No.

_______________

Vince Rodriguez and Debbie Rodriguez, In the District Court of
Individually and on behalf of
Ashton Rodriguez, a minor

v. Harris County, Texas

Iguana Joes ATA, Inc. ____ Judicial District



Plaintiffs Original Petition

Plaintiffs Vince Rodriguez and Debbie Rodriguez, Individually and on behalf of Ashton
Rodriguez, minor (collectively Plaintiffs) file this Original Petition and show.
I. Discovery Control Plan
1. Plaintiffs intend to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.
II. Parties
2. Plaintiffs are residents of Houston, Harris County, Texas.
3. Defendant Iguana J oes ATA, Inc. (Iguana J oes or Defendant) is a Texas
corporation with its headquarters and principal place of business in Humble, Harris County,
Texas. Iguana J oes conducts business in Texas by selling and distributing its food products to
consumers throughout the state. Iguana J oes may be served through its agent, Victor P. Ybarra,
at 18319 West Lake Houston Parkway, Humble, Texas 77346.
III. Jurisdiction
4. This Court has jurisdiction over this matter because the damages in controversy
are within the jurisdictional limits of this Court.

9/11/2014 4:46:12 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2466162
By: Sharon Carlton
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2014-52045 / Court: 152
2

IV. Venue
5. Venue is proper in Harris County, Texas pursuant to Sections 15.002 (a)(1) and
15.002 (a)(3) of the Texas Civil Practice and Remedies Code because Iguana J oes principal
office (its headquarters) and place of business is located in Harris County, Texas, and a
substantial part of the events or omissions giving rise to Plaintiffs claims occurred in Harris
County, Texas.
V. Facts
The Salmonella Bacterium
6. Salmonella is an enteric bacterium, which means that it lives in the intestinal
tracts of humans and other warm-blooded animals. Salmonella bacteria are typically transmitted
to humans by contaminated food or water. Such foods usually look and smell normal, meaning
that a consumer has no warning of the fact of contamination.
7. After being ingested, Salmonella bacteria travel to the lumen of the small
intestines, then penetrate the epithelium, multiply, and enter the blood. This infection process
also referred to as the incubation period usually takes 6 to 72 hours for the onset of symptoms.
As few as 15-20 cells of Salmonella bacteria can cause infection.
8. The acute symptoms of Salmonella gastroenteritis (or Salmonellosis) include
nausea, vomiting, diarrhea, fever, abdominal cramping and/or stomach pain, dysuria, muscle
pain, fatigue, and dehydration.
9. Medical treatment provided to an infected person usually involves treatment of
the symptoms, such as prescribing anti-nausea or anti-diarrhea medications. Some physicians
prescribe antibiotics. More severe cases may require intravenous fluids for treatment of
dehydration, usually in an emergency room or urgent-care setting. The elderly, infants, and
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those with impaired immune systems are more likely to experience a severe illness or death from
ingesting Salmonella bacteria.
Plaintiff Ashton Rodriguez consumes contaminated food at Iguana Joes
10. On J une 15, 2013, Plaintiffs met a few friends at Iguana J oes after a baseball
tournament. Plaintiffs Vince and Debbie Rodriguez had eaten earlier in the evening; therefore
they did not eat at the restaurant. Plaintiff Ashton Rodriguez ate chips and salsa.
11. At approximately 8:00 p.m. on J une 18
th
, Plaintiff Ashton Rodriguez began
showing his first signs of food poisoning, including diarrhea and vomiting. His symptoms
continued unabated into the next day, with ongoing diarrhea and concurrent fever. By J une 20
th

