IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

CHARLES NUNLEY, individually; 

Plaintiff,

vs.

ROUNDY’S SUPERMARKETS, INC., a 

Wisconsin corporation d/b/a MARIANO’S; 

and FRESH EXPRESS, INC., a Delaware 

corporation,

Defendants.

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COMPLAINT AND JURY DEMAND

NOW COMES Plaintiff, by and through his attorneys, GARY NEWLAND of 

NEWLAND AND NEWLAND and MARLER CLARK, L.L.P., P.S. (pro hac vice pending) and 

by this complaint complains of the Defendant ROUNDY’S SUPERMARKETS, INC. d/b/a 

MARIANO’S (herein after referred to as “the Defendant”), hereby states, alleges, and complains 

as follows:

PARTIES

1. Plaintiff Charles Nunley is a resident of Wheaton, DuPage County, Illinois.

Plaintiff resides within the jurisdiction of this Court and is a citizen of the State of Illinois

2. At all times relevant to this action, Defendant Roundy’s Supermarkets, Inc., was a 

Wisconsin corporation doing business as various grocery stores with locations throughout Illinois 

and Wisconsin, with its principal place of business in Milwaukee, WI. Therefore, Roundy’s 

Supermarkets, Inc., is a citizen of the State of Wisconsin.

3. At all times relevant to this action, Defendant Fresh Express, Inc., was a corporation 

organized and existing under the laws of the state of Delaware with its headquarters located at 

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4757 The Grove Drive, Suite 260, Windermere, Florida 34786. Therefore, Defendant Fresh 

Express, Inc., is a citizen of the states of Delaware and Florida.

JURISDICTION AND VENUE

4. This Court has jurisdiction over the subject matter of this action pursuant to 28 

U.S.C. § 1332(a) because the matter in controversy exceeds $75,000.00, exclusive of costs, it is 

between citizens of different states, and because the Defendants have certain minimum contacts 

with the State of Illinois such that maintenance of the suit in this district does not offend 

traditional notions of fair play and substantial justice.

5. Venue in the United States District Court for the Norther District of Illinois is 

proper pursuant to 28 U.S.C. § 1391(a)(2) because a substantial part of the events or omissions 

giving rise to Plaintiff’s claims and causes action occurred in this judicial district, and because 

the defendant is subject to personal jurisdiction in this judicial district at the time of the 

commencement of the action.

FACTS

The Outbreak

6. The Centers for Disease Control and Prevention (CDC) investigated a multistate 

outbreak of Shiga toxin-producing E. coli O157:H7 infections in late 2019. A total of 167 people 

infected with the outbreak strain of E. coli O157:H7 were reported from 27 states. 

7. Illnesses started on dates ranging from September 20, 2019, to December 21, 

2019. Ill people ranged in age from less than 1 to 89 years, with a median age of 27. Sixty-four 

percent of ill people were female. Of 165 ill people with information available, 85 (52%) 

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hospitalizations were reported, including 15 people who developed hemolytic uremic syndrome 

(HUS), a type of kidney failure. No deaths were reported.

8. Epidemiologic, laboratory, and traceback evidence indicated that romaine lettuce 

from the Salinas Valley growing region in California growing region was the likely source of 

this outbreak.

9. The Maryland Department of Health identified the outbreak strain of E. 

coli O157:H7 in an unopened package of Ready Pac Foods Bistro® Chicken Caesar Salad 

collected from a sick person’s home in Maryland. The Wisconsin Department of Health 

Services identified the outbreak strain of E. coli O157:H7 in an unopened bag of Fresh Express® 

Leafy Green Romaine collected from an ill person’s home in Wisconsin. The Salinas Valley 

growing region in California was the main source of the romaine lettuce in both products.

10. Additionally, states and the U.S. Food and Drug Administration traced the source 

of some of the romaine lettuce eaten by ill people. Information gathered indicated that the 

romaine lettuce of interest was harvested from the Salinas Valley growing region in California. 

As of January 15, 2020, this outbreak appears to be over.

