When Diners Smell a Rat : Consumers: Most of the time they simply file complaints, but once in a while they get mad enough to file suit.

Two years ago, when a friend suggested dinner at a Mexican restaurant, Lionel Hardy insisted that they have fried chicken instead. They purchased takeout dinners and were walking home, munching on their food, when Hardy says he noticed that his drumstick “tasted kinda funny.”

“My friend looked close at it and said, ‘Lionel, that isn’t chicken. That’s a rat,’ ” he recalls. When the 25-year-old handyman returned to the restaurant, the manager denied that the rodent came out of his fryer.

Undeterred, Hardy sued Popeye’s Famous Fried Chicken, 8530 S. Figueroa, alleging that after the discovery he lost 20 pounds, suffered emotional distress, recurring nightmares and persistent anxiety as well as “flashbacks.”

The defense, however, says it smells a rat.

“We had that rat evaluated,” said Michael Kramer, who is defending the food franchise. “It appears to be a pristine white rat that you see with a ribbon around it in a pet store. It’s not a back-alley type you’d see slipping into a restaurant.”

How the rodent got into the chicken will be a matter for the judicial system to sort out. For now, the evidence is in a freezer in the office of Hardy’s lawyer, marked “rat” so “no one will eat the evidence,” the attorney says.

As distasteful as it may seem, Hardy’s tale is not all that unusual.

Health agencies say consumers nationwide are routinely picking bugs, rats, bones, glass and other foreign objects from food they buy. Last year alone the federal Food and Drug Administration received 10,000 complaints, many of them involving so-called food adulteration.

Although the Los Angeles County Department of Health Services does not keep statistics on such complaints, food chief Wallace Sishido estimates that 98% of the calls the agency receives on the issue involve suspected insects.

He also cautions that many of the sightings are mistakes. “People find something that looks like rodent droppings,” he says, “and it turns out to be seasoning.”

It is not often that consumers get mad enough--or nauseated enough--to file lawsuits. But when they do, such cases are among the most bitterly fought because business reputations are on the line. Adverse publicity could mean big financial losses.

“If we aren’t responsible (for the adulteration), we take a very defensive approach,” says Phil Olivetti, claims director for the National Food Processors Assn. “Some cases would be funny if it were not so serious and costly for the industry.”

One of the services the association provides its members is food testing to determine whether contamination claims are justified.

In one case, Olivetti says, a man sent claims to several companies alleging that he found metal bits in products and that he received treatment from a doctor. The individual claims seemed legitimate, he adds, “but then we found a pattern.”

As in other product liability cases, complainants are likely to seek damages based on the traditional legal theories of negligence and breach of warranties. Under the negligence argument, plaintiffs must show that the defendant failed to take reasonable care in making, packaging and selling the product. To prevail in breach-of-warranty cases, it must be shown that the product wasn’t fit for its intended purpose.

In California, the legal meat of such cases is the so-called “chicken bone” defense, based on a 1936 state Supreme Court decision involving a man who choked on a chicken bone in a chicken pot pie. The court ruled that lawsuits are barred when the bone is natural to the food served.

But California judges have rendered differing opinions as to whether consumers have a case when it comes to unordered items on their plates.

In one case, for example, Jack Clark, a 34-year-old Bay Area resident, sued the Mexicali Rose restaurant in Alameda, alleging that he was seriously injured in 1988 when a 1-inch chicken bone lodged in his throat while he was eating a chicken burrito. He was rushed to a hospital, where the bone was removed. But his throat became infected and he needed three surgeries, said his Alameda attorney, William L. Berg.

But the restaurant, invoking the chicken bone defense, maintained that it wasn’t liable for Clark’s medical bills. “People have to use their common sense,” says the restaurant’s Walnut Creek attorney, Scott Bovee. “Chickens come with bones.”

A state Court of Appeal agreed, barring Clark from suing the restaurant. The case is before the state Supreme Court.

“That old case law is wrong,” argued Berg, contending that product liability laws have in recent years leaned towards giving consumers the benefit of the doubt. As he sees it, people who order half of a baked chicken would “reasonably expect” that there would be bones. “You don’t reasonably expect to find them in your chicken enchilada.”

Berg’s argument is bolstered by the case of Patrice Evart, who sued a Los Angeles restaurant and meat supplier alleging that she broke a tooth on a piece of bone in a hamburger. A judge dismissed the case before it went to trial after the defendants successfully argued that beef bone in ground beef is like chicken bones in chicken pies--a “naturally occurring substance.”

But an appeals court agreed with Evart when she argued: “I shouldn’t have to tear my hamburger into pieces to find out if something was in it.” She later received about $18,000 in an out-of-court settlement, according to her Los Angeles attorney, Michael Kushner.

Many food contamination cases don’t go to court because of evidentiary problems.

“People eat a candy bar, get sick a few days later and say, ‘Let’s sue,’ ” said Berg. “Well, it can be tough or impossible to prove the candy bar made them sick. And of course, they already ate the evidence.”

Los Angeles attorney James Bianchi notes that he has handled several legal settlements for restaurants over the years, including one case involving a cockroach in pancake mix: “The client was eating and, lo and behold, there was one of God’s creatures in there.” He adds, “It’s a continuous problem for restaurants.”

In cases that do end up in court, however, the defense usually tries to plant a seed of doubt in jurors’ minds that the plaintiffs could have planted the offensive item.

The Adolph Coors Co. won just such a case.

James N. Harvey, a 30-year-old construction worker from Florida, claimed to have found a mouse in a can of beer. He called the brewery’s consumer hot line and demanded $35,000 in exchange for the can and the mouse.

Coors got a court order forcing Harvey to turn over the rodent for testing. A pathologist determined by the degree of decomposition that the mouse could not have been in the can when it was packaged in 1988.

Coors claimed that it spent $500,000 defending its reputation and that a local distributor lost $100,000 in sales. Harvey eventually pleaded guilty to product tampering and extortion, made a public apology and was sentenced to several months in jail under a new Florida law on product tampering, a Coors spokesman said.

Sharon Mathie, a preschool teacher, still recalls with consternation how she was treated after pursuing a food case. “I’d have second thoughts before filing a similar claim,” she says. “The pressure was hardly worth it, all the paper work and the feeling that you are the one being investigated.”

But she still recalls with disgust and horror how in 1988 she opened a container of soup, emptied it into a bowl and, while talking to her husband, lifted a spoonful to her lips. Suddenly, she noticed “something that looked like a tea bag, dark and soggy.” She said her husband joked that it looked like a rat. “I took a second look and panicked.”

Mathie contacted the market where the soup was purchased, but it did not pull the product from the shelves. “I got angry. I thought consumers deserved better. So I decided I wouldn’t get any action unless I sued. I wasn’t interested in the money.”

However, the soup company had a laboratory examine the evidence and maintained that the item had been a piece of filter from food processing machinery.

“A filter doesn’t have the emotional value that a rat does for a jury, so we settled out of court,” says Mathie’s Santa Clarita attorney, Michael Phelan.

But Mathie still insists that the object floating in her soup was not man-made.

“A filter,” she says, “doesn’t have fur that ruffles up when you poke at it.”

Times researcher Joyce Pinney contributed to this story.

foreign objects