his parents had no choice but to take him to Kingwood Medical Hospital where medical staff
moved Ashton directly to a room and initiated an IV. Due to the severity of his condition, the
attending physician admitted Ashton to the hospitals pediatric unit for gastroenteritis and
dehydration. The attending physician treated Ashton with Zofran and ordered a stool culture.
For the next 7 days, Ashton experienced multiple episodes of diarrhea which required him to go
to the bathroom every 30 minutes to an hour with concurrent fever and periodic vomiting spells.
12. Plaintiff Ashton Rodriguezs stool culture came back positive for Salmonella and
his physicians reported the findings to Harris County Public Health and Environmental Services
(HCPHES). The HCPHES Department of Epidemiology contacted Ashtons parents to conduct
an interview, having performed an analysis of his stool culture that further demonstrated that
Ashton was sickened by the outbreak strain of Salmonella Braenderup that was a genetic match
to the stools of several other victims who had eaten at Iguana J oes.
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13. The doctors finally released Plaintiff Ashton Rodriguez from the hospital on J uly
22
nd
with prescriptions and instructions to take Acetaminophen, Lactobacillus, Mometasone
Furoate, and Ondansetron.
14. Plaintiff Ashton Rodriguez lost 10 pounds during the worst stage of his illness.
He was unable to eat significant amounts of food for three months.
15. As a result of Ashtons illness, Vince and Debbie Rodriguez were forced to miss
time from work to care for their son, incurring lost wages.
Harris County Health Officials Repeatedly Warn Iguana Joes that the Restaurant Posed a
High Risk of Causing Foodborne Illness to its Customers
16. Iguana J oes had a history of non-compliance with safe, sanitary food preparation
practices. The Harris County Public Health and Environmental Services (HCPHES)
Environmental Public Health Division (EPHD) had recently given Iguana J oes management
personnel written notices that its restaurant posed an Extremely High Risk of causing foodborne
illness. The same Iguana J oes personnel that received these notices were employed at Iguana
J oes at all times pertinent to the claims herein.
17. Among these written warnings were Foodborne Illness Risk Assessments, issued
periodically by the EPHD. Approximately one year prior to the outbreak, on April 20, 2012, the
EPHD put Iguana J oes on notice that it posed an Extremely High Risk of causing food borne
illness. The EPHD assessed Iguana J oes with a Risk Score of 123 (a score that is - literally -
off the charts (anything above a score of 114 represents an Extremely High Risk of causing
foodborne illness). As a result, the EPHD placed Iguana J oes on the mandated schedule of 12
inspections per year and also ordered Iguana J oes to engage in remedial actions.
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18. The EPHD gave the notice to Sandra Walker, the person in charge (store
manager) at the time of the inspection. Ms. Walker remained a member of Iguana J oes senior
management at the time of the outbreak associated with the claims herein.
19. Unfortunately, the EPHDs notice to Iguana J oes failed to prompt significant
lasting change, as was evident on the eve of the outbreak.
20. During EPHD inspections on May 9, 13 and 31, 2013 - only weeks before the
outbreak that sickened Plaintiff - many of the critical observations within these inspection reports
were the same as those made during the previous year and the same as those found in the days
following the outbreak which sickened Plaintiff.
21. As a result of the May 9
th
, 13
th
, and 31
st
inspections, Iguana J oes received demerits
for critical violations including:
a. failure to properly handle food;
b. failure to properly provide for hand-washing;
c. failure to have a knowledgeable manager on duty; and
d. failure to ensure proper sanitation of surfaces and utensils.
22. On more than one instance, inspectors found that Iguana J oes failed to have a
certified food safety manager on duty. In another, the EPHD issued violations for use of damage
cutting boards that could not be cleaned and sanitized the inspection report noted that this was
a major risk factor identified by the CDC as contributing to foodborne illness outbreaks.
23. In light of these egregious violations, EPHD investigators were compelled to cite
Iguana J oes for repeat violations on critical procedures that included failures to enforce proper
hand-washing practices and failures in keeping equipment, surfaces, and utensils clean, sanitary,
and in good repair.
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24. On J une 5, 2013, only 10 days before the outbreak that sickened Plaintiff, Iguana
J oes received another EPHD Foodborne Illness Risk Assessment with a Risk Score of 98, which
indicated a High Risk of causing foodborne illness.
25. The EPHDs J une 5
th
Foodborne Illness Risk Assessment provides clear and
convincing evidence that Iguana J oes had actual notice that the restaurant posed a High Risk
of causing foodborne illness to its customers. Despite this knowledge, Iguana J oes and its
management maliciously failed to take actions to correct and eliminate the danger. Instead,
Iguana J oes continued to sell contaminated food that created an extraordinarily high danger to
its customers, including Plaintiff.
The Iguana Joes Fathers Day Salmonella Outbreak
26. Unsurprisingly, on J une 15
th
and 16
th
, the risks outlined in the EPHDs two most
recent Foodborne Illness Risk Assessments materialized. Dozens of patrons were sickened by
Salmonella food poisoning after eating at Iguana J oes. All of the victims (including Ashton)
had eaten at the restaurant on Fathers Day weekend (J une 15
th
or 16
th
), leading media outlets to
refer to the outbreak as the Iguana J oes Fathers Day Salmonella Outbreak.
27. On J une 21
st
, the EPHD opened an investigation following reports that at least 8
illnesses (three with confirmed bacterial infections) had been linked to eating at Iguana J oes.
During the initial investigation, EPHD inspector Marcus Kufeji noted that manager Sandra
Walker was aware of an additional 4 individuals (not on the original EPHD list of eight) who
reported illnesses after eating at Iguana J oes on J une 15
th
.
28. Mr. Kufeji also noted that Iguana J oes was storing lettuce in a hand-washing sink, a
clear violation of policy and potential source of cross-contamination.
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29. The next day, J une 22
nd
, the EPHD conducted a full inspection of the restaurant.
Sandra Walker was again the management person in charge. Even with knowledge of the recent,
rampant Salmonella outbreak in the restaurant - both from customer complaints and from Mr.
Kufeji on J une 21
st
- Iguana J oes received an incredible twenty nine (29) demerits. The EPHD
noted critical violations, including the storage of raw hamburger in a trash can, for Iguana J oes
failures to follow safe food-handling procedures, including demerits in the following categories:
a. Improper cooling of food 5 demerits;
b. Failure to maintain proper hot hold temperatures 5 demerits;
c. Failure to properly reheat foods 5 demerits
d. Failure to maintain good hygienic practices 4 demerits;
e. Failure to prevent cross-contamination of raw foods 4 demerits;
f. Failure to have a properly certified manager on duty 3 demerits; and
g. Failure to maintain food contact surfaces of equipment and utensils
cleaned / sanitized / in good repair 3 demerits.
30. The EPHDs findings were so serious that the EPHD issued a CITATION (No. 42-
0000-005181) for Sandra Walker to appear in court for keeping Iguana J oes in an unsanitary
condition (per Texas Health and Safety code 341.013(a)). The EPHD issued a fine of $200.00
and court costs, with notations including poor hygiene practices, cross contamination, and
unclean food contact utensils (some knives had built-up food residue on them).
31. J ust two days later, EPHD officials conducted a follow-up inspection at Iguana
J oes. Shockingly, many of the earlier violations remained uncorrected. The EPHDs J une 24
th

