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William D. Marler, WSBA #17233
R. Drew Falkenstein, WSBA #33401
Josh Fensterbush, WSBA #51109
Marler Clark
1012 First Avenue
5th Floor
Seattle, WA 98104

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF PIERCE

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ERICKA CECCHI, an Individual,

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Plaintiff,
vs.
EL TORO, INC.,

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Defendant.

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NO.

COMPLAINT FOR PERSONAL
INJURY AND DAMAGES

COMES NOW the plaintiff, ERICKA CECCHI, by and through her attorneys of record, the
MARLER CLARK law firm, and alleges as follows:

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I. PARTIES AND JURISDICTION
1.1

The plaintiff, ERICKA CECCHI (“the plaintiff”), resides in Pierce County, Washington.

1.2

The defendant, El Toro, Inc. (“the defendant”), at all material times owned and operated

the restaurant known as “El Toro” located at 5716 N. 26th St., Tacoma, Washington. The defendant at all

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COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 1

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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times material hereto was carrying on in the ordinary course of its business at this location the

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manufacture, preparation, service, and sale of food to customers. As such, the defendant was doing

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business in Tacoma, Pierce County, Washington.

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1.3

This court has jurisdiction, and venue is proper, because the incident complained of

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herein occurred in Pierce County, Washington, and because the defendant at all times relevant was

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doing business within the state of Washington.

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II. FACTS
The Outbreak
2.1

The Defendant owns and operates the restaurant called “El Toro” in Tacoma,

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Washington, located at 5716 N. 26th St. There are multiple related El Toro restaurant locations in the

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Tacoma area, including another restaurant located at 3820 Bridgeport Way W. Since late December

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2017, patrons of the Defendant’s El Toro restaurant located at 5716 N. 26th St., as well as the restaurant

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located at 3820 Bridgeport Way W., have reported experiencing severe gastrointestinal illness after

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dining at the restaurants.

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2.2

The Tacoma-Pierce County Health Department began investigating the outbreak after

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receiving multiple reports of illness from patrons of the El Toro located at 5716 N. 26th St. That

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restaurant location was temporarily closed due to the outbreak, and for thorough sanitization.

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2.3

Health Department officials later received reports of illness from patrons of the second

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El Toro restaurant—located at 3820 Bridgeport Way W.—and that location was then temporarily closed

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for sanitization as well.

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COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 2

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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2.4

As of the date of this filing, the Health Department has received 10-15 reports of illness

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from patrons of the Bridgeport Way location. The Health Department has received close to 400 reports

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of illness from patrons of the N. 26th St. location. More illnesses will likely be identified. “We don’t

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yet have an exact number because we have not interviewed all the people who have made illness

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reports. We continue to receive additional illness reports,” the Health Department said in a statement.

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2.5

“We know two staff members at the Tacoma location worked while ill during the time

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customers there dined and later got sick. It’s still unclear if the outbreaks at the two locations are

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connected,” the Health Department reported. “Because of the nature of norovirus outbreaks, we may

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never know the exact affected items that caused illness. We know all the cases have dining at the El

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Toro Restaurants in common.”

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The Norovirus:

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2.6

Norovirus is a member of the family Caliciviridae, a family that consists of several

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distinct groups of viruses. Each such group was named after the places where the outbreaks first

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occurred.

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2.7

Humans are the only host of norovirus, which has several mechanisms that allow it to

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spread quickly and easily. Norovirus infects humans through person-to-person transmission or through

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contamination of food or water. In addition, Norovirus is able to survive a wide range of temperatures

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and has evolved to avoid the immune system, which results in outbreaks.
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Norovirus illness usually develops 24-to-48 hours after ingestion. Symptoms include

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nausea, vomiting, diarrhea, and abdominal pain, headache and low-grade fever. And although
symptoms usually last only one-to-two days in most healthy individuals, Norovirus infections can
COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 3

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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become quite serious in children and the elderly, and those who are immune-compromised.

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There is no specific treatment available for Norovirus. In most healthy people, the

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illness is self-limiting and resolves without the need for medical treatment. For infants, children,

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elderly, and immune-compromised populations, infections can lead to severe complications, including

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death.

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Ericka Cecchi’s Norovirus Infection:

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2.10

On January 2, 2018, Ericka Cecchi and her girlfriend dined at the Defendant’s El Toro

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restaurant located at 5716 N. 26th St., Tacoma, Washington. They ate chips and salsa, as well as steak

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fajitas, spending $42.74 for their meal.

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Ms. Cecchi awoke on or about January 4, 2018 at approximately 6 AM feeling ill. Her

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stomach was nauseated and cramped, and she felt fatigued and generally unwell. Around 2 PM the

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same day, she began vomiting violently and began to suffer from repeated bouts of explosive diarrhea.

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She also began to experience chills, a low-grade fever, and a headache. In total, Ms. Cecchi recalls

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vomiting more than 12 times that first day.

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2.12

Ms. Cecchi’s symptoms continued on January 5, 2018, on which date she saw her

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primary physician at St. Joseph’s Medical center, where she submitted a urine sample that was positive

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for blood. Ms. Cecchi’s symptoms gradually faded after several days of illness.

