Daily Harvest sees first lawsuit in lentil crumbles scare

A message about food is projected on an archway attached to a light-colored brick building

June 27, 2022 6:35 PM PT

An Oklahoma woman filed a product liability and personal injury lawsuit Monday against Daily Harvest after nearly 500 people were allegedly sickened by the company’s French lentil and leek crumbles, a menu item launched in late April.

Daily Harvest — which sells vegan-friendly smoothies, bowls, flatbreads and other foods that are shipped directly to consumers — appears to have been caught flat-footed amid reports from people who say they have suffered serious liver and gallbladder problems after consuming the lentil crumbles.

For the record:

10:10 a.m. June 28, 2022An earlier version of this article said that Daily Harvest first mentioned recall information on social media, then sent emails to customers. The June 17 email came first. Also, the company sent a news release indicating it was working with the FDA on June 23, not June 24.

Some customers have raised concerns about possible cross-contamination, though the company said Monday that the problems are limited to the lentil crumbles, which it pulled from the market. Others are unhappy with how the company chose to communicate and with the language it chose.

In the meantime, Daily Harvest said it’s working nonstop to figure out the source of the foodborne illness, which remains a mystery after 10 days working in cooperation with the U.S. Food and Drug Administration.

Carol Ready, the plaintiff in the new lawsuit, said Monday in an interview, “I ate the crumbles twice, unfortunately. Both times, within 48 hours, I was in the emergency room.”

Ready’s problems went beyond the gastrointestinal distress that sent her to the ER, though. Finding nothing wrong with her except for extremely high levels of liver enzymes, her doctors did a hepatobiliary iminodiacetic acid (HIDA) scan, which uses a radioactive dye of sorts to diagnose problems with the liver, bile duct and gallbladder. They found a problem in the last one.

Ready had her gallbladder removed June 22, just days after a friend directed her to a Reddit forum and posts on Twitter talking about the voluntary Daily Harvest product recall.

“It still didn’t change anything for me,” the 29-year-old Tulsa woman said. “The dysfunction was there. The damage was done.”

“We have been retained by almost 75 people, most with stories nearly identical to Ms. Ready,” attorney William D. Marler told The Times on Monday. His firm, Marler Clark, is handling Ready’s case. “We have had all clients contact the FDA directly to share their symptoms. We are in the process of testing nearly two dozen leftover products to determine what ingredients in these products that would cause such severe symptoms.”

Daily Harvest, meanwhile, said in a statement Monday, “Everyone who has been affected deserves an answer, and we are committed to making this right.”

Approximately 28,000 packages of the French lentil and leek crumbles were produced between April 28 and June 17, according to the company. They were primarily shipped out to subscribers who ordered them, with a smaller number distributed via a retail location in Chicago and a May pop-up store in Los Angeles.

Since the late-April launch, “consumption of defendant’s products has caused an array of serious health complications, from gastrointestinal illness to liver and gallbladder dysfunction,” said Marler, who has been litigating cases involving foodborne illnesses since 1993.

Daily Harvest, which markets itself with a promise of sustainably sourced fruits and veggies sent voluntary-recall emails to customers on June 17 and June 19 that mentioned “gastrointestinal discomfort” but said nothing about liver or gallbladder problems specifically. It also posted information about its recall on social media. The first email also included a reminder that the crumbles needed to be cooked.

On Thursday, the New York-based company sent a news release stating it had received 470 reports of illness linked to the crumbles and said it was working with the FDA to figure out the problem. On Monday, Daily Harvest went into more detail while also noting in a statement that it does not comment on “pending or potential litigation.”

“We have reached out multiple times directly to consumers who received the product, instructing them to dispose of it and not eat it,” the statement continued.

“In parallel, we launched an investigation to identify the root cause, working closely with the FDA, multiple independent labs, and a group of experts that includes microbiologists, toxin and pathogen experts as well as allergists. All pathogen and toxicology results have come back negative so far, but we’re continuing to do extensive testing so we can get to the bottom of this.”

Daily Harvest appeals to customers who are interested in healthy, whole foods; people like Amber Orley, 42, who lives in a suburb of Cleveland and is also in touch with the law firm, Marler Clark. She began ordering from the company after being diagnosed with a number of food allergies and said the meal service saved her time and kept her safely fed while she prepared regular meals for her husband and two sons.

“I trusted my health to them,” she said.