report noted critical violations for:
a. Improper cooling to cooked/prepared food 10 demerits
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b. Failure to maintain cold hold temperatures 10 demerits
c. Improper hot hold temperatures 10 demerits
d. Failure to maintain hand-washing facilities with soap/towels 6 demerits
e. Improper manual/mechanical warewashing and sanitizing 6 demerits
f. Failure to maintain food contact surfaces of equipment and utensils in
cleaned/sanitized/good repair 6 demerits.
32. As a result of this disastrous inspection report, the EPHD issued Bonnie Ybarra, one
of Iguana J oes owners, a CITATION (No. 42-0000-005999) for keeping a business in an
unsanitary condition (per Texas Health and Safety code 341.013(a)). The EPHD fined Bonnie
Ybarra $200.00 and court costs, with notations including improper holding of potentially
hazardous foods (PHF), improper hot-holding of PHFs, improper warewashing and sanitization,
and unclean food contact surfaces.
33. In addition, during these two back-to-back inspections, EPHD inspectors were
forced to confiscate and destroy 62 pounds of food, determining that the food was adulterated
under Texas Health and Safety Code Chapter 341, not fit for human consumption, and posed a
threat to public safety.
34. Shortly thereafter, Harris County Public Health and Environmental Services
(HCPHES) announced that the restaurant would be closed on J une 25
th
due to continued critical
violations that put the publics health at risk. On J une 29
th
, inspectors oversaw the destruction
of 4374.3 pounds of food from Iguana J oes.
35. Health officials allowed the restaurant to reopen to the public only after Iguana
J oes took remedial actions and trained its staff in proper food handling and preparation.

