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Sickened customer sues E.V. Restaurant: Popular chain has a history of health citations

January 28, 2006
The Tribune (Arizona)
Emily Gersema
Violations included handling food with bare hands, improperly storing food, reusing dirty slicers and choppers, no paper towels at the sink, workers eating in the food service area, dirty aprons, dirty work areas.
Warned on three occasions to fix problems or face penalties.
In the last three years, one of the Valley’s most popular restaurant chains has been cited for more than three dozen major health violations at its four locations, and a lawsuit alleges that undercooked chicken at one franchise sickened a customer so severely he was temporarily paralyzed.


Leighton Dale Kunkle of Danville, Ill., is suing the Chandler Cheesecake Factory, claiming that he was served undercooked Cajun chicken strips there during his Arizona vacation four years ago. The trial is scheduled to begin in March.
Kunkle and his doctors believe bacteria on the chicken caused severe
vomit- ing and diarrhea, and later made him ill with Guillain-Barre syndrome, a rare neurological disorder that, according to federal health data, affects up to 9,600 Americans each year.
A precursor to the strange disorder is food poisoning from the spiral-shaped bacteria, Campylobacter jejuni, found in poultry intestines.
Federal reports say 40 percent of patients with the syndrome were sick from Campylobacter days prior.
Cooking poultry at 180 degrees can prevent illness from Campylobacter. But poultry that isn’t heated to that temperature, even if it looks done, may still contain the germ.
State data shows the risk of infection is often ignored. Arizona reported
795 cases in 2004, making Campylobacter the leading cause of food poisoning in the state.
Symptoms usually start a couple of days after exposure, but Kunkle said he was ill within hours. He went to the emergency room at Chandler Regional Hospital, Maricopa County Superior Court records show. Although doctors tested him for the germ, Kunkle said that it was too late. By then, he had been so ill, he’d already passed the germ.
Even so, doctors diagnosed Kunkle with gastroenteritis — food poisoning, court records show.
Kunkle told the Tribune that he felt ill a few days after returning home.
He thought the “pins and needles” in his feet and legs were signs of a pinched nerve. But the numbness spread throughout his body and finally to his tongue.
He was paralyzed. Emergency room staff said it was Guillain-Barre syndrome.
Kunkle went through physical therapy to recover. He is no longer paralyzed, but struggles with everyday tasks. He can’t lift his 5-year-old and 1-year-old sons. He also has difficulty with stairs. And he’s slammed with nearly $35,000 in medical bills.
“I’m a 74-year-old man to some degree,” the 39-year-old said.
Cheesecake Factory’s attorney argues the lawsuit is based on inconclusive theories about the poultry bacteria and Kunkle’s rare illness. In court documents last summer, attorneys for the company said Kunkle never tested positive for Campylobacter, and there was no proof that his meal at the Chandler restaurant caused his illnesses.
Howard Gordon, spokesman for Cheesecake Factory Inc. in Calabasas, Calif., said this week it’s possible Kunkle got sick from eating food somewhere else. The restaurant didn’t receive any other complaints of illness that day, he said.
“We’re sorry he didn’t feel well,” Gordon said, “but there is no information that we’ve been able to find at all that supports his claim.”
But Kunkle’s lawyers, Brendan Mahoney and Randall Wilkins of Phoenix, argue that science shows the tests for checking infection are unreliable.
Infection may have occurred but results may be negative. They added that most restaurants prepare fresh food each day and throw out the older products, which may have contained the germ — erasing an important clue for investigators to determine what caused the illness.
The attorneys also looked at the restaurant’s track record, examining consumer complaints to Maricopa County Environmental Health S ervices and inspection reports by a private auditor on contract with Cheesecake Factory Inc. They’re using the information to support Kunkle’s case.
Everclean Services, a food safety and sanitation company, was hired by Cheesecake Factory to assess restaurant cleanliness. An Everclean inspector at the Chandler site in February 2003 found rodent droppings in cabinets, according to court records.
Everclean Services officials said that Cheesecake Factory promptly addressed concerns cited in the audits.
A review of Maricopa County health inspection records show that the Cheesecake Factory at 3111 W. Chandler Blvd. in Chandler was cited for 12 major violations by inspectors over three years. It was warned three times since 2003 to address safety concerns or face probation or closure, records show. Before issuing such a warning in September 2004, an inspector noticed workers shelving slicers and choppers that hadn’t been cleaned. Also, in an investigation of an illness complaint in April that year, an inspector spotted workers preparing food with their bare hands.
Further review by the Tribune found similar problems were cited by county inspectors at the Scottsdale, Phoenix and Peoria restaurants since 2003.