Risk Avoidance, Crisis Management, and Defense
When it comes to handling Legionnaire’s disease investigations and claims, the right first call beats any last resort. We know, because we’ve been both.
Attorneys in Goldberg Segalla’s Environmental Practice Group have counseled clients facing matters related to Legionnaires’ disease outbreaks at every stage. We have provided rapid response counsel for over a dozen outbreak investigations in 12 states, have handled over 30 litigated matters related to Legionnaires’ disease, and have advised insurers as well as general counsel and top executives for companies in numerous industries on risk avoidance, compliance, and crisis management.
As recognized authorities on legal and regulatory matters related to Legionnaires’ disease with experience counseling and defending claims in various, complicated outbreak scenarios across the country, we have the knowledge as well as the practical skills to step in, triage, and turn around investigations and claims that have spiraled out of control. But our experience also shows that earlier involvement leads to better results.
We have experienced Legionnaires’ disease litigators positioned to defend clients out of our offices in 10 states, and have also handled investigations and served as Legionnaires’ disease litigation oversight counsel in jurisdictions outside our physical footprint. Collaborating closely with attorneys in our dedicated Retail and Hospitality, Health Care, Long-Term Care, Higher Education, Food and Beverage, Sports and Entertainment, Municipal and Government Liability, and other practice groups, and working with an expansive national network of experts as well as crisis communications professionals, we stand prepared to assist clients — in any industry, anywhere in the U.S. — with the full spectrum of legal issues related to Legionnaires’ disease.
The Centers for Disease Control and Prevention (CDC) estimates that there is an average of 10,000 cases of Legionnaires’ disease reported in the U.S. each year. Legionnaires’ disease is a virulent form of pneumonia with accompanying high fever, nausea, vomiting and diarrhea. The mortality rate for those contracting the disease is 10 percent. A less virulent form of legionella infection is known as “Pontiac Fever”, which does not involve pneumonia and usually resolves without medical attention. Together, Legionnaires’ disease and Pontiac Fever are known as “Legionellosis.” Legionellosis is caused by the waterborne bacteria Legionella, which exists in all natural and man-made water distribution systems and is known to amplify rapidly under certain conditions. Infection only occurs when pathogen-carrying water is aerosolized and inhaled. Symptoms of Legionnaires’ disease occur within 2 to 14 days of exposure. Pontiac Fever symptoms occur more quickly usually within 2-5 days.
Named for an outbreak among attendees at an American Legion conference in Philadelphia in 1976, Legionella infections often come in clusters, and mortality rates are significant. The number of reported cases have continued to rise since 2000. The rate of reported cases in the United States increased by 350 percent for the period 2000–2015. Legal claims for personal injury have followed, with settlements and jury awards over the past decade ranging from $307,000 to $5.2 million. The claims have traditionally targeted the owners, designers, manufacturers, and managers of complex water systems related to residential and commercial property, health, recreational and fitness facilities and their water distribution features and equipment including:
- Apartment buildings
- Commercial buildings
- Cooling Towers
- Cruise ships
- Decorative fountains
- Dental Equipment
- Drinking fountains
- Health clubs and spas
- Hot tubs
- HVAC equipment
- Ice machines
- Medical respiratory devices
- Mobile homes, RVs & travel trailers
- Plumbing fixtures and supplies
- Produce misters
- Senior/assisted living facilities
- Shopping malls
- Swimming pools
- Touchless faucets
- Water heaters
- Obtained summary judgment in the Superior Court for the District of Columbia on behalf of a building owner who faced a lawsuit brought by a plaintiff claiming millions of dollars in personal injury damages as a result of contracting Legionnaire’s disease. The victory centered on the successful exclusion of the plaintiff’s expert witness, and the District of Columbia Court of Appeals affirmed the Superior Court’s decision.
- Provided oversight to trial team obtaining dismissal in the Lauderdale County Circuit Court in Florence Alabama on behalf of a large retailer from numerous claims of injury associated with a Legionnaires’ disease outbreak at a neighboring nursing home. This dismissal centered on the strong expert testimony proving no link to the alleged source.
- Negotiated nominal settlement in a case filed in the State District Court in Minneapolis, Minnesota, on behalf of a hotel owner following rulings limiting plaintiff expert’s opinions as to source. Plaintiff had been in a coma for over 40 days and sustained $1 million in medical bills following his diagnosis with Legionnaires’ disease.
- Negotiated nominal settlement in a case filed in the Circuit Court for Worcester County, Maryland, on behalf of a hotel owner following depositions of plaintiff’s experts which exposed plaintiff’s inability to establish causation and damages associated with a prior outbreak of Legionnaires’ disease linked to the hotel.
- Negotiated nominal settlement in a case filed in the Supreme Court of New York, Bronx County on behalf of a residential apartment complex following proof that plaintiff could not prove a diagnosis of Legionnaires’ disease or a causal link to a known outbreak previously associated with the apartment complex.
Investigation of a Legionnaires’ disease claim must begin immediately. Legionnaires’ disease is a reportable disease. Upon each diagnosis, health care practitioners must report it to the local public health department. The general rule is that health departments begin an outbreak investigation when two or more cases are associated with the same suspected source. Often Health Department investigators show up unannounced, prepared to inspect and sample in search of a contaminated source.
