Facts

On Nov. 12, 2009, plaintiff Solayman Siraj went to Sherman Oaks Hospital emergency room complaining of abdominal pain. He was discharged the same day, and then returned on Nov. 14, with complaints of serious abdominal pain. The emergency room doctor noted that Plaintiff had "free air" in his abdominal cavity, which was indicative of having a perforation in his gastrointestinal tract. Dr. Del Junco performed an eight-inch incision in Plaintiff's abdomen and performed a visual inspection of Plaintiff's intestines. During this surgical procedure, Dr. Del Junco found that a 2.5-inch toothpick had punctured Plaintiff's duodenum, which was the cause of the free air. The toothpick was found to be fully intact with no visible bite marks on it. Approximately one year later, in December 2010, Plaintiff had a second surgery to repair a hernia near the original incision.

Plaintiff worked as a security guard in the shopping center where Solley's Deli, which is owned by Jerry's Famous Deli, is located.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed that he unknowingly swallowed the toothpick while eating a hamburger at Jerry's Famous Deli on Nov. 10, 2009. Plaintiff also claimed that he felt pain in his throat at some point while eating his hamburger that he believed was "tough meat."

DEFENDANT'S CONTENTIONS:
Defendant contended that it did not put toothpicks in his hamburgers and that no Jerry's employees placed a toothpick in Plaintiff's hamburger. Plaintiff did not eat every meal at Jerry's. Plaintiff was often seen by Jerry's employees with a toothpick in his mouth. The type of toothpick that was found in Plaintiff was different than the type of toothpicks that it used in some of its sandwiches.

Plaintiff complained of throat pain, stabbing neck pain and a "foreign body sensation" in his throat in the weeks leading up to Plaintiff's meal on Nov. 10. There are documented medical case studies that have noted that toothpicks can stay present inside a person's gastrointestinal tract for six months and longer; therefore, Plaintiff was speculating that his hamburger had a toothpick in it.

Defendant claimed that Plaintiff did not complain to anyone at any time that he had throat pain while eating the hamburger until after the lawsuit was filed. Also there are documented medical findings stating that 88 percent of people who swallow toothpicks do so unknowingly.

Specials in Evidence

in excess of $100,000

Damages

Plaintiff asked for a $500,000 award during closing argument.

Result

Unanimous defense verdict.

Other Information

FILING DATE: June 30, 2011.

Deliberation

half hour

Poll

12-0 (defense)

Length

three days