1 caURT hat Of Counset FILED (OGAWA, LAU, NAKAMURA & JEW eae Attorneys-at-Law, A Law Corporation SEP 21 PH IO) MICHAEL F. O'CONNOR 1098-0, 707 Richards Street, Suite 600 J.xuo Honolulu, Hawaii 96813 eRe Telephone: 533-9999 Attomey for Plaintif JOHN DRISCOLL IN THE CIRCUIT COURT OF THE FIRST CIRCUIT ‘STATE OF HAWAII 16-1-1779-09 JOHN DRISCOLL, an inva, Plait, COMPLAINT; DEMAND FOR JURY TRIAL; SUMMONS ) ) ) ) ) ‘GENK! SUSHI USA, INC.,a Hawai ) ‘corporation; HNK, INC., dba Koha Foods, a) Hawaii corporation; SEA PORT ) PRODUCTS CORPORATON, a California) ‘corporation; JOHN DOES 1-10; andDOE —_) ENTITIES 1-10, ) ) ) Deterdants COMPLAINT ‘COMES NOW, Paitif, JOHN DRISCOLL for a Complaint against Defendants GENK! SUSHI USA, INC., a Hawall corporation, HNK, INC., dba Koha Foods, a Hawaii corporation, SEA PORT PRODUCTS CORPORATION, & California corporation, JOHN DOES 1-10, and DOE ENTITIES 1-10, 28 folows |. THE PARTIES 1. Plaintiff JOHN DRISCOLL (hereinater “DRISCOLL’) is and was a ctizen and resident of Hauula, County 2 Honolulu, State of Hawa 1 toby ctype, and ‘et oy te cle en es ‘Cea a PCat2 Defendant GENKI SUSHI USA, ING, is @ Hawaii corporation which does business in the State of Hawai 3. Defendant FNK, Ine, dba Koha Foods, is Hawai corporation which does business in the State of Hawai 4. Defendant SEA PORT PRODUCTS CORPORATION, isa California corporation which does business inthe State of awa 5. DRISCOLL has sued JOHN DOES 1-10 and DOE ENTITIES 1-10 as those persons or entities who we' involved in the production, importation, marketing, distribution or ‘sale of scallops infected wit the Hepatitis A virus (HAV) that were served to customers at Genki Sushi restaurants in Apri, May, June, July oF August 2016. ORISCOLL does not know the names ofthese persons or entities afer dgent search and seeks leave to name such persons ‘or enti as defendants ata later date I, JURISDICTION AND VENUE 6. By this refewnce, DRISCOLL incorporates paragraphs 1 through 5 of this ‘Complaint asf ach was se forth herein its entrety 7. Venue is prose in this Court pursuant to HRS § 603.96 because the negligence {rom which DRISCOLL cains for reli! arose occured in i circuit 8. This Court has personal jurisdiction overall Defendants pursuant to HRS § 634- 35, including, but not ite to, subsections 1) and (2), because DRISCOLL's causes of action ‘against the Defendants arises from their transactions of business wihin tis State andlor their commission of tortious acts within this State. 8. Each Defencant has substantia, systematic, and continuous contact with this State such that exercise of personal jursticion over them is appropiate 10. Each Defendant has purposefully availed itself to the privilege of conducting business within this State avd has the requisite minimum contacts with tis State such that themaintenance ofthis suit dces not offend traditional notions of far play and substantial justice ‘and that the Defendants shoud reasonably anticipate being hale into Court here. IN, STATEMENT OF FACTS. 11, By this refeence, DRISCOLL incorporates paragraphs 1 through 10 of this Complaint as if each was set forth here in is entrey. About Hepalitis A Virus 12. Hopatts A (ormery known as infectious hepatitis) ie an acute infectious disease of the er caused by the hepatitis virus (HAV), a virus usually spread by the fecal-oal rout, vwth infections often being raced to conditions of poor sanitation. In addon, the HAV vis is highly resistant, and is resstant to detergent, aid (pH 1), solvents (0, ether, chiorofoem, crying, and temperatures upto 60 degrees Coleus. it can survive for months in fresh and salt water as wel asia frozen oducts 12, After ingeaton of the vitus, HAV enters the bloodsteam through the intestine, ‘The blood carries the virus fo the virus’ target, the ver. Once the virus reaches the Iver, it ‘mutipes within hepatocytes and Kupffer