August 25, 2005


Pedicure lawsuits filed

Victims go after salons, manufacturers

By Kymberli W. Brady
Staff Writer

More than 75 people have now filed suit over infections they contracted after receiving pedicures at salons in San Jose, Los Gatos, Saratoga, Santa Clara, and Mountain View.

Painful lesions caused by mycobacterium fortuitum, found in poorly sanitized and disinfected whirlpool footspas, lead to painful sores, costly medical treatments, and permanent scaring, both physically and emotionally.

The complaints allege the salon owners failed to properly disinfect the whirlpool spas and other instruments in the salons as required by California’s salon-specific health and safety regulations. They also charge the owners with a history of citations for violating the same regulations. Additionally, chair makers are accused of improperly designing the chairs, thereby making them difficult to properly clean and disinfect and also for failing to adequately instruct users how to clean the chairs or to warn of the dangers of failure to clean.

They represent more than 50 percent of the Bay Area victims now fighting various species of mycobacterium fortuitum, organisms that are linked to leprosy and tuberculosis, but settle mostly in the hair follicles, causing painful, oozing boil-like lesions to develop on the lower legs. In some cases, the lesions have spread to other parts of the body.

In all cases, treatment requires months of costly antibiotics that yield side effects of their own and leave behind dark permanent scars. The most severe have resulted in hospitalization for long-term intravenous treatments or surgical removal of the lesions and surrounding skin.

In Santa Clara County, health officials have logged 136 complaints of pedicure-linked infections related to 27 salons. In the 2000 Watsonville outbreak, a single salon, Fancy Nails, was linked to more than 100 infections.

“I hope it serves as a red flag,” said Cherri Brown, 54, one of the plaintiffs in the Fancy Nails settlement. “I hope that making the public aware of our infections would help inform and educate others.” Brown, a San Jose sales manager whose illness left more than 70 leg scars, did not disclose the amount she received from the settlement.

San Jose personal injury attorneys Rob Bohn and Robert Oushalem represent the lion’s share of the claimants. In addition to seeking damages for the permanent scarring of their client’s legs and bodies, both attorneys will also ask for court-ordered mandates that will require salons to abide by California health and safety regulations and provide acceptable product training, instructions and warnings.

At least nine salons have been named in the suits, including Silver Nails II, Nails National, Kathy Nails and Blossom Nails in San Jose, True Nails in Los Gatos, Jennie’s Nails in Saratoga, Manicure Beach in Santa Clara and Top Hair and Nails in Mountain View. More salons are currently being investigated.

In one case, discovery revealed through staff member testimonies that one salon owner repeatedly instructed staff members at Nails National to use 409, a household cleaner instead of EPA-approved disinfectants.

Oushalem filed the first San Jose lawsuit for two sisters, ages 12 and 15, after their legs broke out in painful boils following pedicures at Silver Nails II last August. The owner’s attorney last month denied allegations that inadequate footbath sanitation caused the infections.

This problem is certainly not unique to the Bay Area and very closely resembles in numbers the Watsonville outbreak of 2000, where 73 out of 110 victims took their cases to court. Bohn represented 52 of those patrons in the $3 million settlement.

Similar outbreaks have been reported in Arizona, San Diego, Orange County, Sacramento, Texas, Florida and Washington D.C.

Oushalem hopes that’s where the similarities end.

“I hope it doesn’t take four years,” he says.

Bohn expects the litigation concerning the Santa Clara County cases to proceed faster. “Because of Watsonville, all of these salon owners and chair manufacturers are well aware of the problem.”

Due to the large number of claimants, the suits against Nails National and Silver Nails II will be consolidated by the court. CN Spa Manufacture of Canada and Maryland’s Luxor International, Inc., a subsidiary of Luxor Holdings, Inc., have also been served and are expected to appear in court later this month, having manufactured many of the whirlpool footspa chairs in question. The stores that sold the chairs, Tully Beauty Supply and Little Saigon Beauty Supply have been named as well and are also expected to be present.

Oushalem says the consolidation was ordered to streamline discovery. And unlike a class action suit, each claimant will still have their own cause of action.

“There are so many attorneys involved, this just makes it easier,” he says. “This is merely to keep control over how the cases are progressing.”

“I hope to get a quicker as well as better settlement than Watsonville,” said Oushalem. “Of course we’ll have issues with the insurance companies, but we will prevail in obtaining the best settlement for our clients. Some of the companies are cooperating.”

While Oushalem admits that most of the companies are cooperating, he has his hands on a wild one with Luxor International, Inc., who manufactured chairs for Silver Nails II.

“In my 25 years of practice, I’ve never seen a company engage in such dilatory tactics in thwarting the discovery process and preventing the plaintiff from getting answers,” he says. “They’re playing this shell game—changing the name of their company and saying they’re going out of business. They refuse to comply with court orders or cooperate with any discovery whatsoever. And they’re a leading manufacturer of whirlpool spa chairs, yet they’re not taking responsibility for their own actions.”

The days of the cheap pedicure are over
Now working on his second outbreak case, Bohn doesn’t see the problem getting better without major changes in the salon industry.

“It’s all about the money,” he says. “On the one hand, there are high-volume salons rushing people through while at the same time trying to cut costs. They can’t afford the time or money to do the proper cleaning. On the other hand are companies supplying expensive, yet under-researched and dangerous, products without adequate warnings or instructions for the users of the chairs. It’s no surprise people are getting infected.”

“The days of the cheap pedicure are over,” adds Oushalem, who warns that given the sheer numbers—materials, supplies, implements, disinfectant, overhead, and salaries—any pedicure less than $45 may not be safe, especially if salons don’t comply with Section 980.1 of the California State Board of Barbering and Cosmetology, which dictates the regulations and proper protocol required for disinfecting and sanitizing the spas.

“The code says that when they’re done with one client, it takes at least 10 minutes to properly satisfy the disinfecting requirements for the next customer. In order to compensate for that downtime, they have to charge $45 in order to maintain a safe chair.”

Meanwhile, legislation is moving forward
In Sacramento, legislators are expected to pass Assembly Bill 1263. Introduced by Assemblyman, Leland Yee of San Francisco, it is designed to improve salon cleaning practices by clarifying cleaning disinfection procedures, while mandating the prominent posting of consumer safety notices, citations, fines, penalties and actions levied against the salons and their licensees.

Last month, 19-year-old Brittany Welby traveled to the state capitol, where she and entertainer Paula Abdul testified during a Senate hearing on the importance of AB1263—testimony that was hard to ignore once she bared her legs, riddled with over one hundred scars, leaving many on the panel at a loss for words. If the bill passes, she is expected to be present when Governor Schwarzenegger signs it into law in September.

Oushalem says of his client. “And that was so important. We need to give the state the ability to shut them down if they violate that code. It’s an insidious act that severely affects these women and scars them for life. These salon owners have to understand that they must comply with that code section in order to protect their patrons from infection.”

The Public Health Department has been working with the California Department of Consumer Affairs Barbering & Cosmetology on the current outbreak, offering consumer tips on whirlpool foot spas. For more information, visit www.barbercosmo.ca.gov or call (800) 952-5210. Complaints can be filed online or by calling the Santa Clara County Health Department at (408) 885-3980. Those who do not have a physician or have additional questions can call the Public Health Information Line at (408) 885-3980. To report a problem with a salon, contact the state Department of Consumer Affairs at (800) 952-5210.

For more information on legal claims or concerns, contact Rob Bohn at (408) 279-4222 or rob@bohnlaw.com or Robert Oushalem (408) 297-0700.