Prior Outbreaks Linked to Lettuce and Other Leafy Greens

11. E. coli O157:H7 outbreaks associated with lettuce and other leafy greens are by no 

means a new phenomenon. Outlined below is a list of E. coli outbreaks involving contaminated 

lettuce or leafy greens in the past decade: 

Date Vehicle Etiology Confirmed 

Cases States/Provinces

Sept. 2009 Lettuce: Romaine or 

Iceberg E. coli O157:H7 29 Multistate

Sept. 2009 Lettuce E. coli O157:H7 10 Multistate

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Date Vehicle Etiology Confirmed 

Cases States/Provinces

April 2010 Romaine E. coli O145 33 5:MI, NY, OH, 

PA, TN

Oct. 2011 Romaine E. coli O157:H7 60 Multistate

April 2012 Romaine E. coli O157:H7 28 1:CA

Canada

June 2012 Romaine E. coli O157:H7 52 Multistate

Sept. 2012 Romaine E. coli O157:H7 9 1:PA

Oct. 2012 Spinach and Spring Mix 

Blend E. coli O157:H7 33 Multistate

Apr. 2013 Leafy Greens E. coli O157:H7 14 Multistate

Aug. 2013 Leafy Greens E. coli O157:H7 15 1:PA

Oct. 2013 Ready-To-Eat Salads E. coli O157:H7 33 Multistate

Apr. 2014 Romaine E. coli O126 4 1:MN

Apr. 2015 Leafy Greens E. coli O145 7 3:MD, SC, VA

June 2016 Mesclun Mix E. coli O157:H7 11 3:IL, MI, WI

Nov. 2017 Leafy Greens E. coli O157:H7 67 Multistate and 

Canada

Mar. 2018 Romaine E. coli O157:H7 219 Multistate and 

Canada

Nov. 2018 Romaine E. coli O157:H7 88 Multistate and 

Canada

Sept. 2019 Romaine E. coli O157:H7 23 Multistate

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Date Vehicle Etiology Confirmed 

Cases States/Provinces

Nov. 2019 Romaine E. coli O157:H7 104 Multistate and 

Canada

The E. coli O157:H7 bacteria

12. Escherichia coli are the name of a common family of bacteria, most members of 

which do not cause human disease. E. coli O157:H7 is a specific member of this family that can 

cause bloody diarrhea (hemorrhagic colitis) in humans. In the years since E. coli O157:H7 was 

first identified as a cause of diarrhea, this bacterium has established a reputation as a significant 

public health hazard.

13. E. coli O157:H7 lives in the intestines of cattle and other ruminants. E. coli

O157:H7 is also notable among pathogenic bacteria for its extremely low infectious dose—that is, 

the number of bacteria necessary to induce infection in a person. While for most pathogenic 

bacteria it takes literally millions of bacterial colonies to cause illness, it is now known that fewer 

than 50 E. coli O157:H7 bacteria can cause illness in a child. The practical import is that even a 

microscopic amount of exposure can trigger a devastating infection. 

14. The most severe cases of the E. coli O157:H7 infection occur in young children and 

in the elderly, presumably because the immune systems in those age populations are the most 

vulnerable. After a susceptible individual ingests E. coli O157:H7, the bacteria attach to the inside 

surface of the large intestine and initiates an inflammatory reaction of the intestine. What 

ultimately results is the painful bloody diarrhea and abdominal cramps characteristic of the 

intestinal illness. 

15. The mean incubation period (time from ingestion to the onset of symptoms) of E. 

coli O157:H7 is estimated to be two to four days (range, 1-21 days). Typically, a patient with an 

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acute E. coli O157:H7 infection presents with abdominal cramps, bloody diarrhea, and vomiting. 

The duration of diarrhea in children with E. coli O157:H7 infections are significantly longer than 

that of adults.

16. E. coli O157:H7 can produce a wide spectrum of disease from mild, non-bloody 

diarrhea, to severe bloody diarrhea accompanied by excruciating abdominal pain to lifethreatening complications. In most infected individuals, the intestinal illness lasts about a week 

and resolves without any long-term effects. Antibiotics do not appear to aid in combating these 

infections, and recent medical studies suggest that antibiotics are contraindicated for their risk of 

provoking more serious complications. Apart from good supportive care, which should include 

close attention to hydration and nutrition, there is no specific therapy. 