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Iguana Joes Continues to Put Its Customers in Danger of Foodborne Illness
36. On April 8, 2014, Iguana J oes again received a Foodborne Illness Risk
Assessment Score of 130, even higher than the two scores that preceded the Salmonella
outbreak. Once again, the EPHD found that Iguana J oes posed an Extremely High Risk of
causing foodborne illness to its customers. The EPHD conducted the inspection in the presence
of Sandra Walker.
37. On May 8, 2014, Iguana J oes received yet another non-compliant inspection
report, being linked once again to a report of foodborne illness.
VI. Strict Liability - Manufacturing Defect

38. At all times, Iguana J oes was in the business of manufacturing, preparing,
serving, and selling food to its customers.
39. There was a manufacturing defect in the food at the time it left Iguana J oes
possession. The food was defective because it was contaminated with Salmonella. The presence
of Salmonella was a condition of the product that rendered it unreasonably dangerous.
40. The manufacturing defect was a proximate and producing cause of Plaintiffs
resulting injuries and damages.
41. Iguana J oes is therefore strictly liable for manufacturing defective and
unreasonably dangerous food and introducing it into the stream of commerce.
VII. Strict Liability - Marketing Defect

42. At all times, Iguana J oes was in the business of marketing and serving food.
43. There was a marketing defect in the food at the time it left Iguana J oes
possession. The food was defective because it was contaminated with Salmonella and Iguana
J oes failed to give adequate warnings of the products dangers that were known or by the
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application of reasonably developed human skill and foresight should have been known. Iguana
J oes also failed to give adequate instructions to avoid such dangers. Iguana J oes failure to
provide such warnings and instructions rendered the food unreasonably dangerous.
44. The marketing defect was a proximate and producing cause of Plaintiffs resulting
injuries and damages.
45. Iguana J oes is therefore strictly liable for marketing defective and unreasonably
dangerous food and serving that food to Plaintiff Ashton Rodriguez.
VIII. Negligence
46. Iguana J oes owed Plaintiff Ashton Rodriguez a duty of ordinary care in the
manufacture, preparation, testing, packaging, marketing, distribution, and selling of the food in
question. Further, Iguana J oes owed Plaintiff the duty of warning or instructing Plaintiff of
potentially hazardous or life-threatening conditions with respect to the food.
47. Iguana J oes breached its duties in one or more of the following ways:
a. Negligently manufacturing, preparing, and/or storing the food;

b. Failing to properly test the food before placing it into the stream of
commerce;

c. Failing to warn of the dangers associated with the food;

d. Failing to warn or instruct consumers of a known defect in the food;

e. Failing to timely disclose post-sale information concerning the dangers
associated with the food;

f. Failing to prevent human feces from coming into contact with the food;

g. Failing to properly implement hand washing requirements for food
handlers;

h. Failing to properly sanitize food contact surfaces;

i. Failing to properly sanitize dishes, utensils, and glasses;
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j. Failing to require employees to wear gloves and hairnets when coming
into contact with food and/or failing to enforce proper hand-washing by its
employees; and

k. Failing to properly supervise employees who were handling and preparing
food.

48. The foregoing negligent acts were a proximate and producing cause of Plaintiffs
injuries and damages.
49. All dangers associated with the contaminated food were reasonably foreseeable
and/or scientifically discoverable by Iguana J oes at the time Iguana J oes served the food to
Plaintiff Ashton Rodriguez.
IX. Implied Warranty of Merchantability

50. Iguana J oes is liable to Plaintiffs for breach of the implied warranty of
merchantability. TEX. BUS. & COM. CODE 2.314.
51. Plaintiffs are consumers.
52. Iguana J oes is a merchant who manufactures, prepares, serves, and sells food.
53. Because Iguana J oes is a merchant, the food at issue was sold with an implied
warranty of merchantability created under 2.314 of the Texas Business and Commerce Code.
54. Iguana J oes breached the implied warranty of merchantability because Iguana
J oes manufactured, prepared, served, and sold food that was not fit for its ordinary purpose and
lacked something necessary to be adequate. Specifically, the food contained Salmonella.
55. Iguana J oes did not disclaim the implied warranty of merchantability.
56. Iguana J oes breach of warranty was a proximate and producing cause of
Plaintiffs injuries and damages.

