Families of listeria outbreak victims sue Frugals for negligence

TACOMA, Wash. - A local burger joint is under fire after six people had to be hospitalized for listeria. Three of those victims have died, according to Washington Department of Health officials.

A second family has filed a lawsuit against Frugals after a woman who had successfully weathered cancer treatment nearly died after eating a milkshake.

She joins a Thurston County widow who is pushing to hold the fast food joint accountable for the loss of her husband.

The families are represented by William "Bill" Marler, who is no stranger to food-borne illness cases. He’s the same man who represented families in the Jack-in-the-box E. Coli outbreak in the 90s. He says he wants to find out why this happened to prevent it from happening to more families.  

"What if anything the company did about it," Marler said. "On a personal level, my hope is that this was just a horrible mistake that had terrible, terrible, terrible consequences."

Frugals has been around for more than 30 years. Their first location opened in Port Angeles in 1988. Now a big "sorry no shakes" sign welcomes drive-thru customers at their Pacific Ave. location in Tacoma.

"All six people had a common denominator that that listeria came was same place, it was that fingerprint, just like in a criminal case," Marler said.

Department of Health investigators traced the specific strain of Listeria in Frugals’ ice cream machines, which they say were not cleaned correctly.

"We've got three dead people in the state of Washington and three people who nearly died, because they ate a milkshake," Marler said.

Health officials say the infections happened between Feb. 27 and July 22., but listeria can sicken people up to 70 days after they've been exposed. 

"Unfortunately, they didn't stop selling shakes until August 8th, so we've got unfortunately some time to wait to see if others get sick," Marler said.

The families are suing Frugals for negligence and wrongful death among other allegations after their loved ones fell ill. 

The attorney says Charles Roberson had at least one milkshake from Frugals between March and April. A lawsuit filed Monday says Roberson was hospitalized in early May. He had surgery and was transferred to a rehab center where his health allegedly deteriorated. 

Documents say he died of Listeria complications leaving behind his wife Linda of 45 years. 

"She's lost the love of her life," Marler said. "I think it's pretty tough, and I think most of the public can understand that and how sad it is that this company didn't do a better job of simply cleaning their milkshake machines."

The alleged lack of cleanliness made Chong Garbino so sick her family had to call 911 for help six days after having a milkshake on June 6, according to the suit filed Friday.

"Ms. Garbino, she's 79 years old, successfully weathered cancer treatment, and you know, her daughters were getting her a treat a vanilla shake, and it nearly killed her," Marler said.

He says her age and compromised immune system from chemo and radiation is making it hard for her to recover. Her daughters now care for her around the clock as the bacteria has taken a toll on her. 

"I certainly hope the best for her," Marler said.

The family owned business previously said, "We are heartbroken and deeply regret any harm our actions could have caused. Frugals has and will continue to fully cooperate with and support this ongoing investigation."

They said out of abundance of caution, they stopped milkshake sales at all their locations to test and clean all of their machines.

Health officials say most people who eat contaminated food will not get seriously sick, but pregnant women, those 65 or older and those with weakened immune systems should call their doctor if they had a milkshake between May 29 and Aug. 7.

Listeria symptoms include:

• Fever
• Muscle aches
• Tiredness

DOH says people who are not pregnant may also get a headache, stiff neck, confusion, loss of balance, or seizures.

Listeria can cause pregnancy loss or premature birth. It can also cause serious illness or death in newborns.

"I've gotten a lot of phone calls from frightened pregnant women, is that Listeria is one of the leading causes of miscarriages in the United States." Marler said. "Women who have had milkshakes at Frugals over the last several weeks worry, and it's understandable."  

FOX 13 reached out to Frugals in light of the new lawsuit filed and are waiting to hear back.

This is a developing story.

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