Legionella E-news--1 February 2007

Legionella E-news -- 1 February 2007

Legionella E-news, 1 February 2007
HC Information Resources Inc.
Matthew R. Freije, Editor

**IN THIS ISSUE**
1. Hotel in Thailand Suspected in Four LD Cases
2. Six Cases in Sydney, Australia
3. Judge Slashes Verdict
4. Cooling Tower Inspections Now Required in Garland, Texas
5. Legionella Lawsuits: What to Expect and How to Prepare, by Hans A. Nilges
6. Legionella Management Plans

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1. HOTEL IN THAILAND SUSPECTED IN FOUR LD CASES
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On 3 January 2007, the European Working Group for Legionella Infections (EWGLI) issued an alert to the International Federation of Tour Operators, World Health Organization, and European Centre for Disease Control (ECDC) because four individual cases of Legionnaires' disease had been reported among tourists who had stayed at the same hotel in Phuket, Thailand since 20 November 2006. Two of the tourists are from Sweden, one from Norway, and one from Finland. Three are men, 24 to 66 years of age, and one a 51-year-old woman. None of the cases has been fatal. Some tour operators have stopped using the hotel for their guests temporarily, and all tour operators in Norway, Finland, and Sweden who used the hotel are informing the guests who stayed there since 20 November 2006. Source: Eurosurveillance Weekly

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2. SIX CASES IN SYDNEY, AUSTRALIA
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Six individuals who were in the Circular Quay area of Sydney on New Year's Eve contracted Legionnaires' disease. A cooling tower in which 1,400 cfu/ml Legionella was found is a suspected but unconfirmed source of the outbreak. Source: The Sydney Morning Herald

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3. JUDGE SLASHES VERDICT
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During an eight-month period ending in July 1994, many cases of pneumonia, at least six confirmed cases of Legionnaires’ disease, and one death, occurred among passengers who traveled aboard a cruise ship between New York and Bermuda. The cases were allegedly caused by two defective spa pool filters. Claims by passengers were settled in 2004. In June 2006, a New York jury ordered Pentair Inc., the company that purchased the filter manufacturer, to pay $193 Million to the cruise line for business that it claimed to have lost because of the contaminated filters. But this month a judge tossed out $135 million of the $193 million jury verdict. He let $10.4 million stand for direct expenses and ordered a new trial on the jury's finding that the cruise line should receive $47.6 million in lost profits. Sources: AP and Pioneer Press

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4. COOLING TOWER INSPECTIONS NOW REQUIRED IN GARLAND, TEXAS
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Annual Legionella inspections are now required for every cooling tower used at apartment complexes in Garland, Texas. For the full story, go to http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-legionella_01eas.ART0.East.Edition1.29739cd.html (if clicking the link does not work, paste all of it--both lines with no breaks--into your browser).

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5. LEGIONELLA LAWSUITS: WHAT TO EXPECT AND HOW TO PREPARE, BY HANS A. NILGES, ESQ.
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One thing is certain following a Legionella outbreak: somebody is getting sued. And, because Legionnaires' disease sometimes results in lasting injuries or death, millions of dollars are at risk in such lawsuits. For example, in 1994 several passengers on the Celebrity Cruise ship Horizon contracted Legionnaires’ disease while relaxing in the ship’s whirlpool spa. After years of litigation, the passengers were awarded, as a group, $190 million in damages.

Given this substantial risk, it is clearly advisable to understand the nature of the threat, and to take steps to make sure it is addressed. Doing so may help you reduce or eliminate your potential exposure and perhaps help you gain comfort living under the microbial Sword of Damocles that is Legionella.

What Can I Be Sued For?

Defendants have been sued under a variety of theories for Legionella infection, which can include, but are not limited to, negligence, strict products liability, breach of warranty, breach of contract, fraudulent misrepresentation, intentional tort, and malpractice. Because negligence and strict products liability are asserted in nearly every Legionella lawsuit, those theories are discussed in detail below.