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X. Implied Warranty of Fitness for Particular Purpose

57. Iguana J oes is liable to Plaintiffs for breach of the implied warranty of fitness for
particular purpose. TEX. BUS. & COM. CODE 2.315.
58. Plaintiffs are consumers.
59. Iguana J oes is a merchant who manufactures, prepares, serves, and sells food.
60. Plaintiffs relied on Iguana J oes skill and judgment when representing that the
food at issue was fit for human consumption.
61. Iguana J oes breached the implied warranty of fitness for particular purpose
because Iguana J oes manufactured and sold food that was not fit for human consumption - i.e. it
contained Salmonella bacteria.
62. Iguana J oes did not disclaim this warranty.
63. Iguana J oes breach of warranty was a proximate and producing cause of
Plaintiffs injuries and damages.
XI. Texas Deceptive Trade Practices Act (DTPA)

64. Iguana J oes also violated the Texas Deceptive Trade Practices Act (DTPA).
65. Plaintiffs are consumers.
66. Iguana J oes is a merchant.
67. Section 17.50 (a)(2) of the Texas Business and Commerce Code provides that a
plaintiff may pursue a DTPA cause of action for breach of an implied warranty. Although the
DTPA does not create any warranties, warranties recognized under Texas law are actionable
under the DTPA.
68. Iguana J oes violated the DTPA by breaching the implied warranties of
merchantability and fitness for particular purpose.
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69. Iguana J oes did not disclaim either warranty.
70. Iguana J oes breach was a proximate and producing cause of Plaintiffs injuries
and damages.
XII. Damages
71. As a result of the acts and omissions outlined above, Plaintiffs have suffered, and
will continue to suffer in the future, damages within the jurisdictional limits of this Court.
72. For Plaintiffs manufacturing defect, marketing defect, and negligence claims,
Plaintiffs seek damages for past and future: pain and suffering, mental anguish, physical
impairment, physical disfigurement, lost earnings, medical, pharmaceutical and hospital
expenses, pre-judgment and post-judgment interest, and costs of court.
73. For Plaintiffs warranty and DTPA claims, Plaintiffs seek damages for past and
future: lost earnings, property damage, medical, pharmaceutical and hospital expenses, mental
anguish, attorneys fees, pre-judgment and post-judgment interest, and costs of court.
XIII. Gross Negligence and Exemplary (Punitive) Damages

74. Iguana J oes conduct as described above constituted acts and/or omissions which,
when viewed objectively from their standpoint at the time of the occurrence involved an extreme
degree of risk, considering the probability and magnitude of the potential harm to others. Iguana
J oes had actual, subjective awareness of the risk involved, but nevertheless proceeded with
conscious indifference to the rights, safety, and welfare of others. Accordingly, Iguana J oes
actions constitute gross negligence and Plaintiffs seek an award of exemplary (punitive)
damages.


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XIV. Treble Damages
75. Iguana J oes knowingly and intentionally breached the implied warranties of
merchantability and fitness for particular purpose and thus violated the DTPA. Plaintiffs are
therefore entitled to treble economic damages and mental anguish damages under the DTPA.
XV. Attorneys Fees
76. Because Iguana J oes violated the DTPA, Plaintiffs are entitled to recover
attorneys fees pursuant to 17.50(c) of the Texas Business and Commerce Code.
XVI. Jury Demand
77. Plaintiffs hereby request a trial by jury and tender the applicable fee.
XVII. Prayer
78. Plaintiffs pray that Iguana J oes be cited to appear and answer and that upon trial
of this matter, Plaintiffs be awarded the following:
a. Past and future actual and economic damages;
b. Exemplary damages;
c. Treble damages under the DTPA;
d. Attorneys fees and court costs;
e. Pre- and post-judgment interest at the highest rate allowed by law; and
f. All other relief to which Plaintiffs are entitled.

Respectfully submitted,
RON SIMON & ASSOCIATES

BY: /s/ Ron Simon
Ron Simon
State Bar No.: 00788421
Anthony Coveny
State Bar No.: 24059616
800 Gessner Road, Suite 1240
Houston, Texas 77024
Telephone: (713) 335-4900
Facsimile: (713) 335-4949

ATTORNEYS FOR PLAINTIFFS
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