Raw oysters are prized as a delicacy, but they also carry serious risks if mishandled. Harmful bacteria and viruses such as Vibrio, Pseudomonas, and norovirus may be present in an oyster before its harvest, or can be introduced at any point on its journey from harvest to the consumer. To reduce those dangers, strict federal and state regulations govern every step from harvest to the consumer.  These safeguards are not just red tape. They are critical public-health protections that, when ignored, can lead to devastating illnesses, amputations, or even death. 

An Example of What Can Go Wrong – And How to Pursue Recovery for Victims 

Schneider Wallace Cottrell Kim represented a man whose left arm was amputated at the shoulder after developing necrotizing fasciitis (flesh-easting infection) after eating raw oysters. 

SWCK was able to trace the oysters served to the victim using the shellfish tags at the restaurant.  The oysters had travelled from the harvester to two wholesalers and ultimately to a restaurant.  Along the way, as oysters in the Lot were split, SWCK was able to establish that shellfish tags were created that contained the wrong harvest date.  As a result, our client was served raw oysters that were harvested many days earlier than shown on the tags.  

After eating the mislabeled oysters, our client began experiencing severe symptoms: chills, fever, and gastrointestinal illness. The infection progressed rapidly and within days created a flesh-eating bacterial condition known as necrotizing fasciitis. Emergency surgery was required, including the amputation of an arm, to save the individual’s life. 

Medical testing confirmed the presence of harmful bacteria commonly associated with spoiled oysters. Experts concluded that the age and mishandling of the shellfish were a substantial factor in causing the illness. 

The case demonstrates two important points about recovery for illness and death from consumption of raw shellfish.  First, it shows how a single breakdown in food safety protocols can cascade into catastrophic harm. Second, it shows how a highly regulated system allows the breakdown to traced, discovered, and hold those responsible accountable.   

Food Safety and Oyster Handling:  Time and Temperature are Critical 

Raw oysters are eaten while they are alive.  But even as live oysters age after harvest, bacteria and viruses that may be harmless in small numbers begin to multiply.  Knowing how many days an oyster has been out of the water provides critical information to ensure that an oyster served to a consumer is not only still alive, but is fresh enough to lower the risks that bacteria have multiplied.  It is also critical that oysters be kept at low and steady temperatures while being transported from the water to the consumer, as lower temperatures slow the spread of any bacteria.  Even small exposure to room temperatures can result in an explosion of bacteria and cause illness. 

The journey of any single oyster can be traced from its oyster bed to the consumer by the use of a federally required Shellfish tag.  When oysters are harvested, a tag that lists the date of harvest, place of harvest, and lot number is attached to the sack or box of oysters.  The information on this tag accompanies the oysters as they travel from harvesters to wholesalers to retailers and restaurants.   The tags must be kept with the oysters at all times and should be available for inspection by any diner or customer who is purchasing oysters.  Importantly, the tags are required to be kept by a restaurant for 90 days after the sale to allow the origin of any illness to be traced. 

The tags provide critical information that can reduce the chances of illness.  Many restaurants will not serve oysters more than ten days after harvest (as bacteria multiplies exponentially the older an oyster is), and the tags allow restaurants and diners to know the age of an oyster.  Health alerts for certain harvest zones allow restaurants or wholesalers to recall oysters that come from particular waters where high levels of bacteria and viruses may have been detected. 

The safe handling of oysters is also reliant on proper handling.  Oysters should be immediately refrigerated after harvest and remain refrigerated as they are shipped from the harvester to wholesaler, and the wholesaler to a restaurant or retailer.  If oysters are left unrefrigerated for various amounts of time, bacteria could multiply in a relatively fresh oyster and cause illness. 

Liability to the Plaintiff For Oyster Injury 

Ultimately the restaurant, dealers and distributors, and harvesters can be made liable for an injury, due to failures to take due care and follow regulations.  In our recent multi-million dollar settlement, the lawsuit advanced several causes of action: 

• Negligence and Negligence Per Se – for failure to comply with health and safety codes and internal policies regarding oyster handling and accurate harvest date tagging. 

• Strict Products Liability – because the oysters were defective and unfit for safe consumption. 

• Breach of Implied Warranty – as the oysters were not of merchantable quality and failed to meet ordinary consumer expectations. 

• Loss of Consortium – brought on behalf of our client’s spouse, recognizing the profound impact of these injuries on their family life. 

The case underscores the critical importance of compliance with state, federal, and industry standards in the handling of perishable seafood products. 

The Cost of Illness and the Recovery after Eating Unsafe Oysters 

The patient or consumer cost of a food borne illness from oysters can vary dramatically. Norovirus most typically results in short-lived gastroenteritis and time off work; Vibrio parahaemolyticus ranges from outpatient to brief hospitalization; Vibrio vulnificus can require ICU care, multiple surgeries, even amputation, with long rehabilitation and permanent loss. All come with a risk of death, which cannot be eliminated. 

Typical costs a consumer may face after illness: 

• Acute medical care: ED visit, labs/cultures, IV fluids and antibiotics; for severe Vibrio cases, ICU days, vasopressors, surgical debridement, skin grafts, and amputation where necessary. CDC notes that many V. vulnificus patients require intensive care or limb amputation, and about 1 in 5 die, sometimes within 1–2 days. 

• Post-acute & rehab: inpatient rehab, outpatient wound care, prosthetics and prosthetic replacement cycles (if amputation), home health, and adaptive equipment. 

• Medication & follow-up: antibiotics, pain management, infectious-disease/surgery follow-ups. 

• Productivity losses: days to months off work for the patient (and sometimes caregivers). For norovirus, productivity loss is the largest cost. 

• Chronic sequelae: a subset develop post-infectious IBS (PI-IBS) and related functional GI symptoms that can last years, raising ongoing medical and productivity costs. Meta-analyses estimate a ~4–6× higher IBS risk after infectious gastroenteritis 

• Wrongful death–related losses: Loss of financial support where fatalities occur.

The CDC says that Norovirus costs the U.S. $2 billion per year in total. Vibrio infections can be devastating to the individual household, with one study putting the total loss including medical, and lost productivity at over $4 million per case. 

“What Costs or Damages Should I Document After an Oyster or Other Food Borne Illness”? 

If you have experienced a food borne illness, these are some of the costs you should document and keep track of for reimbursement: 

• Past/future medical expenses (acute through rehab/prosthetics) 

• Lost wages and loss of earning capacity 

• Non-economic damages (pain/suffering; loss of enjoyment) 

• Wrongful death damages where applicable 
• Household/attendant care and home modifications (for amputees and long-term disability) 

Food Illness Law Firm 

Schneider Wallace is known for our aggressive pursuit of injured consumers’ rights through complex litigation and class action lawsuits. To learn more about recovering damages for injuries caused by unsafe food, contact us for a free consultation with our trial lawyers. We practice before state and federal courts in jurisdictions throughout the United States, and have offices in California, Texas, and Washington D.C.