17. About 10% of individuals with E. coli O157:H7 infections (mostly young children) 

go on to develop hemolytic uremic syndrome (HUS), a severe, potentially life-threatening 

complication. The essence of the syndrome is described by its three central features: destruction 

of red blood cells, destruction of platelets (those blood cells responsible for clotting), and acute 

renal failure due to the formation of micro-thrombi that occlude microscopic blood vessels that 

make up the filtering units within the kidneys. 

18. There is no known therapy to halt the progression of HUS. The active stage of the 

disease usually lasts one to two weeks, during which a variety of complications are possible. HUS 

is a frightening illness that even in the best American medical facilities has a mortality rate of 

about 5%. The majority of HUS patients require transfusion of blood products and develop 

complications common to the critically ill.

Charles Nunley’s E. coli O157:H7 infection

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17. Plaintiff purchased and consumed Fresh Express brand romaine lettuce from 

Mariano’s Grocery Store, located at 625 S. Main St., Wheaton, IL 60187, multiple times in the 

two weeks preceding his illness.

18. Plaintiff’s symptom onset occurred on or about November 11, 2019, and included 

abdominal pain, nausea, and diarrhea, which soon turned bloody

19. Plaintiff’s condition continued to deteriorate, and he sought medical care at 

Central DuPage Hospital on November 13 and again on November 15. Plaintiff remained 

hospitalized until November 20, 2019.

20. A stool sample collected from Plaintiff at Central DuPage Hospital tested positive 

for E. coli O157.

21. Plaintiff continues to recover from his E. coli infection.

22. As a result of his E. coli O157:H7 infection, Plaintiff suffered significant physical 

injury, economic loss, medical bills, pain and suffering, loss of normal life, lost wages, and 

emotional distress.

CAUSES OF ACTION

COUNT I—STRICT PRODUCT LIABILITY

23. Plaintiff incorporates the preceding paragraphs of this Complaint, by this reference, 

as if each and every of these paragraphs were set forth here in its entirety.

24. The Defendants manufactured, distributed, and sold the adulterated food that 

injured Plaintiff and caused him to become infected with E. coli O157:H7. 

25. Food and drink that is contaminated with E. coli O157:H7 is unsafe when put to the 

use reasonably foreseeable considering the nature of the product. Namely, E. coli O157:H7-

contaminated food and drink is unfit for human consumption.

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26. The food that Plaintiff purchased from the Defendants was contaminated with E. 

coli O157:H7. Plaintiff’s consumption of the contaminated food caused him to become infected 

with E. coli O157:H7and to suffer injuries as a direct and proximate result.

27. The food that Plaintiff purchased and consumed was contaminated with E. coli 

O157:H7 when it left the Defendants’ control. 

28. The Defendants are strictly liable to Plaintiff for the harm proximately caused by 

their manufacture and sale of an unsafe and defective food product. 

29. As a direct and proximate result of the Defendants’ strict liability as set forth 

herein, Plaintiff was caused to suffer serious injuries, has suffered bodily pain and mental 

anguish, has suffered and will suffer in the future pain of body and mind, has incurred medical 

and related expenses, and has suffered and will suffer in the future other damages. 

COUNT II—NEGLIGENCE

30. Plaintiff incorporates the preceding paragraphs of this Complaint, by this reference, 

as if each and every of these paragraphs were set forth here in its entirety.

31. The Defendants designed, manufactured, distributed, and sold food products that 

were adulterated with E. coli O157:H7 bacteria, a potentially deadly pathogen. These products, as 

a result of adulteration, were unfit for human consumption, and were not reasonably safe as 

designed, constructed, manufactured, and sold.

32. The Defendants owed a duty to all persons who were the eventual consumers of 

their product, as well as all persons foreseeably at risk of secondary transmission of disease, to 

manufacture and sell food that was safe to eat, was not adulterated with potentially harmful

pathogens like E. coli O157:H7, and that was not in violation of applicable food and safety 

regulations.

