A mother of three who turns 33 today is among victims who are hospitalized with botulism poisoning after eating at Valley Oak Food & Fuel, a gas station in Sacramento County, CA.

Lavinia Kelly remains partially paralyzed and on a ventilator as her family and friends wonder whether this will be her last birthday. She had no way of knowing when she stopped for a snack of chips and cheese sauce on the way home from work on April 21 that she would be admitted to an intensive care unit less than 48 hours later.

“She has remained in intensive care ever since, unable to move much, speak, breathe on her own, or open her eyes. Family members must pull her eyelids up to enable her to see at all,” according to a civil lawsuit filed in the Superior Court of California in Sacramento County.

“Lavinia Kelly experiences significant pain all over her body constantly. She is receiving methadone and Neurontin for pain control. (Her) medical condition is poor, and her prognosis uncertain.”

The lawsuit does not specify damages. It names the gas station in Walnut Grove, CA, and “John Doe” individuals and corporations because it is not yet clear how the cheese sauce at Valley Oak Food & Fuel became contaminated with Clostridium botulinum bacteria.

A total of nine people are hospitalized in the foodborne illness outbreak, according to public health officials in California. Five of the victims have been confirmed with botulism poisoning. All five ate food from the gas station before becoming ill.

Sacramento County pubic health officials are investigating another three “probable” cases and one “suspect” case.

County officials ordered the gas station to stop selling “prepared food” on May 5. On May 10 county officials renewed their public warning to those who recently ate food from the Valley Oak Food & Fuel station.

“Persons who consumed prepared food, particularly nacho cheese sauce, from Valley Oak Food and Fuel gas station from April 23 through May 5 and have symptoms should contact their medical provider immediately,” according to the update from the county.

“Botulism is a rare but serious paralytic illness caused by a nerve toxin that is produced by the bacterium Clostridium botulinum. Symptoms can include double vision, blurred vision, drooping eyelids, slurred speech, difficulty swallowing, dry mouth and muscle weakness.”

The lawsuit filed by Kelly’s family cites negligence, product liability and breach of implied warranty as grounds for the case and requests a jury trial.

Attorney Bruce Clark, of the Seattle-based food safety law firm MarlerClark LLP, said botulism cases from food at a store extremely are rare. Most cases are related to home-canned foods, according to the Centers for Disease Control and Prevention.

The CDC’s most recent statistics on botulism in the U.S. show 161 confirmed cases in 2014, with only 15 being foodborne.

“Only human mistakes create the environment for botulinum toxin to form,” Clark told the Sacramento Bee newspaper.

“We will use the lawsuit to learn more about the source of the food product that was contaminated. The source of the food product may be unrelated to the gas station, it could be a commercially made, pre-packaged item. That’s an essential question.”

For additional details, please see:

Editor’s note: Bill Marler, a founding partner of MarlerClark LLP, is publisher of Food Safety News.

(To sign up for a free subscription to Food Safety News, click here.)