cells. AS a result, vinus particles are secreted into the bile and released in the sbol. HAV is secreted in large quantities approximately eleven (11) ‘ays prior to appearance of symptoms. The incubation period i 15-50 days, with a mortality rate of one in two hundred 14, tis an acute tness, which means thatthe symptoms can come on suddenly and sharply, causing a range of tnical problems fom mild illness with no symptoms to more severe iness. Typical symptoms include fatigue, nausea, vomiting, abdominal pain or discomfort (especially in the area beneath the lower ribs on the right side), loss of apptite, low-grade fever, dark urine, muscle pain, and yellowing ofthe skin (jaundice). But HAV is also one of several types of hepatitis viruses that can cause inflammation that affects @ iver’ abily to function, and in some cases can cause lve falure, chronic Iver disease, or even death‘The HAV Outbreak 48. Since June 12, 2018, residents of the land of Oahu have become infected by Hepatitis A 16, The Stalo of Hawaii Dopartment of Heath has determined that 271 persons, all duis, have become infectoe with Hepatitis A 47. Findings of the investigation suggest that 68 infected persons required hospitalization. 18. Findings of he investigation suggest that the source of the autboak is on the ‘sland of Oahu 19, Findings ofthe Investigation suggest hat tho onset ofthe iness ranged between June 12,2016 and September 4, 2016, 20, Based upon information and belt, the Hepattis A infection was caused by consumption of scallops at restaurants operated by Defendant Genki Sushi USA, Ine. and the calope wore distibuted fo Defendant Genk! Sushi USA, Ine. by Defendant HNK, In, dba Koha Foods. Said st llops were imported to the United Sates from the Philippines by Defendant Soa ort Products Corporation and sold to HNK. Ine, dba Koha Foods. DRISCOLL's Hepatitis A lines 21, DRISCOLL was on Hawaian Anes Fight 65 fom Oakland, Cafomia to Kona, Hawai on July 26, 2016. 22. The Slate of Hawaii Department of Heath and Hawaiian Aines confirmed that {woof he companys infight crowmombers tested postive for outbreak strain of Hepatitis A. One or ‘more ofthe cremembers was on DRISCOLL fight on July 26,2016, 23. DRISCOLL fst began to experience symptoms af his Hepatts A infecton on or about the moring of August8, 2016, wile at work 24, He loft work eat at around 11:00 am, fo retum home and rest While on his way home, DRISCOLL received & phone cal rom the State of HawallDopatment of Heath to 4inform him that he had beer exposed fo HAV while on his fight on July 28, 2016, from Oakland, Califomia to Kona, Hawaii 25. The next day, DRISCOLL sought medical treatment and submited a blood ‘sample for laboratory testing 28, DRISCOLL's blood sample ultimately tested posive for the outbreak strain of Hav. 27 Today, DRISCOLL is sowiy recovering. While waking his dog every moming, he has realized that his stamina is no where near where i used tobe, his stomach continues to be sore, and his stools continu to be so 28, DRISCOLL & an accomplished artist and plasterer specialist. He was on a special ob atthe Intemational Marketplace that was to last for sk weeks. As a result of his Hepatitis A infection, he was only able to work for three or four days, resulting in signcant wage loss. IV, STRICT PRODUCTS LIABILITY 29. By this reference, DRISCOLL incorporates paragraphs 1 through 28 of this ‘Complaint as f each was set forth here in its entity 20. At all times material to ths Complaint, the Defendants were inthe business of importing, manufacturing, dstbuting, marketing, andlor seling the scallops in the ordinary course of business, 31, There was amanufacturing dafectin the scallops and insufficient warming of eald defects withthe scallops lt the Defendants possession and contro. 