May 29, 2008

Pedicure infection victims settle lawsuits for nearly $6 million

By Kymberli W. Brady
Special to the Times

After nearly four years, 30 victims of the 2004 San Jose pedicure infection outbreak, represented by attorney Robert Oushalem will finally be able to put closure to a lengthy legal battle. The scars on their shins and lower legs however, will remain with them for life—permanent reminders of the bacteria they were infected with after getting pedicures at three south San Jose salons.

“You can’t laugh at this,” exclaimed “American Idol” host Paula Abdul as she pointed to Almaden teen Brittany Welby’s legs during a press conference in Sacramento in 2005. “This bill would have saved her.” Photos by Kymberli Brady

In November 2004, the Almaden Times broke a story detailing the account of an 11-year-old girl’s courageous battle with a skin infection she received after getting her first pedicure at Silver Nails II at 1080 Blossom Hill Road. The result was a sensitive account that chronicled the pain, embarrassment and courage of the young girl who bravely allowed us to publish graphic photos of the lesions on her legs. That photo, according to Oushalem, saved a lot of women who until seeing it, suffered with infections that even had their doctors mystified.

“That picture saved a lot of women” he said. “None of them knew what they had until they saw it. I really want to thank her parents for going public. They certainly didn’t want to make her the poster child for this and it took a lot of guts. That little girl went through hell. Kids made fun of her and she got ridiculed at school, but she was such a trooper.”

One week later, the story hit the national news, prompting county health officials and the State Board of Barbary and Cosmetology to order surprise inspections at 112 Santa Clara County nail salons. They later issued 731 violations, including 315 spread throughout 69 shops in San Jose, where the outbreak originated. The citations came with more than $70,000 in fines. By the time the dust settled, more than 130 complaints were filed, implicating 27 salons and putting 28 others on the radar screen. It also served to put cities in 11 other states on notice.

That story was just the beginning of several years of ongoing coverage, after graphic news photos elicited a flurry of calls from what would later amount to more than 100 victims of the largest mycobacterial outbreak since an incident in Watsonville, Calif. several years earlier.

On behalf of 30 victims, Oushalem sued Silver Nails II and two other south San Jose salons; Nails National at 5589 Snell Ave., and Kathy Nails at 5353 Almaden Expressway.

In the years that followed, Oushalem forged ahead with discovery and evidence gathering, spending more than $60,000 of his own money to prosecute the cases.

“Most of these girls couldn’t afford legal counsel,” he explained. “It was a contingency case and the only way they could be represented. If I lost, I lost. Winning was the only way I would get paid.”

Last March, extensive mediations on the Silver Nails II case ensued and by the end of the night, two of the three had settled, including the salon owner’s insurance company and Luxor, the manufacturer of the foot spas responsible for infecting all 30 of Oushalem’s clients.

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.

“They were the only real manufacturer who actively participated in the infection process as far as I’m concerned” Oushalem said. “They had a legal obligation to provide proper disinfectant procedures in their manual. The fact that they realized their instructions were so defective and did nothing about it… that really made them culpable. They said they didn’t have time…didn’t think of it...they were just too busy.”

In all, Oushalem recovered $5,840,000--$750,000 from Na-tional Nails, $1 million from Kathy Nails and $2 million from Silver Nails II. Nine of the victims he represented were infected at Silver Nails II, seven at Kathy Nails and 14 at Nails National.

“Was it enough?” Oushalem asked. “Did they all get compensated enough? Probably not, but none of these cases has ever gone to trial so no precedent has been set.”

When asked if anything good came out of this, Oushalem noted that it brought the issue into the public eye. Women especially seem more conscious, more aware of the hazards. It also put salon owners on notice to comply with disinfecting protocols and encouraged some to offer options to the traditional foot spas by using portable tubs or pipeless machines.

“If they don’t, they’re playing Russian roulette,” he added.

Today, National Nails is out of business, but it is worth noting that the owner has since purchased Silver Nails II and continues to use the same chairs. The salon is now named Luxor.

Kathy Nails remains in the same location, after removing the chairs from her salon. As for owner, Tammy Phan, Oushalem says to her credit, she has kept the salon clean.

“However, I’m not giving it my stamp of approval,” he admits. “If she hasn’t learned her lesson, then I’ll be her worst nightmare.”

For information about a particular salon, you can call the state Board of Barbering and Cosme-tology at (800) 952-5210 or visit the board's Web site at www.barbercosmo.ca.gov.