1. Negligence

The most successful theory for most Legionella plaintiffs is negligence. In order to prove the tort of negligence, the Plaintiff must prove that each of the following is more likely than not: (a) the Defendant owed the Plaintiff a duty to prevent harm; (b) the Defendant breached that duty; (c) the Defendant’s breach of duty caused the Plaintiff some harm.

Whether the Defendant owes a duty to prevent harm to the Plaintiff depends on the relationship between the parties. For example, a hotel proprietor generally will owe a paying guest a duty to maintain its premises in a reasonably safe condition. This duty can include a requirement to conduct a reasonable inspection of its premises to discover dangerous conditions, such as the presence of Legionella bacteria in its water systems. Similarly, a water treatment equipment manufacturer generally owes a duty to consumers to produce products that will achieve their intended purpose (e.g., clean water that is free from pollutants such as Legionella).

Once a duty to prevent harm is established, whether the Defendant breached that duty will typically turn on whether the Defendant acted with “reasonable care” under the circumstances. In arguing this point, the Plaintiff will typically point to such things as a Defendant’s failure to test for Legionella or properly treat the water supply with biocides. The Defendant will likely rebut that no applicable federal, state, or local law requires such testing or treatment. Or, the Defendant may present proof that some testing and treatment did occur and argue that, while those efforts did not prevent infection, they were “reasonable.”

Causation in Legionella cases will typically be determined by a battle of the experts who will debate the fine points of the epidemiologic and environmental evidence. The jury will then consider the arguments and decide which one is more likely than the other.

2. Strict Products Liability

A person that sells a product that is defective in its design or manufacture, or fails to warn a consumer of a potential danger associated with the product, will often be held strictly liable for any resulting damages. This means that, unlike in a negligence action, the seller will be held liable for resulting injuries regardless of whether or not the seller acted with “reasonable care.”

For example, a manufacturer of a water treatment filter that, because of its design, permits the accumulation of Legionella bacteria in a spa can be strictly liable for any damages caused by such infection. Similarly, a person that supplies water used for a recreation center’s swimming pool and showers that contains Legionella bacteria may be held strictly liable for injuries incurred by patrons of the recreation center.

What Can I Do?

As the maxim goes, “an ounce of prevention is worth a pound of cure.” Accordingly, to ensure there is no doubt that you exercised “reasonable care,” significant steps should be taken to identify and appropriately treat all potential sources of Legionella. Because Legionella bacteria can be difficult to isolate and eradicate, it is strongly recommended that you enlist the services of qualified professionals. And, if regardless of these efforts a Legionella outbreak still occurs, make sure that you involve your attorney immediately.

Hans Nilges is an attorney with Brouse McDowell (www.brouse.com), a full-service business law firm headquartered in Ohio. He is a member of the firm’s labor and employment and litigation practice groups, involving trade secret misappropriation, covenants not to compete, breach of contract, and other general business litigation. Hans also regularly consults with employers about a variety of state and federal employment laws such as the FLSA, FMLA, ADA, and OSHA. Additionally, Hans is an active member of the Association of Water Technologies, and represents and provides counsel to several water treatment companies with regard to various aspects of their business. He is also the publisher of the Water Technology Legal Advisory, a quarterly newsletter dedicated to addressing the legal needs of the water technology industry. Hans can be reached at 330-535-5711 x389 or hnilges@brouse.com. The opinions expressed in this article are his own.

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6. LEGIONELLA MANAGEMENT PLANS
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For a limited time, a free copy of Legionellae Control in Health Care Facilities: A Guide for Minimizing Risk will be provided with each management plan purchased. If you download a management plan in PDF, we’ll still mail the free book to you.

Hospitals: http://hcinfo.com/318info.htm

Nursing Homes and Senior Living Facilities: http://hcinfo.com/319info.htm

Hotels: http://hcinfo.com/320info.htm

The management plans read like an in-house policy manual. Each is available in print (softcover) or on a CD for US$149 plus shipping, or can be downloaded at www.hcinfo.com for $119.

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