32, The scallops contained a manufacturing defect because it was contaminated wih HAV when ft ft the Defencants’ possession and control. The presence of HAV was a condition of the product that rendered it unreasonably dangerous for its intended use beyond the extent that would be contemplated by the ordinary consumer or user of the scallops. Due to thepresence of HAV, the scallops dd nat conform to the design of the defendants’ other products atthe manufacturing state 38, There was an insufficient warning defect in the scalops when it lett the efendants’ possession and control. The scallops were defective because it was contaminated with HAV and the Defendants fled to give adequate wamings of the product's dangers, which by me application of reasonably developed human ski and foresight, snould have been known, ‘The Defendants also flied to gue adequate warnings and instructions to avoid such dangers. ‘Tho Defendants’ failure to provide such wamings and instructions rendered the scalops unreasonably dangerous. 34, The scallops’ manufacturing defects and insufficient warings were the direct, proximate, and producing cause of DRISCOLL's injuries and damages set forth below. 35. The Defendants are therefore strcly liable for importing, manufacturing, distributing, marketing, ardor seling defective and unreasonably dangerous scallops and introducing it into the strean of commerce. V. NEGLIGENCE 36. By this reference, DRISCOLL incorporates paragraphs 1 through 35 of this Complaint af each was st forth her in its entity 37. The Defendants owed DRISCOLL a duty or ordinary care in the manufactur, preparation, testing, packaying, marketing, distribution, and seling of the scallops in question, Further, the Defendants oved DRISCOLL a duty of warning o¢ instructing him of potentially hazardous oF ife-treatening conditions wth respect to the scallops 38, The Defendants breached their duties in one or more ofthe flowing ways: Negligent imporing, manufacturing, cistbuting and sling the scallops; b. _Faling to propery test the scallop before pacing into the steam of commerce €. Failing to prevent human andlor animal feces from coming nto contact with the scallops;4. Failing to adequately monitor he safety and sanitary concitions oftheir premises; 12. Faling to apaly their own polices and procedures to ensure the safely and sanitary conetions oftheir premises; 1. Faling to adopt andlor folow FDA recommended good manufacturing practises; 13. Faling totale reasonable measures to prevent the transmission of HAV and relate acuteravion ofthe premises; 1h. Fling to property rain and supervise ther employees an’ agents fo prevent the transmission of HAV and related fith and adulteration of the premises; i. Feng to wam DRISCOLL and the general public ofthe dangerous propensities ofthe scallops that they consumed, particularly that was contaminated with HAV, despite knowing or having reason to know of such dangers; |. Falling to inszuct DRISCOLL of proper procedures to safe use ofthe scallops; and k. Faling to imal disclose post sale information concerning the dangers astociated wth the scallops. 38. All dangers associated with the contaminated scallops were reasonably foreseeable andlor scienticaly discoverable by the Defendants at the tie the Defendants placed the scallops info the stream of commerce. 40. The Defendants’ conduct was direct, proximate, and producing cause of DDRISCOLL's injuries and damages set forth below. Vi. BREACH OF IMPLIED WARRANTY 41, By this reference, DRISCOLL incorporates paragraphs 1 through 40 of this Complain as if each was set forth here ints entirety. 42, The Defendants are merchants who manufacture, impor, estibute, market, ‘andlor sll scallops. DRISCOLL was a consumer.43, The Defendants breached the implied warranty of merchantability by impliedly warranting thet the scalops was fi forthe ordinary purpose for which scallops is used, thal, as a fungile good, the scallors was of fair and average quality within the description on the package, and thatthe scalops was adequately labeled. 