result of the acts and omissions of the defendants, in an

amount that shall be fully proven at the time of trial. These damages include, but are not

limited to: damages for general pain and suffering; damages for loss of enjoyment of life,

AMENDED COMPLAINT - 8
both past and future; medical and medical related expenses, both past and future; travel and

travel-related expenses, past and future; emotional distress, past and future; pharmaceutical

expenses, past and future; and all other ordinary, incidental, or consequential damages that

would or could be reasonably anticipated to arise under the circumstances.

JURY DEMAND

The plaintiffs hereby demand a jury trial.

PRAYER FOR RELIEF

WHEREFORE, the plaintiffs pray for judgment against the defendants as follows:

A. Ordering compensation for all general, special, incidental, and consequential

damages suffered by the plaintiffs as a result of the defendants’ conduct;

B. Awarding plaintiffs their reasonable attorneys fees and costs, to the fullest

extent allowed by law; and

C. Granting all such additional and/or further relief as this Court deems just and

equitable.

DATED: February 13, 2007.

s/Denis W. Stearns
Denis W. Stearns, State Bar No. 1020675
MARLER CLARK, LLP, PS
6600 Columbia Center
701 5th Avenue
Seattle, WA 98104

Eric B. Ellingson, State Bar No. 1006551

11805 West Hampton Avenue
Milwaukee, WI 53225

Attorneys for Plaintiffs

AMENDED COMPLAINT - 9