The family of a man that choked on a free sample of meat in a San Francisco Costco retail store, because the single piece was allegedly cut far too large, has filed a wrongful death lawsuit, as reported by the Courthouse News Service.
A federal judge recently denied Costco's motion for a summary judgment.
The family has named the company in California's Northern District and Warehouse Demo Services (WDS) as responsible for R.J.H.'s death.
According to court documents D.G., the WDS employee serving the tri-tip steak samples that day in 2010, said that the R.J.H. went up to D.G. and "… he did not speak, but pointed to his neck and chest, leading her to believe that he was either choking or having a heart attack."
One other shopper, an off-duty firefighter, tried to help R.J.H. by dislodging the meat using the Heimlich maneuver. He was unsuccessful.
According to D.G.'s testimony in the summary, "…she had not seen (R.J.H.) before he approached her, and estimated that hundreds of tri-tip samples had been served that day. Bystander (P.P.), however, testified that she heard (R.J.H.) screaming that (R.J.H.) was choking on a piece of steak."
Testimony from an emergency room physician, for the family, said that it was his opinion that the Heimlich maneuver could have saved R.J.H.'s life – if the piece he was given to sample had been cut smaller.
Defendants Costco and WDS claimed, in asking for the summary judgment, that they did not owe a duty to exercise reasonable care in serving the free meat samples to Costco customers.
However, the court rejected the argument to dismiss the case. Instead, the court expects that a jury could rely on what the industry standard deems to be the correct bite-sized sample.
District Judge Claudia Wilken rejected the order, 12-pages in total – which had argued that there was no proof that what R.J.H. choked on beef that D.G. had served him. The judge found that the expert testimony and evidence the family had presented would be enough for a jury to find in their favor.
One of the witnesses for the family had testified that "the piece of tri-tip that he had sampled was larger than usual and that the meat extracted from (R.J.H.) was approximately one inch by three inches."
Judge Wilken wrote, "This is evidence that the meat that Harris choked on was larger than the sample size that WDS employees were instructed to prepare."
Costco and WDS further argued that R.J.H. should have been responsible for chewing his own meat sufficiently before swallowing, and therefore was responsible for his own death. The judge, again, ruled in the family's favor stating that companies cannot use contributory negligence as a complete defense.
Wrongful death scenarios, such as this one, often come without warning. Contact a personal injury lawyer to file your lawsuit and begin to recover your damages. A monetary award is often the outcome.