$4.75 million awarded in E. coli case


A Benton County Superior Court jury awarded $4.75 million Friday to 11 children and their families for an outbreak of E. coli poisoning caused by a taco meal served at Finley Elementary School.

Most of the money goes to Faith Maxwell, 4, who will need a series of kidney transplants. She became infected with the bacteria while playing with older children who ate the lunch two years ago.

"It was less than I was expecting," said John Maxwell, Faith's father. "I worry about her not being able to work."

But he said, "We'll deal with what we have to deal with."

The Maxwell's attorneys had asked the jury for $7.86 million for the family, and the defense had suggested about $1.7 million.

The jury settled on $3.6 million for Faith Maxwell, plus the cost of past medical expenses and $200,000 for her parents' emotional suffering.

"She's set for life -- she will not have to pay medical bills out of pocket," juror Sean O'Neal told the Herald.

The jury took seriously legal instructions reminding them to consider the interest the award would earn, among other factors, he said.

Jurors settled on $1 million for future medical expenses and $2 million for future nonmedical difficulties, such as lost wages and emotional stress. She also was awarded $600,000 as compensation for her past suffering.

"We're relieved with the outcome in terms of the monetary amount," said Diehl Rettig, attorney for the school district. "We knew given the very serious nature of the injuries for Faith Maxwell (that) we might be faced with a runaway verdict. I think the jury showed restraint and was reasonable without being excessive."

The district's insurer will cover the settlement, but Superintendent Rob Van Slyke fears the district's premiums may go up.

The award may be adequate, but barely, said one of the children's attorneys. "The amount of money awarded in Faith's case -- with careful planning and a little luck -- will be enough," Denis Stearns said.

Most of the settlement will be invested and held in trust for Faith and the other 10 children's education and medical expenses.

Bill Marler, also a plaintiffs' attorney, said the verdict was within about 20 percent of out-of-court settlements reached in other E. coli food poisoning cases in the United States. He's not aware of any other cases that have gone to trial, however.

The amounts for some of other children also were less than he had hoped, Marler said.

However, plaintiffs also are expected to receive some money from Northern States Beef, which supplied the hamburger served in the school lunch. It settled with the families before the trial for an undisclosed amount, without admitting the meat was contaminated.

Awards for the other 10 children started at $1,200 plus medical expenses for a child treated in an emergency room. Children who were hospitalized but did not develop a life-threatening kidney complication received larger amounts, ranging up to $25,000.

Two children besides Faith Maxwell developed kidney problems and were treated at Children's Hospital in Seattle. They appear healthy but continue to be monitored. Those children and their families each were awarded about $275,000 plus past medical expenses.

The E. coli bacteria produces a toxin that eats through the intestines, sometimes causing bloody diarrhea and pain. Some medical experts compared the pain with childbirth, and parents described their children crying and screaming.

"It was really hard to put a dollar amount on pain and suffering," O'Neal said. "That took the majority (of time)."

The jury deliberated for nearly two days.

"We wanted to make sure the kids were compensated," he said. "This was a terrible time in their life."

Of chief concern was Faith, he said.

"This kid is going to be screwed up for the rest of her life," he said.

Both plaintiff and defense attorneys agreed her kidneys will fail, and she will need more than one transplant. Her attorneys said she could require her first transplant as a teen-ager and that it might last just 13 years before she will need another.

She also could spend much of her life on time-consuming kidney dialysis, which leaves some patients unable to work at a job. After she has transplants, she must take anti-rejection drugs that have side effects that could make her face puff up and make excess hair grow on her face and body.

Her attorneys also argued she had some injury to her brain caused by the E. coli, which already requires therapy for speech difficulties and weakness on her left side.

Friday also was the first time the jury was allowed to talk about the first phase of the five-week trial, which determined earlier this month that the jury unanimously concluded the school district was responsible for the E. coli outbreak.

O'Neal said the verdict had not meant to point fingers at the food service employees and that the jury did not believe they had intentionally harmed the children.

"We know these people loved those children," he said.

However, the jury had a difficult time with the defense arguing for nearly three weeks that the taco meat did not cause the outbreak, and then switching tactics, O'Neal said.

At the end of the first phase of the trial, defense attorneys told the jury that if it believed the meat was tainted, it should blame the supplier rather than the school district.

The jury not only decided the meat was undercooked, but assigned 100 percent of the blame for the outbreak to the district and none to the supplier.

Several people, including one of the school cooks, testified that all hamburger had to treated as if it might be contaminated and thoroughly cooked to kill any bacteria, O'Neal pointed out.

That's also why the plaintiffs' attorneys decided to settle out of court with the meat supplier rather than going to court to collect a larger amount, Marler said.