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33. The Defendants owed a duty to all persons who were the eventual consumers of 

their products, as well as all persons foreseeably at risk of secondary transmission of disease, to 

maintain their premises in a sanitary and safe condition so that no one eating food produced at the 

Defendants’ premises would be exposed to, or infected by, a potentially harmful pathogen like E. 

coli O157:H7. The Defendants also owed a duty to all persons who were the eventual consumers 

of their products to use wholesome ingredients, and to source those ingredients from entities who 

use reasonable care in the growth, harvest and distribution of those products, in the production of 

food for sale to the public.

34. The Defendants breached the duties it owed to persons who were the eventual 

consumers of their products, as well as all persons foreseeably at risk of secondary transmission 

of disease, by committing the following acts and omissions of negligence:

a. Failing to adequately maintain or monitor the sanitary conditions of their

food, drink, water, premises, and employees;

b. Failing to properly operate the locations where they manufactured their food 

in a safe, clean, and sanitary manner;

c. Failing to prevent the transmission of E. coli O157:H7 from their food, 

drink, water, premises, or employees, to the ultimate consumers of their products, and those 

foreseeably at risk of secondary transmission of disease;

d. Failing to properly train their employees and agents on how to prevent the 

transmission of E. coli O157:H7 on their premises, or in their food, drink and water; 

e. Failing to properly supervise their employees and agents to prevent the 

transmission of E. coli O157:H7 on their premises, or in their food, drink and water;

f. Manufacturing and selling adulterated food in violation of 410 ILCS 

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620/3.2;

g. Storing, offering, and delivering food in violation of 410 ILCS 620/3.1 and 

410 ILCS 620/3.4;

h. Failing to maintain their premises in a clean, sanitary, and healthful manner 

in violation of 410 ILCS 650/1 and 410 ILCS 650/2; and

i. Failing to properly and carefully select and monitor the entities from which 

they purchased and received raw materials used in the production of the products.

35. As a direct and proximate result of the Defendants’ negligent acts as set forth 

herein, Plaintiff was caused to suffer serious injuries, has suffered bodily pain and mental 

anguish, has suffered and will suffer in the future pain of body and mind, has incurred medical 

and related expenses, and has suffered and will suffer in the future other damages. 

COUNT III—BREACH OF WARRANTY

36. Plaintiff incorporates the preceding paragraphs of this Complaint, by this reference, 

as if each and every of these paragraphs were set forth here in its entirety.

37. By offering food for sale to the general public, the Defendants expressly warranted 

that such food was safe to eat, that it was not adulterated with a harmful pathogen, and that the 

food had been safely prepared under sanitary conditions.

38. By offering food for sale to the general public, the Defendants also impliedly 

warranted that such food was safe to eat, that it was not adulterated with a harmful pathogen, and 

that the food had been safely prepared under sanitary conditions.

39. The Defendants breached their express and implied warranties with regard to the 

food they manufactured and that was ultimately consumed by Plaintiff.

40. As a direct and proximate result of the Defendants’ breach of express and implied 

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warranties as set forth herein, Plaintiff was caused to suffer serious injuries, has suffered bodily 

pain and mental anguish, has suffered and will suffer in the future pain of body and mind, has 

incurred medical and related expenses, and has suffered and will suffer in the future other damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against the Defendants as follows:

a. Judgment for Plaintiff against the Defendants for just compensation in a fair and 

reasonable amount for the damages above set forth; and

b. Such additional and/or further relief, including interest, costs, and reasonable attorney 

fees, as this Court deems just and equitable.

JURY DEMAND

Plaintiff hereby demands a jury trial.

Dated: May 13, 2020

 /s/Gary A. Newland

 Gary A. Newland ARDC 6217146

 Erin A. Adamski ARDC 6317891

NEWLAND & NEWLAND, LLP

121 S. Wilke Road, Ste. 301

Arlington Heights, IL 60005

Tel: (847) 797-8000

Fax: (847) 797-9090

gary@newlandlaw.com

erin@newlandlaw.com

and

William D. Marler 

MARLER CLARK, LLP, PS

1301 Second Avenue, Suite 2800

Seattle, WA 98101

Tel: (206) 346-1888

Fax: (206) 346-1898

bmarler@marlerclark.com

jschell@marlerclark.com

(pro hac vice pending)

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