June 4, 2003
Two dozen families plan to file a lawsuit today against Lane County and the Lane County Fair Board, seeking damages for illnesses caused by the biggest outbreak of E. coli bacteria in state history at last year's county fair.
"All these folks became ill with a very deadly pathogen through no fault of their own," said William Marler, a Seattle lawyer representing the group. "The fair board and the county could have done more to prevent these people from getting sick in the first place."
Eighty-two people became sick at the fair - nearly two-thirds of them younger than age 6. Twelve children were treated at Portland hospitals for hemolytic uremic syndrome, or HUS, a potentially fatal complication of E. coli infection that causes kidney failure.
The families - all but two from Lane County - face a major hurdle even if they win a verdict from a local jury. Oregon law caps the liability of government agencies. Under the law, the most any single family could recover from the Fair Board and the county is $200,000.
Marler said he would challenge the cap, and he put the county on notice last January that he planned to bring the action.
The suit lists 13 E. coli outbreaks at fairs, petting zoos and farms across the country since 1994, including three at county fairs in the Midwest in summer 2001.
County fair officials were negligent if they knew about the earlier outbreaks and didn't take more aggressive steps to protect the public, the suit claims. If fair officials didn't know of the earlier outbreaks, they should have known, the suit says.
"The bottom line is the fair board created a place where people were bound to get ill regardless of what they did," Marler said. "Kids who never got out of their strollers, who never touched a cow, never touched a railing - all they did was get wheeled through a shed, and they got sick."
Warren Wong, the fair's managing director, said the fair followed appropriate sanitary practices.
"I believe what we did and have done are traditional and customary practices that represent the state of the industry," he said.
The fair plans to spend up to $25,000 to reduce the risk of E. coli infection at this year's exhibition by installing hand-washing stations outside animal barns, putting up signs and distributing brochures warning people of the risk.
Marler said the county should require that every animal be tested for E. coli. Some animals may slip through such a test, but it would go a long way to reduce risk, he said.
E. coli O157:H7 is most commonly spread through contaminated ground beef and water. But public health investigators traced the fair outbreak to the sheep and goat exposition hall on the south side of the fairgrounds.
Investigators never determined exactly how people got infected, but said the bacteria could have spread through straw contaminated with animal feces.
Bacteria also was found in the building's rafters, indicating that it became airborne and could have fallen on food, floors, railings or people's skin.
Tim Outman and Kimberly Kessel took their boys, Makyah and Kyler, to the fair on Aug. 17. The parents pushed the boys through the animal barns in a double stroller.
At one point, Makyah got out to inspect a mother pig nursing her piglets and put his hands on the railing of the pen, Kessel said. She wiped off his hands afterward.
Kyler, now 2, never got sick. But within days, Makyah, now 4, became violently ill with cramps, abdominal pain, bloody diarrhea, vomiting and fever.
"He was in excruciating pain," Outman said. "It looked as if he was defecating razor blades."
"It was heart-wrenching and paralyzing," Kessel said.
They took Makyah to Doernbecher Children's Hospital in Portland for three days to treat his HUS. The boy avoided dialysis and blood transfusions and today seems to be doing fine, with no sign of permanent damage, Outman said.
Outman and Kessel are both artists. They live in Eugene and have a studio in McKenzie Bridge. They don't have health insurance and incurred about $15,000 in medical expenses during their son's illness.
Outman called the fair board after the outbreak and asked it to cover their medical bills. He said he was told to send a copy of the bills to the fair board for coverage. But when he called back after sending in the bills, he was told the county wouldn't cover their expenses, he said.
That's why they decided to join the suit, Outman said.
"The fair board didn't seem to use a reasonable amount of care to prevent this," he said. "If someone comes on our property and gets injured, the standard we're held to is warn people or make it safe, and the fairgrounds did neither of those."
While Outman and Kessel hope their son won't have long-term health problems, many children who get HUS develop serious complications later in life and require lifelong medical care, Marler said.
Carson Walter, the 2-year-old daughter of William and Shelly Walter of Eugene, spent 31 days at Doernbecher and underwent 17 rounds of dialysis, a process that filtered toxins and excess water from her blood.
Today, Carson "seems to be fairly stable," though she's still taking blood pressure medicine, her mother said. The long-term damage to her kidneys won't be known until she's 10 or 12.
Madeleine Closson, 3, is doing well 10 months after she spent 15 days and underwent three surgeries at Doernbecher after she developed HUS, said her father, Kevin Closson of Portland.
"That's a hell of a lot to put a kid through," he said.
But she often wakes up in the middle of the night, gets headaches and routinely suffers painful stomachaches, he said, though he's not sure whether those are complications of her E. coli-induced illness.
Lane County Commissioner Bill Dwyer said he doesn't think the county or the fair board can be held liable for the outbreak.
"Whenever you're around animals, there's a risk you have to take," he said.
"The question is, was it reasonable what the county had done? I'd say it was probably the cleanest fair we ever had. "You take some risks when you allow your children to peruse among animals," Dwyer said.
Even with the cap on damages, the Lane County Fair pays about $61,000 a year for a $5 million general liability insurance policy to guard against federal lawsuits, out-of-state claims or contractual liability claims.
Marler said he will challenge the constitutionality of the state's "tort caps," as they're known.
If he wins, he'll ask the jury to award damages that would compensate at least some victims for a lifetime of medical care - sums that would likely run into millions of dollars and exceed the state cap.
The trial judge would then decide whether the cap applied. Whichever side lost that argument would appeal to the state Court of Appeals and ultimately to the state Supreme Court - a process that could take years.
LANE COUNTY FAIR CHANGES FOR 2003
Lane County Fair officials have made changes to reduce the risk of E. coli at the 2003 fair, scheduled Aug. 12-17.
Hand-washing: At least two dozen hand-washing stations will be set up outside barn exits. Last year, the fair used five.
Warning signs: Warnings will be posted at entrances and exits. Food and drink will be banned from barns.
Animal bedding: Animal exhibitors and superintendents advised to change bedding for large animals before and after public hours; old bedding for small animals may be covered with a thick layer of fresh straw. The anti-bacterial spray Virkon S also will be used.
Dust control: County will discourage animal exhibitors from using fans.
Germ City: Educational exhibit will allow children to use a black light to see dirt and germs on their hands before they wash and then to recheck their hands after washing.
Education: Brochures on animal diseases and personal hygiene will be distributed.
Estimated cost: $15,000 to $25,000.