New York Law Journal | Monday, November 28 2016

Verdict: $1,311,000 / Actual: $1,331,691

Barry J. Brett and Leslie Brett v. 44th Street Restaurant LLC. d/b/a DB Bistro Moderne, No. 15 CV 2921

Court / Judge: Southern District / Edgardo Ramos

Plaintiffs’ Attorney: Elizabeth Eilender, of counsel, and David Jaroslawicz, Jaroslawicz & Jaros

Defense Attorneys: Paul Bottari, Wilson, Elser, Moskowitz, Edelman & Dicker

Facts & Allegations: On Feb. 28, 2015, Barry Brett, 75, unknowingly swallowed a 2.5-centimeter-long metal bristle that was in some chicken that he had been served at a restaurant at 55 W. 44th St. in Manhattan.

He sued the restaurant’s owner, 44th Street Restaurant LLC., alleging his tainted meal violated the Uniform Commercial Code’s warranty of merchant ability, and that 44th Street Restaurant was strictly liable.

Brett’s counsel said the bristle had fallen off of a cleaning brush that had been used in the restaurant’s kitchen. They said the brush was a shoddy utensil that had been purchased at a store that sold hardware and was not intended for use by restaurants. They also said the brush was used near an area where pots and pans were stored, and that the management had not regularly inspected the brush’s condition.

Brett’s counsel further said that the restaurant’s management ignored a relevant warning from the Centers for Disease Control and Prevention, advising that wire-bristle brushes were dangerous because their bristles dislodged regularly.

Defense counsel said that the warning was addressed to doctors, and claimed the brush’s manufacturer had not provided a warning disclosing the hazards. Defense counsel further claimed the brush was not used near where Brett’s meal was prepared. He estimated that 20 feet separated the areas.

Injuries / Damages: After four days had passed, Brett saw a doctor for throat pain. Tests revealed that the bristle was lodged in his esophagus, and that he had developed an abscess and an infection. He immediately had surgery to remove of the object and was hospitalized for five days.

Brett said he cannot easily swallow food and has permanent scars on his neck and throat.

The parties stipulated that Brett’s medical expenses totaled $20,691. Brett sought recovery of that amount, $500,000 for past pain and suffering, and unspecified amount for future pain and suffering, and an unspecified amount for punitive damages. Brett’s wife sought recovery of damages for loss of consortium.

Defense counsel said Brett’s infection and residual effects were caused by his delay in seeking medical attention. The defense’s expert otolaryngologist said the infection would have been averted if Brett had been treated within the 24 hours of swallowing the bristle.

Result: The jury found that 44th Street Restaurant was liable, and that the defective meal constituted a violation of the Uniform Commercial Code’s warranty of merchantability. It also found that Brett failed to mitigate his damages. The jury determined damages totaled $1,511,000, but that Brett’s negligence merited a deduction of $200,000. After that deduction and the addition of the stipulated medical expenses.