The victims of a hepatitis A outbreak at a Roanoke restaurant — which killed four people and sickened more than 40 — were allowed Thursday to broaden their legal claims.
When the illness first struck customers of Famous Anthony’s late last summer, it was believed that an infected employee inadvertently spread the virus to food they ate at the restaurant’s Grandin Road Extension and Williamson Road locations.
Further investigation has determined that in addition to contaminating the food, the employee also touched surfaces such as doorknobs, tables and menus. Some customers who later came into contact with those surfaces were likely infected, according to Bill Marler, a Seattle attorney who represents many of them.
“There is as much evidence that this was surface contamination as it was food contamination,” Marler said during a hearing Thursday in Roanoke’s federal court.
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At the request of the plaintiffs’ attorneys — and over the objections of Famous Anthony’s insurance carrier, Cincinnati Insurance Co. — Judge Michael Urbanski allowed the victims to amend their earlier complaints to include both sources of the illness.
Cincinnati, which had earlier agreed to cover claims of food contamination, argued that the plaintiffs’ request to broaden the scope was “a theory in search of evidence.”
But in granting a motion made by Marler and other attorneys to amend the complaints, Urbanski said it may never be known how each diner at the restaurants came down with hepatitis A.
“This case needs to go forward,” he said. “It needs to be resolved. And I intend to do that.”
People who were sickened, and the family members of those who died, have filed about 40 lawsuits against Famous Anthony’s in state court. Those legal claims were put on hold in January, when the restaurant filed for bankruptcy.
In all likelihood, the lawsuits will not be decided by a judge or jury. Instead, a medical claims evaluator appointed by the bankruptcy court will determine how much each person should receive from a pool of insurance money.
When a dispute surfaced over whether the coverage limit is $7 million as Cincinnati contends, or $14 million as the plaintiffs argue, that question was removed to U.S. District Court in Roanoke.
Urbanski must now decide whether the policy allows for $7 million in total, or whether that amount should apply to each of the two restaurants where the outbreak occurred. Once that question is resolved, the matter will be returned to bankruptcy court for the distribution of money to the victims.
Cincinnati agreed early this year to pay $7 million to settle the case, according to the company’s attorney, James Humphreys. But that offer was rejected by the plaintiffs.
Since then, the case has been complicated further by a dispute over whether the claims should be limited to food contamination, or include surface contamination or a combination of the two.
The insurance company argues that expanding the case beyond food as the source of the illness raises questions about liability and coverage that it cannot determine at this point.
But the victims are also in the dark about the outbreak, Marler said, because they have not been able to acquire information from the legal process of discovery since their lawsuits were stayed by the bankruptcy proceedings.
The Virginia Heath Department’s Roanoke office has said the virus was spread, beginning in late summer 2021, by an employee who worked at three Famous Anthony’s locations. Patrons became sick at the Grandin and Williamson road eateries, but not at the third.
At the time, the unidentified worker did not know that he or she had hepatitis A, which generally does not produce symptoms for the first two weeks, which is also the period in which it is most contagious.
Microscopic amounts of fecal matter from the employee, who is suspected of inadequate hand-washing after using the bathroom, was spread to food and restaurant surfaces and then to customers.
The employee had multiple duties, which included working as a cook, waiting on tables and greeting customers as they came into the restaurants.
Hepatitis A causes liver inflammation. At least two Famous Anthony’s customers became so ill that they required liver transplants.
“It has been a year since this tragic outbreak,” Marler said. “Many of my clients were either getting out of the hospital or burying loved ones at this time a year ago.”