44, The cxdinary purpose for which scallops was not ft is human consumption Seats were fi fra covasnptio dae oUhefat hi was conlaiatod wit HAV. 45. Scallops, as fungible good, were not of average qually, a8 scallops of average quality would nat be contaminated with HAV. 46. The scallops wore not adequately labeled, as i failed to warn of risk of HAV contamination. 447. The Defendants breached the implied warranty of ness fr a particular purpose by holding out unreasonably dangerous scallops (Le. scallops contaminated with HAV) to DRISCOLL and the publ: as being safe when they knew or had reason to know that the scallops was not safe an that DRISCOLL and the public would eansume the scallops. 48. The Defendants did not dscaim these implied warranties, 49. ‘The Defendants! conduct was a direc, proximate, and producing cause of DRISCOLL’ injuries and damages set forth below. Vil. DAMAGES 50, By this reference, DRISCOLL incorporates paragraph 1 through 49 of this Complaint as i each was set forth herein its entirety. 51. The Defendants’ conduct was a diect, proximate, and producing cause of DDRISCOLL’s personel injures and damages, including but not ited t, pain and suffering, lost ‘wages, lost earning capaciy, past and future medical and pharmacoutical expenses, emotional distess, and other general special ordinary, incidental, and consequential damages as would be anticipated to arise under the circumstances.WHEREFORE, DRISCOLL prays for judgment agains the Defendants, jinly and severally, a8 follows 1 General damages tobe proven at tial Special damages tobe proven atta; Court costs Pre-and postJudgment interest atthe highest rate aliowable by law; and For such other general and specif eit as the Court deems just and proper. DATED: Hono, Hawai, _ Seem fees 2¥, Der 6 OGAWA, LAU, NAKAMURA & JEW Attosneyg-at-Law, A Law Corporation MIGRAEL F_OCONNOR Attomey for Paint JOHN DRISCOLLINTHE CIRCUIT COURT OF THE FIRST CIRCUIT [STATE OF HAWAII 16-1-1779-89 owBe JOHN DRISCOLL, an individual, ) cIvILNo. ) Praini, ) DEMAND FOR JURY TRIAL, ) vs } (GENK! SUSHI USA, INC., a Hawai ) corporation; HNK, INC., dba Koha Foods, a) Hawaii corporation; SEA PORT ) PRODUCTS CORPORATION, a California) ‘corporation; JOHN DOES 1-10; andDOE ENTITIES 1-10, ) ) Defendants ) ) per JURY TRIAL Piaintif JOHN DRISCOLL, by and through his undersigned counsel, hereby demands a jury trial for al triable claims. be U, 2006 OGAWA, LAU, NAKAMURA & JEW Aijorpeys-at-Law, A Law Corporation Sebi MIGHAEL F_OGONNOR ‘Attomey for Paitif JOHN DRISCOLL, DATED: Honolulu, Hawai,INTHE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAl Ge 16-1-1779-09 JOHN DRISCOLL, annul, omit no. Plait ‘SUMMONS ) ) ) ) ) ) (GENK! SUSHI USA, INC. 2 Hawaii ) corporation; HNK, INC.,dta Koha Foods, a) Hawaii corporation; SEA PORT ) PRODUCTS CORPORATION, a California) corporation; JOHN DOES 1-10; DOE ) ENTITIES 1-10, ) ) Deterdants. ‘SUMMONS STATE OF HAWAII To the Above-Named Defendants: ‘You are hereby sunmened and required to fle with the Court and serve upon Ogawa, Lau, Nakamura & Jow, Plintff attomey, whose address is 707 Richards Stret, Sute 600, Honolulu, Hawai 96813, a answer tothe Complaint which fs herewith served upon you, within 20 days after service ofthis Summans upon you, exclusive ofthe day of service. Hf you fail to do so, judgment by defaut willbe taken against you forthe roi demanded inthe Complaint ‘This Summons shal not be personaly delivered between 10:00 pm. and 6:00 am. on the premises not open tothe general publ, unless a judge ofthe above-enttted court permit, In writing on this Summons, personal delivery during those hours.[A falure to obey tis Summons may resu in an entry of defaut and default judgment agains the cisobeying person or party. SEP 21 2016 DATED: Honolulu, Hawa : Gerkar Court