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Restaurant shouldn’t have cleaned near food, lawsuit alleged






New York




U.S. District Court, Southern District

Injury Type(s):

other-abscess; other-infection; other-scar tissue; other-scar and/or disfigurement

Case Type:

Products Liability – Food, Strict Liability, Breach of Warranty; Hotel/Restaurant – Foreign Object in Food or Drink

Case Name:

Barry J. Brett and Leslie Brett v. 44th Street Restaurant LLC. d/b/a DB Bistro Moderne,
No. 15 CV 2921


October 27, 2016



Leslie Brett , 

Barry J. Brett (Male, 75 Years)

Plaintiff Attorney(s):

David Jaroslawicz;
Jaroslawicz & Jaros LLC;
New York,
Leslie Brett, Barry J. Brett ■ Elizabeth Eilender;
of counsel, Jaroslawicz & Jaros LLC;
New York,
Leslie Brett, Barry J. Brett

Plaintiff Expert(s):

Stephen Salzer; M.D.; Otolaryngology; Greenwich,
CT called by:
David Jaroslawicz, Elizabeth Eilender


44th Street Restaurant LLC

Defense Attorney(s):

Paul J. Bottari;
Wilson, Elser, Moskowitz, Edelman & Dicker LLP;
New York,
44th Street Restaurant LLC

Defendant Expert(s):

Steven Levine;
CT called by:
Paul J. Bottari


Admiral Indemnity Co.


On Feb. 28, 2015, plaintiff Barry Brett, 75, dined at a restaurant that was located at 55 W. 44th St., in Manhattan. He unknowingly swallowed a 2.5-centimeter-long metal bristle that was contained within chicken that he had been served. He sustained an injury of his throat. Brett sued the restaurant’s owner, 44th Street Restaurant LLC. Brett alleged that the accident was a result of negligent management of the premises, that his tainted meal constituted a violation of the Uniform Commercial Code’s warranty of merchantability, and that 44th Street Restaurant was strictly liable for the defective nature of the meal. Brett’s counsel claimed that the bristle had fallen off of a cleaning brush that had been used in the restaurant’s kitchen. They claimed that the brush was a shoddy utensil that had been purchased at a store that sold hardware, that the brush was not intended for use by restaurants, that the brush had been regularly used within the direct vicinity of an area in which the restaurant’s pans and pots were stored, and that the restaurant’s management had not regularly inspected the brush’s condition. Brett’s counsel also claimed that the restaurant’s management ignored a relevant warning that had been issued by the Centers for Disease Control and Prevention. The warning advised that wire-bristle brushes were dangerous because of the regularity with which their bristles dislodged. However, defense counsel contended that the warning was addressed to doctors. Defense counsel also claimed that the brush’s manufacturer had not provided a warning that disclosed the hazards that could have stemmed from the brush’s use. Defense counsel further claimed that the brush was not used near the area in which Brett’s meal was prepared. He estimated that 20 feet separated the areas.


After four days had passed, Brett presented to a doctor. He reported that his throat was painful. A radiological study revealed that the bristle was lodged in his esophagus. He had developed an abscess and an infection. He immediately underwent surgical removal of the object. He endured a hospitalization that lasted five days. Brett claimed that he suffers residual discomfort. He also claimed that he cannot easily swallow food. He retains permanent scars of his neck and throat. The parties stipulated that Brett’s medical expenses totaled $20,690.92. Brett sought recovery of that amount, $500,000 for past pain and suffering, an unspecified amount for future pain and suffering, and an unspecified amount for punitive damages. Brett’s wife, Leslie Brett, sought recovery of damages for loss of consortium. Defense counsel contended that Mr. Brett’s infection and residual effects were a result of Brett’s failure to promptly seek medical attention. The defense’s expert otolaryngologist opined that the infection would have been averted if Brett had been treated during the 24 hours that followed ingestion of the bristle.


The jury found that 44th Street Restaurant was liable for Brett’s ingestion of the bristle, that Brett’s meal was defective, and that the defective meal constituted a violation of the Uniform Commercial Code’s warranty of merchantability. It also found that Brett failed to mitigate his damages. The jury determined that damages totaled $1,511,000, but it also determined that Brett’s negligence merited a deduction of $200,000. After that deduction and the addition of the stipulated medical expenses, the plaintiffs’ recovery totaled $1,331,690.92.

Barry J. Brett: $450,000 Personal Injury: Past Pain And Suffering; $50,000 Personal Injury: future pain and suffering (10 years); $1,000,000 Commercial: Punitive Exemplary Damages; Leslie Brett: $10,000 Personal Injury: Past Loss Of Services; $1,000 Personal Injury: future loss of services (10 years)

Actual Award:


Trial Information:


Edgardo Ramos




$100,000 (total, for both plaintiffs)

Trial Length:


Trial Deliberations:


Jury Vote:


Jury Composition:

3 male/ 5 female

Editor’s Comment:

This report is based on information that was provided by plaintiffs’ and defense counsel. Additional information was gleaned from court documents.