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Washington lawyer leads lawsuits in outbreak linked to Daily Harvest crumbles

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SEATTLE — Kirsten Paulsen began 2022 wanting to eat healthier and incorporate more vegetables into her diet. She found Daily Harvest, a food delivery company that touts easy to prep, plant-based meals, and signed up for regular shipments of smoothies, vegetable bowls and vegan ingredients to add to other dishes.

In one shipment, the Bellevue resident received a bag of French lentil and leek crumbles, for customers to add protein to a lasagna or an empanada. She prepared them according to the company’s instructions and added them to a meal. Within a day, she recalled, she was sweating profusely, dry heaving on the floor, in pain she equated to worse than giving birth to her son.

Her husband took her to an emergency room, where she was told she had heightened levels of bilirubin that could indicate potential issues with her liver or bile duct, and she was severely dehydrated. The doctors weren’t sure what caused the symptoms.

“The doctor asked me what I had eaten, because he thought I had been poisoned,” she said.

Paulsen didn’t know at the time in June that others in the U.S., including at least 16 in Washington, had consumed the same Daily Harvest crumbles and reported feeling ill.

In the months since their initial deliveries arrived, some of those Washington customers say they’re still sick, and a Seattle-area attorney is at the center of legal action related to the outbreak.

Daily Harvest received 470 reports of “illness or adverse reactions,” the company wrote on its website in June. An estimated 133 people were hospitalized, according to the Food and Drug Administration, which received a total of 393 reports connected to the crumbles.

Consumers reported gastrointestinal illnesses and abnormal functions of their livers, bile ducts, and/or gallbladders, according to the FDA. Some patients, including Paulsen, had their gallbladders removed.

Daily Harvest initiated a voluntary recall of the crumbles on June 17, sending an email that “a small number of customers have reported gastrointestinal discomfort” after consuming them. The company instructed costumers to dispose of the crumbles, of which 28,000 units were distributed from April 28 to June 17 throughout the U.S. through online sales and delivery, at the Chicago Daily Harvest store and at a pop-up in Los Angeles. Samples were also sent to social media influencers, a detail that later played a unique role in connecting the people impacted by the outbreak.

“We are taking this very seriously and doing everything we can to get to the bottom of this. Your health and well-being are our top priority,” the company wrote five days later.

In July, Daily Harvest posted on its website that it had identified tara flour, a plant-based ingredient that’s high in protein, as the cause. The company launched an investigation, founder and CEO Rachel Drori wrote, and worked closely with the FDA, the Centers for Disease Control and Prevention, “as well as top doctors, microbiologists, toxicologists and three independent labs” to determine what caused the adverse effects. The crumbles were the first and only time tara flour was used by Daily Harvest, which has more than 140 items, Drori wrote.

The FDA’s investigation is ongoing, the agency said last week, and it hasn’t determined the cause or ingredient that was the source of the reported symptoms.

Daily Harvest did not respond to The Seattle Times’ requests last week for additional on-the-record comments related to the lawsuits or allegations made in the lawsuits.

The company posted on its blog on Nov. 9 an extensive list of its food safety standards that have been in place since Daily Harvest was founded. This includes a requirement that farmers and suppliers confirm “every crop has been tested for toxins and pathogens.” They must show proof that food is organic, not genetically modified and allergen-free when applicable, Daily Harvest wrote. The company said it also conducts pesticide residue tests.

The company previously said it would offer refunds to customers. For some who say they were sickened, a refund and possible answer to what made them sick wasn’t enough. A handful of lawsuits have been filed against the company, alleging Daily Harvest was negligent in oversight of its products and in adequately warning people about the crumbles. Daily Harvest has denied the allegations.

Two lawsuits were filed by customers represented by Seattle-area lawyer Bill Marler, who says he’s been hired by 346 people across the U.S. who allege the crumbles made them sick. He withdrew a third complaint when he learned the company’s terms of use have an arbitration clause, meaning disputes must be solved through an arbitrator. Earlier this month, a federal judge in New York ruled another Daily Harvest customer’s lawsuit will go to arbitration.

The lawsuits represented by Marler, one in state court and one in federal court, were filed on behalf of children he notes didn’t agree to the company’s terms of use. The federal complaint was filed by an Oklahoma man whose young daughter was allegedly sickened, and also lists manufacturer Stone Gate Foods and supplier Smirk’s.

The claims, Daily Harvest said in an Oct. 28 court filing, fail in whole or in part because the company “did not know, nor should it have known of the alleged defect in the product,” nor did it create the alleged defect. An attorney representing Smirk’s said there was no evidence the tara flour correlates to the customers’ health issues and that the product met all specifications and food-importer requirements. Stone Gate Foods did not respond to requests for comment.

Marler first heard about Daily Harvest from a former client he represented in the 1990s, who was infected due to an E. coli outbreak linked to undercooked beef at Jack in the Box restaurants. She was sickened again, Marler said, allegedly by the crumbles and received an email from Daily Harvest about the gastrointestinal complaints.

“She said ‘I am suffering more than just tummy aches. I’ve been really sick and on top of that, there are all these people on Reddit who have the same symptoms,’” he recalled.

Consumers learned about the outbreak not just from health departments but from Reddit, TikTok or Instagram. Influencers with hundreds of thousands of followers posted about their experiences; commenters wrote they had the same symptoms.

“The connection was made through social media,” Marler said. “That doesn’t happen very often.”

Anne Heartsong was recovering at home in Everett after three days in the hospital when she received a text from her niece telling her to check out a TikTok video. The June 18 video was from a popular TikTok creator who said about a month earlier she received the crumbles in a PR package from Daily Harvest and went to the ER with severe stomach cramps about a day after consuming them.

“My niece, who is in her 20s and into TikTok, said, ‘Auntie, you need to watch this TikTok,’” Heartsong said. “Every single one of the symptoms were mine. I am watching this video and my heart sinks. I thought ‘Oh my God, it’s Daily Harvest.’”

Heartsong ate the crumbles over a period of two weeks in June, until she started feeling ill; her body was shaking, her teeth were chattering and she developed a low fever. Her COVID-19 tests were negative, so she assumed she had contracted a bug from her three grandkids. Her symptoms worsened; her urine turned brown and her son-in-law, after a brief visit, called her daughter to say Heartsong was yellow. Heartsong had been too sick to notice her skin color change, she said.

She went to the Providence Regional Medical Center emergency department and was admitted with what the doctors told her was abnormal liver function. She underwent scores of tests; ultrasounds showed a normal gallbladder and bile ducts, according to medical records reviewed by The Seattle Times. Her paperwork listed “painless jaundice” as the first finding, though doctors didn’t note how or when her liver function became abnormal.

Her liver numbers returned to a normal range after two months, but she had severe fatigue for three months, forcing her to cancel a bike trip in Napa, California. She told clients at her commercial property and accounting business she was dealing with an unknown illness.

Paulsen, the Bellevue Daily Harvest customer, said she continues to suffer from gastrointestinal pain related to her gall bladder removal surgery. She can’t eat spicy or high-fat foods, or consume carbonated or caffeinated beverages. She’s lost 30 pounds. Last month, she was hospitalized again with severe stomach cramping.

“My body was destroyed,” Paulsen said.

Heartsong initially subscribed to Daily Harvest for its convenience and to learn how to cook healthy, vegetarian meals. She canceled her subscription. Thanksgiving was the first time in months she ate some of her favorite foods again. But she’s still cautious.

“I’m a much safer eater now,” she said. “That’s for sure.”

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