March 11, 2005

Second wave of nail salon lawsuits filed in San Jose

By Kymberli W. Brady
Staff Writer 

Nails National was served with a lawsuit on behalf of eight pedicure patrons who say they contracted painful mycobacterial skin infections at the San Jose salon. 

The lawsuit, filed Feb. 25 by attorney Robert Oush-alem is the second lawsuit of what promises to be many, after the hardy bacterium began showing up as unrelenting leg sores on a reported 143 victims from an estimated 33 Santa Clara County salons. 

Although Nails National owner Tamie Than is reported to have sold the business shortly after the outbreak in November, Oushalem says the new owner will not be affected. 

The claim seeks an award based on negligence, negligence per se, business and profession code violations, as well as punitive damages against the salon owner, the manufacturer of the spa chairs and the distributor. 

“Under the law, if someone distributes a product that’s defective and causes injury, they’re brought in as well,” Oushalem explains. “Their role is limited of course, but they will be exposed to damages. However, I won’t be going after the mall owners. They did nothing wrong and that would be frivolous.” 

He is expected to file a third claim next week for three clients against Kathy Nails and another against Silver Nails II on behalf of seven other clients. 

According to Oushalem, with the consolidation of municipal and superior court, California law now precludes petitioners from attaching a specific dollar amount to certain personal injury claims in an effort to deter frivolous, multi-million dollar lawsuits. 

“You have limitations,” he explains. “You have small claims up to $5,000, limited jurisdiction up to $10,000, limited jurisdiction up to $25,000, and then unlimited, where you cannot specify an amount. Ours will fall into the unlimited category and judgments will be according to proof.” 

In January, Oushalem filed suit against Silver Nails II on behalf of two Almaden teens, which he recently amended to include spa manufacturer Luxor and Orange County based distributor, Little Saigon Nail and Beauty Supply.  

He would not comment on further details regarding the cases, the first of which is expected in court next week. 
“We’re in discovery and it’s proceeding along,” he says. “We still don’t know who the manufacturers are at Kathy Nails or Nails National yet, but they will have to respond and identify the manufactures as part of our discovery request.” 

Oushalem maintains that he is working closely with attorneys Robert Bone Jr. and Javier Cosio, who are representing other victims.

Bone, who handled 53 of the Watsonville cases, is now representing 27 Santa Clara County clients, but says more are coming in at a consistent rate of about three per week. The damage to some he says has been so severe, two of his clients are hospitalized, one who had to have a 4-inch by 4-inch lesion surgically removed. He also has a male client on twice daily IV treatments. 

“This isn’t just a rash,” he says. 

Although Bone filed his first claim against Nails National a couple of weeks ago on behalf of eight victims, he is preparing to have them served again next week for another group, which includes at least three minors.  

“We are also going after Silver Nails II and Blossom Nails,” he adds. “I am investigating others at this time as well.” 
Bone is counting on a quicker resolution than in Watsonville. 

“I don’t anticipate they will take as long because there were some extraneous issues that were slowing those cases down,” he explains. “There were insurance coverage issues that we had to file a separate federal case on. Then the manufacturer of the chairs went bankrupt early on and we had some procedural obstacles with that.” 

Education is key 
One manufacturer is taking a more pro-active approach to protecting public health. Amerispa has decided to partner with Ameri-Kleen to launch a series of pedicure protection, safety and compliance seminars, the first of which will be held in San Jose this weekend.  

“The outbreak has had a disastrous economic effect on the Asian nail salon community,” stated Jim Casteel, vice-president of Amerispa. “While many have been forced to close their doors, others are struggling in a business that is off 60 percent or more. We can’t help but feel for these people.” 

Although company officials have agreed to waive the $75 course fee in an effort to encourage licensees to attend, a $10 processing fee will be charged for those wishing to receive the certificate. 

In addition to having Vietnamese translators on hand to enable licensees and others to communicate directly with inspectors and presenters, Nancy King, an internationally recognized trainer and educator in salon safety and sanitation practices will facilitate the seminars. 

“I think that’s great,” admits Oushalem. “King knows what she’s doing.”