Arguments heard in Finley school's E. coli case appeal


YAKIMA - Attorneys for a preschooler sickened with E. coli bacteria did not prove Finley Elementary School was responsible for her illness, an attorney representing the school's insurer argued Thursday.

The Washington State Court of Appeals heard arguments Thursday in Yakima on the district's appeal of a $4.6 million jury verdict that found 11 children were sickened by E. coli after the school undercooked meat served in a taco lunch in 1998.

Ten of the children who fell ill were students. The 11th, Faith Maxwell, was a preschooler who was exposed to the bacteria by a student who ate the lunch and fell ill, the jury concluded.

The majority of the award went to Faith, who was injured permanently and is expected to need multiple kidney transplants over her lifetime. "A jury verdict requires substantial evidence," said the insurer's attorney, William Hickman, of Seattle, after the hearing Thursday. But Faith's parents, John and Donna Maxwell of Finley, told doctors at emergency rooms in Kennewick and later Seattle that Faith had not been exposed to children in the E. coli outbreak, Hickman said.

The only doctor who treated Faith and testified during the trial about how she was infected said the place and time were right to indicate she was part of the same outbreak. But he told the jury that "the exact mechanism of her infection would be beyond my ability to render an opinion."

Other experts who testified about how Faith contracted the illness did not have direct contact with the medical case, Hickman said. "The law says there has to be sufficiently close connection between the event and the damage and we showed that," countered Charles Wiggins of Seattle, representing the children and their families.

The best epidemiologists in the country said Faith came in contact with the bacteria from a child made ill by the lunch, Wiggins said. The law does not require that the defense prove the exact minute the illness was contracted, said Bill Marler of Seattle, also representing the children. "That's why we have juries," Wiggins said.

The two sides also argued whether Washington's product liability law applied. The case made before the jury hinged on the law, but Hickman said the lunch did not meet the statutory definition of a "product," which requires that it be "designed for introduction into trade or commerce." "The school district did not make it for trade or commerce," Hickman said. "Taco Time makes (tacos) for trade or commerce." He also pointed out the product liability law exempts professional services that use a product as part of the service it provides. It's comparable to a hospital that was found not negligent for surgically inserting a steel spinal rod that later proved to be defective, he said.

"Finley School District is there to educate children" not sell tacos, he said. Attorneys for the children said the insurer's attorneys could not base their case during trial on the assumption that the product liability law applied and then raise arguments on appeal that it did not.

The defense did ask for a summary judgment during the trial, claiming the school could not be considered a manufacturer of the tacos and therefore was exempt from the product liability law. But when the trial judge denied the judgment, the defense argued that the meat was well cooked and the children could not have been contaminated with E. coli bacteria from the taco meat. That essentially was an argument that the school did manufacture the tacos and so would fall under the product liability act, plaintiff attorneys said.

The Court of Appeals is expected to take several months to make a decision in the case.

* Reporter Annette Cary can be reached at 582-1533 or via e-mail at acary@tri-cityherald.com.