The Register-Guard - September 10, 2002
As a rule of thumb, when people get hurt, lawyers and lawsuits are soon to follow.
At least 73 people have become sick from E. coli O157:H7 linked to an animal barn at last month's Lane County Fair, including 12 children hospitalized for treatment of a serious complication of E. coli infection.
A handful of their families have contacted a Seattle law firm that has won numerous multimillion-dollar awards and settlements in E. coli cases across the nation.
William Marler, a partner in the firm, said "the likelihood is quite high" that he'll file a lawsuit on behalf of one or more of the families.
But under Oregon law, the most any single family could recover from the fair, a public agency, is $200,000, and it's possible that the fair's total liability from the outbreak would be capped at $500,000.
The Legislature has enacted a "tort caps" law that limits the liability of public agencies and their employees. The most that can be paid to injured individuals is $100,000, unless their medical bills exceed $100,000, in which case they can get up to another $100,000.
The most that can be paid out for a "single accident or occurrence" is $500,000.
The same state law also prohibits punitive damages - sums that juries sometimes award on top of money to compensate plaintiffs for their injuries.
Oregon's cap is "sort of a sad state of affairs," said Bruce Clark, Marler's partner in Marler Clark in Seattle.
Awards and settlements in E. coli cases can range from hundreds of thousands of dollars to millions, Clark said. Jack in the Box paid out $110 million in damages after 700 people were sickened and four people died from eating contaminated beef in 1993.
The awards are big because hospital bills for children sickened by E. coli can run into the hundreds of thousands of dollars, and the children can face a lifetime of costly medical care that runs into the millions of dollars, Marler said.
Hemolytic uremic syndrome, or HUS, is a serious complication of E. coli infection, which hits young children hard. HUS can cause kidney failure and in about 5 percent of cases, leads to death.
Marler won a $15.6 million award in a single case stemming from the Jack in the Box E. coli outbreak. Last year, his firm won $4.25 million from the Finley School District in Eastern Washington for one of the 11 children sickened by E. coli when school cooks served undercooked taco meat for a school lunch.
"This lawsuit - if one goes forward and caps apply - it won't be about money," he said. "It will be about making fairs feel responsible" for the health of their patrons.
Public health investigators have ruled out food and water as possible sources of E. coli at the fair and have traced the outbreak to the sheep and goat exposition hall on the south side of the fairgrounds.
Dale Hancock, a veterinary epidemiologist at Washington State University and a national expert on E. coli, said if children at the Lane County Fair were allowed to pet or have their fingers suckled by small animals without aggressive efforts to encourage hand-washing, "that would be a major problem."
"There could even be an issue of negligence unless there was supervised hand-washing afterward," he said.
Fair officials installed five portable hand-washing stations outside animal barns for this year's fair. But they posted no signs warning fairgoers to wash their hands after visiting animals.
The Lane County Fair is an arm of Lane County government, but it operates the 55-acre fairgrounds independently, said County Administrator Bill Van Vactor. It has its own board of directors, appointed by county commissioners, and receives no money from the county's general fund.
It's possible the county could be named as a defendant in any lawsuit against the fair, though the same cap on damages would apply.
"The fair board is addressing the matter and they have first responsibility," said Teresa Wilson, county counsel. "Lane County obviously has the potential of a secondary liability, but we have not evaluated it at this point. Our biggest concern is for the welfare of the kids who got sick."
Even with the cap, the Lane County Fair pays about $61,000 a year for a $5 million general liability insurance policy. The policy provides extra coverage because the state damage cap doesn't protect the fair from federal lawsuits, out-of-state claims or contractual liability claims, said Ron Cramer, the fair's Eugene insurance agent.
The fair's policy is underwritten by a self-insurance pool of the League of Oregon Cities, called City-County Insurance Services. The pool covers about 75 percent of the state's cities and counties.
"Obviously, the insurance company is going to investigate," Cramer said. "If they feel the fair board was not negligent, they may take a position of denial. If they find the fair board had some responsibility here, they will be wanting to deal with the claims."