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
• 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 a 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 offer in-house strategic and crisis communications services, and have also established relationships with top crisis communications professionals and firms across our entire national footprint. 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 Legionnaires’ disease 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
• Using aggressive discovery motions to expose the weaknesses of a plaintiff’s case
• 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 five 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 and legal privilege
• Serving as a “one-stop shop” for every phase of dealing with a Legionellosis outbreak

• Defended nursing home against multiple claims of exposure to legionella bacteria from potable water system
• Defending residential and commercial building owners, and others, against dozens of lawsuits throughout New York City alleging exposure to legionella from cooling towers
• Defending building owners and operators before the Office of Administrative Trials and Hearings (OATH) in matters arising from regulatory violations issued by the New York City Department of Health
• Provide coverage opinions to insurance carriers concerning property-related claims
• Investigate pre-suit claims against residential building owners in New York and New Jersey
• Negotiated nominal settlements of numerous personal injury claims on behalf of various types of property owners (e.g., individual homeowners, apartment complexes, nursing homes) where the alleged exposures pertained to potable water systems, hot tubs, and cooling towers
• Obtained a dismissal of a lawsuit against a hotel in New York City