After keeping the lentil crumbles in her freezer for a month while she made her way through a bag of Daily Harvest’s companion product, walnut and thyme crumbles, Orley said she cooked some in early June and put them in tacos, as the company had suggested.

“I probably cooked them longer than what was suggested,” Orley said, because she had added sweet potatoes that needed more cooking time. The tacos were, she said, “delicious.”

A hand holds an opened plastic package of an organic food

But she paid for it over the next several days, with major abdominal pain and a 102-degree fever. Finally Orley went to see her doctor, and lab work revealed blood in her urine along with high levels of bilirubin, a substance that passes through the liver.

The next day, after receiving lab results showing extremely high liver enzymes, Orley said, her doctor told her to go to an emergency room immediately. Extensive testing in the ER — including a sonogram, a CT scan, a hepatitis check and more bloodwork — showed nothing wrong except the liver enzymes, Orley said, so she was sent home with an order to follow up with her own physician.

On June 19, Orley got an email from Daily Harvest telling her to toss out the lentil and leek crumbles, but she noted that it contained only a general reference to gastrointestinal symptoms. She filled out a survey at the company’s request and said she included her test results from the emergency room in hopes that they might cover her medical bills.

Finally, last week, a friend who works in healthcare directed Orley’s attention to the stories that were coming out with multiple people alleging symptoms exactly like hers. “My jaw hit the floor,” she said. Everyone was relating similar symptoms that went past what she considers generic gastrointestinal distress.

“Had I had this information sooner,” she wondered out loud, “would my treatment have been different? Could I have provided that information to my doctors?” She also noted that she had only one serving of the crumbles, and her digestive system is still healing, weeks later. “My body is not OK.”

A third woman, Sarah Schacht of Seattle, noted wryly in an interview Monday that she is likely Marler Clark’s only repeat customer, having been affected by Jack in the Box’s E. coli outbreak in the early 1990s, when she was a young teen.

“The irony of me getting caught up in the Daily Harvest situation does not escape me,” the 42-year-old said. Schacht, a government-innovation consultant, also considers herself a “citizen food-safety advocate” who worked to get restaurant inspection ratings posted in Seattle. “The only oddity is that I’m talking about my experience, and I know what happened to me.”

Schacht has been participating in a long-COVID study as part of a control group and therefore was getting regular, extensive blood tests. Then, for about a month and a half, her liver enzyme levels were coming back off-the-charts high. That corresponded to her having felt sick on and off over the same period, she said.

“Daily Harvest was, like, 75% of the food I was eating for months,” Schacht said. She said she realized she’d been eating “something or somethings for an extended period of time” that was making her ill. She found others online complaining of the same symptoms, which included massive stomach cramps and freezing-cold hands and feet but no fever.

Schacht also went to the emergency room because of her liver labs and had an experience similar to the other women: CT scan, more labs, no answers. She said her doctors are now trying to figure out what kind of contamination might be involved that would cause the “odd cluster of symptoms” being discussed among those who have been affected.

“We are working 24 hours a day, seven days a week on this. You deserve answers,” Daily Harvest Chief Executive Rachel Drori said Monday in a statement posted on social media and on the company’s website. She said that after 10 days of working with the FDA, the company had not yet found the cause of the problem.

“I also want to reassure you that this issue is limited to [the crumbles] and does not impact any of our other 100+ menu items,” she said. “I recognize this is so frustrating. I am incredibly frustrated.”

She also described steps that are being taken, including an investigation of the manufacturing facilities used by the company, as well as its food and supply chain.

“We are still eating and feeding our families all of our products,” Drori said, “and they are safe for you to do the same.”

Melissa Mizwa of Chicago said she had no positive or negative feelings about Daily Harvest when she signed up for the service in May.

Rather, she was drawn to the discount offered on her first order.

That order had the lentil and leek crumbles, the 42-year-old said Monday. She too went through the hoops of pain, discomfort, nausea, urgent care and ultimately an ER visit. She’s past the itchiness and constant nausea and said her hepatologist is encouraged by her “slow, gradual improvement.”

But she’s very disappointed now by Daily Harvest’s response. A little insulted too, she said. “They’re so far behind. They led with, ‘You’re doing it wrong,’” she said, referring to the initial reminder to cook the crumbles.

She also thinks Daily Harvest was “downplaying and hiding” the severity of the reports and could have looked around at other recent recalls to see how to handle one properly, instead of misleading those who are affected.

“I’m thankful for social media in this instance,” Mizwa said, “because otherwise how would we have found each other?”