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High court won't hear E. coli case

This story was published 5/18/2002

By Annette Cary

Herald staff writer

The Washington state Supreme Court declined to hear an appeal of a $4.6 million verdict against the Finley School District over a taco lunch tainted with E. coli.

It has transferred the case down to the Washington state Court of Appeals. Attorneys representing the district's insurer had chosen to bypass the Court of Appeals and take the case directly to the Supreme Court.

In early 2001, a Benton County Superior Court jury concluded the district had undercooked hamburger served to elementary students and awarded damages to 11 children and their families.

The district's insurer is arguing in the appeal that the case was flawed since it hinged on Washington's product liability law. That law applies to businesses, not schools, Seattle attorney William Hickman wrote in his request for the Supreme Court to consider the case. School districts are excluded under an exemption for a "provider of a professional service," he argued.

"In other words, when a district sells tainted taco meat - too bad, so sad," said Denis Stearns of Seattle, one of the attorneys for the children.

A doctor, lawyer or accountant - and not a school district - is a "professional" and has a "professional practice," the children's attorneys argued in their response to the Supreme Court. Schools fall under product liability law for the meals they serve, just as they may be sued if a child gets hurt on the playground or is harassed by a fellow student, they said.

Stearns pointed out the district is not contesting the jury's conclusion that the taco meat caused the outbreak of food poisoning.

The district also is appealing on the grounds it cannot be held liable for any harm to one of the children awarded damages, Faith Maxwell. She did not eat the lunch but fell ill after playing with students who did.

Although 11 children and their families were awarded money, about three-quarters of the award went to Maxwell and her family. Maxwell, who was 2 years old when the school lunch was served, suffered kidney damage and is expected to require multiple kidney transplants over her lifetime.

Doctors were not able to find samples of E. coli bacteria to prove Maxwell had the same genetic strain as the schoolchildren who fell ill. In addition, her attorneys were not able to prove how she was exposed to the bacteria, other than she played with two children who may have been ill and could have had the bacteria on their hands.

The district is arguing not only that Maxwell's illness was not conclusively linked to the taco meal, but also that the school should not be held responsible for a secondary case of the infection.

Her attorneys countered that the trial court correctly rejected arguments that a plaintiff must have had direct contact with the product to have a product liability claim. Her illness was caused by the E. coli in the meal even if she did not eat the meal, they said.

Northern States Beef, which manufactured the hamburger, has settled with the children and their families for $200,000.

If the courts uphold the judgment on appeal, the children and their families also will receive 12 percent interest on the money while payment was delayed.

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