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2.13

On or about January 8 or 9, Ms. Cecchi learned that the Defendant’s El Toro restaurant

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had been closed down due to a suspected Norovirus outbreak. Fearing that she was one of the many

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victims, Ms. Cecchi contacted her physician and submitted a stool sample for testing. On or about

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January 11, 2018, Ms. Cecchi learned that her stool sample tested positive for Norovirus.
COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 4

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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As of January 12, 2018, Ericka’s urine test results remain positive for blood, and she

continues to suffer from diarrhea, stomach cramps, and nausea.

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III. FIRST CAUSE OF ACTION

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STRICT PRODUCT LIABILITY

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3.1

The defendant is a product manufacturer within the meaning of the Washington Product

Liability Act (“WPLA” or “the Act”), RCW 7.72.010(2), and manufactured the food that caused the
plaintiff’s Norovirus infection and related injuries. The Norovirus-contaminated food consumed by the
plaintiff was a product within the meaning of the WPLA, RCW 7.72.010(3).
3.2

Under the WPLA, the defendant owed a duty to the plaintiff to manufacture a product

that was reasonably safe in construction, did not materially deviate from applicable design
specifications, or otherwise deviate in some material way from otherwise identical units in the
defendant’s product line.
3.3

Under the WPLA, the defendant owed a duty to the plaintiff to manufacture a product

that conformed to their implied warranties, as defined by RCW Ch. 62A, including, but not limited to,
the implied warranty that defendant’s food was fit for human consumption.
3.4

The food manufactured and sold by the defendant that caused plaintiff’s Norovirus

infection, and all associated legal injuries, was not reasonably safe in construction, and did not conform
to defendant’s implied warranties, because it was contaminated and adulterated with, among other
things, Norovirus.
3.5

Because the defendant’s food was not reasonably safe in construction, and did not

COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 5

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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conform to defendant’s implied warranties, the defendant is strictly liable to the plaintiff for the harm

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proximately caused by the contaminated food.

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IV. SECOND CAUSE OF ACTION

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NEGLIGENCE

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4.1

The defendant manufactured, distributed and sold a product that was not reasonably safe

as designed or manufactured, within the meaning of the WPLA, RCW 7.72.030(1).
4.2

The defendant was negligent in manufacturing, distributing, and selling a product that

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was not reasonably safe because adequate warnings or instructions were not provided including, but not

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limited to, the warning that the food may contain Norovirus, and thus should not be provided for the

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purpose of human consumption.
4.3

The defendant had a duty to comply with all statutory and regulatory provisions that

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pertained or applied to the manufacture, distribution, storage, labeling, and sale of their food products

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including, but not limited to, the Federal Food, Drug, and Cosmetics Act, which bans the manufacture,

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sale, and distribution of any “adulterated” food. The defendant breached this duty.

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4.4

The plaintiff is among the class of persons designed to be protected by the statutory and

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regulatory provisions pertaining to the defendant’s manufacture, distribution, storage, labeling, and sale

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of their food.

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4.5

The defendant owed a duty to the plaintiff to use reasonable care in the manufacture,

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distribution, and sale of its product, to prevent contamination by Norovirus. The defendant breached

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this duty.

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4.6

As a result of the defendant’s negligence, the plaintiff suffered severe and permanent

COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 6

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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personal injuries, as well as economic loss.

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V. DAMAGES
5.1

The plaintiff has suffered general, special, incidental, and consequential damages as a

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direct and proximate result of the acts and omissions of the defendant, which damages shall be fully

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proven at the time of trial, including, but not limited to: damages for loss of enjoyment of life, both past

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and future; medical and medical related expenses, both past and future; travel and travel-related

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expenses, past and future; emotional distress, and future emotional distress; pharmaceutical expenses,

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past and future; wage and other economic damages loss; loss of consortium; and other ordinary,

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incidental and consequential damages as would be anticipated to arise under the circumstances.

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PRAYER FOR RELIEF
WHEREFORE, the plaintiff prays, having stated her claims in full, request judgment by this
court against the defendants as follows:

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1.

For general damages, in amounts to be proven at the time of trial;

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For special damages, in amounts to be proven at the time of trial;

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3.

For costs, including their reasonable attorney fees; and

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4.

For such other and further relief as the court deems just and equitable in the

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circumstances.

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The plaintiff further requests that the court award the plaintiff the opportunity to amend or

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modify the provisions of this complaint as necessary or appropriate after additional or further discovery

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is completed, and after all appropriate parties have been served.

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COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 7

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898

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DATED this ____ day of January, 2018.
MARLER CLARK, L.L.P., P.S.

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William D. Marler, WSBA #17233
R. Drew Falkenstein, WSBA #33401
Josh Fensterbush, WSBA #51109
Attorneys for Plaintiff

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COMPLAINT FOR PERSONAL INJURY AND DAMAGES - 8

MARLER CLARK
Attorneys at Law
1012 First Avenue, Fifth Floor
Seattle, Washington 98104-1008
Tel. (206) 346-1888
Fax. (206) 346-1898