Comprehensive Investigations Counsel
Premises owners and managers need immediate access to experienced help to guide them through each step of an investigation. In some cases environmental experts are needed to monitor the investigation and if necessary perform an independent parallel investigation. Goldberg Segalla’s Legionnaires’ disease management team has existing relationships with experts in Legionella risk mitigation, source identification and, if necessary, remediation. A thorough investigation includes:
- Identification of all critical water features capable of harboring Legionella;
- Review of all existing water management and treatment plans for these critical features;
- Sampling and testing of water for bacteria;
- Sampling of incoming water source for contamination;
- Obtaining clinical confirmation of plaintiffs’ diagnoses;
- Reconciling the onset of symptoms with the incubation period following the alleged date of exposure;
- Seeking out other potential exposure sources; and
- Evaluating sampling data.
Ninety-five percent of Legionnaires’ disease cases are classified as “sporadic,” meaning they are not associated with an outbreak. In the event that a sporadic case is alleged to have originated at specific property a quick investigation is even more crucial, since there will be no action taken by public health officials.
Mitigating Business Impact and Media Exposure
In addition to potential exposure to a multimillion-dollar legal action, the investigation and remediation of a Legionnaires’ disease outbreak often results in temporary closure of the affected building, leading to potential substantial business interruption losses along with irreparable negative publicity. Often public health officials require that premises owners post notice of Legionella infestation and that prior tenants, patients, guests, and visitors be contacted and advised that they may have been exposed. Further, the media is regularly involved when outbreak investigations begin. Our attorneys begin each client relationship not only by mastering the facts of the matter at hand, but also with an effort to get to know the client’s business, equipping us with a better appreciation of the sensitivity of the issues we handle. We have established relationships with top crisis communications professionals and firms across our entire national footprint, and we can mobilize and manage these resources, efficiently coordinating public and media relations along with investigations or litigation defense.
Despite the growing numbers of guidelines and regulations designed to reduce its incidence, cases of Legionnaires’ disease remain on the rise, and show no signs of slowing. Outbreaks can affect dozens or even hundreds of people, fatalities are frequent, and survivors often sustain serious permanent injury — all making Legionnaires’ disease a darling of the plaintiffs’ bar. Google turns up tens of thousands of results for searches related to “Legionnaires’ disease lawyer,” and news articles on outbreak investigations often feature targeted ads for personal injury attorneys.
Understanding the Landscape of Legionella Litigation
Legionella-related claims for wrongful death and serious personal injury are the most common, but claims for property damage and economic loss (from business interruption) are increasingly frequent — and economic loss awards for large businesses can dwarf jury verdicts for death or injury. Even more recently, savvy plaintiffs’ attorneys have begun to target manufacturers, alleging product design, manufacture, and instructions and warnings defects, seeking recovery under strict product liability and for breach of express and implied warranty.
Plaintiffs in Legionella cases typically allege a negligence claim under a premises liability theory, asserting that a defendant owed a specific or generalized duty of care. Such claims can include:
- Failure to create and implement an approved water management plan
- Failure to ensure proper levels of biocides and chlorine
- Failure to maintain proper water flow throughout a potable water system
- Failure to maintain water distribution systems properly to prevent the growth of Legionella
- Failure to periodically flush water systems to eliminate sediment, biofilm, and other Legionella food sources
- Failure to properly remediate
- Failure to properly treat and test water in pools and hot tubs
- Failure to set and maintain hot water storage temperatures in a range sufficient to eliminate or control the growth of the bacteria
- Failure to warn of the presence of Legionella
Proven Defense Practices
Plaintiffs who have been part of an outbreak investigation by the Department of Health likely have a confirmed diagnosis that has been epidemiologically linked to the presence of Legionella at a specific site. In some cases the bacteria found at the site will be cultured and genetically linked through DNA to bacteria cultured from the sick plaintiff. Even in these cases, liability is not a foregone conclusion. Our results demonstrate the cost-efficiencies and other benefits of focusing on standard of care issues instead of questions of fact about contamination, exposure, and causation. Our attorneys have experience with proven strategies and tactics for defending Legionnaires’ disease claims, including:
- Determining and challenging the existence and scope of a duty of care;
- Identifying and interpreting relevant industry standards and guidelines;
- Identifying and impleading other culpable parties for contribution or indemnity;
- Presenting and positioning defense expert testimony;
- Challenging the qualifications and basis of knowledge of plaintiff’s experts under Daubert and Frye;
- Precluding plaintiffs’ experts from offering standard of care or source opinions;
- Utilizing aggressive discovery motions to expose the weaknesses of a plaintiff’s case; and
- Drafting persuasive Motions for Summary Judgment.
Proactive attention to the potential amplification of Legionella within a premises is obviously preferable to dealing with an outbreak of disease. However, there is no threshold concentration or amount of Legionella definitively identified as posing a risk to human health. The risk of infection depends on factors including virulence and host susceptibility. Even for those exposed the attack rate for contracting Legionnaires’ disease is only 5 percent. Those most likely to contract the disease are generally immunocompromised due to age, smoking history, diabetes, obesity, organ transplant, or preexisting chronic illness. Facilities catering to or serving as the permanent or temporary residences for such people need special attention.
As trusted counselors to leading retail and restaurant corporations, global hospitality companies, major league sports entities, large health care facilities, universities, municipalities, and more, our attorneys regularly assist clients with:
- Assessing foreseeable Legionella-related risks;
- Creating and implementing water management plans, including those for cooling towers;
- Coordinating remediation measures when needed;
- Creating rapid response protocols in advance of emergencies;
- Understanding regulatory requirements;
- Establishing communication channels protected by the “attorney/client” relationship;
- Serving as a “one-stop shop” for every phase of dealing with a Legionellosis outbreak.
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July 24, 2018