by Neil Swidey, Globe Staff
In a case reflecting the growing tensions around food allergies, the family of a 6-year-old Natick girl with a serious peanut allergy filed suit last week in Middlesex Superior Court against Panera and a group of Panera franchises in New England.
The suit alleges negligence stemming from an incident in which the grilled cheese the girl ordered came with a large dollop of peanut butter inside, leading to her hospitalization.
John Russo said that ever since his daughter was diagnosed with a peanut allergy around the age of 18 months, he and his wife, Elissa, have been vigilant about explaining her condition at restaurants, and never leaving the house without an epinephrine pen in case of accidental exposure.When Elissa used Panera’s online system Jan. 28 to order from the Natick location she noted in two places that the grilled cheese was for a child with a peanut allergy.
That, John Russo said, is what made the incident so shocking to them. The court complaint charges that the restaurant “engaged in unfair and deceptive business practices by adding peanut butter to the plaintiff’s grilled cheese sandwich knowing that [she] has a life-threatening peanut allergy.”
Russo said he had just arrived home from his job at Boston Scientific on that winter night when he and his wife realized in horror that the sandwich their older daughter, who was then 5, had bitten into contained lots of peanut butter.
As his wife rushed to call the pediatrician, the little girl began to panic, repeatedly asking, “Am I going to die?” Since the girl wasn’t showing serious symptoms, the doctor advised the parents to give her Benadryl.
Around 10:15 p.m. that night, Elissa texted John to say their daughter was about to be discharged. Suddenly, though, hives appeared all over her body, and hospital staff gave her a shot of epinephrine. She wasn’t discharged until early the next morning.
Russo said that during a phone call on the night of the incident, a manager at the Natick cafe apologized to him profusely and blamed the incident on a “language” issue.
Conceivably, an employee with limited English could have seen the notation of “peanut” as an instruction to add it to the grilled cheese rather than to keep it out of the sandwich.
But Russo said that explanation was “no excuse” and didn’t even strike him as plausible. Since the online order twice said “peanut allergy,” he asked, “Did they just see ‘peanut’ and not the ‘allergy’ part?”
His disbelief grew when he later looked up “allergy” in Spanish and Portuguese and learned how close the translation — alergia — is to the English word.
He said he asked the manager, “Is this somebody doing this on purpose? Because it’s two freakin’ tablespoons of peanut butter on this sandwich and it’s a grilled cheese,” but the manager reiterated that it was a language issue.
Despite their anger, Russo said he and his wife discussed the incident only with family and close friends. However, the lawsuit filed on behalf of their daughter, who is referred to only by her initials, alleges that less than one month after the Jan. 28 episode in Natick, a similar one happened to a different family at the Panera cafe in nearby Wayland.
That Wayland cafe is owned by the same franchise group, the Newton-based PR Restaurants.
According to the Russo court complaint, a peanut-allergic child ordered a grilled cheese at the Wayland Panera through the online ordering system and, after it arrived with peanut butter, she suffered an anaphylactic reaction requiring hospitalization.
Russo said he and his wife learned about this Wayland incident through a post that the mother made in a No Nuts Moms Facebook private forum. That post has since been taken down, and Russo and his attorneys said the mother involved in that incident told them she did not want to be party to the lawsuit. The Globe was not able to identify her.
Panera director of public affairs Jonathan Yohannan declined comment on the lawsuit.
Mitchell Roberts, operating partner of PR Restaurants, said in a brief phone interview Thursday that he was not aware of the lawsuit, which had been filed earlier that morning. And he expressed surprise when told of the charges in the complaint.
“They’re saying there were two different cases at two different restaurants of ours where someone ordered a grilled cheese sandwich and said they had a peanut allergy and they were served grilled cheese sandwiches with peanut butter in them?” Roberts asked. “That doesn’t sound feasible.”
But Mary Vargas of Maryland and Laurel Francoeur of Woburn, the lawyers for the Russo girl, said Roberts should have known the details of the complaint.
In March, Francoeur wrote letters describing both incidents and sent them via certified mail to Panera’s corporate office as well as to Roberts and his partner, David Peterman, who is listed as president of PR Management, the company that manages PR Restaurants’ outlets.
Russo said that although his family hadn’t posted in allergy forums, they noticed that some parents criticized the mother involved in the Wayland incident for allowing her allergic child to eat out, particularly at Panera.
After all, Panera includes this advisory on its website: “Please note that we cannot guarantee that any of our menu items are free of allergens because we use shared equipment and handle common allergens throughout our supply chain and bakery-cafe.”
However, attorney Vargas said, “This isn’t a cross contamination case,” involving accidental exposure to trace amounts of peanut dust. “There was a lot of peanut butter on this sandwich.”
Among the other allegations in the complaint are intentional or reckless infliction of emotional distress and assault and battery.
Russo said the incident changed his daughter, from a carefree girl who would grab the microphone at holiday parties and sing with abandon, to a kindergartner who no longer feels safe being separated from her parents.
The lawsuit comes at a time when advocates say there is growing evidence of “food allergy bullying” and other forms of pushback against accommodations for those with allergies.
In May, the owner of an Indian restaurant in England was sentenced to six years in prison, after a customer who had requested “no nuts” in his chicken tikka masala went into anaphylactic shock and died. The owner of that curry restaurant had replaced the almond powder in his recipes with a cheaper ground nut mix, without disclosing that to customers.
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