Lawyers Disagree on Lawsuit Climate

Proving Negligence on Part of Water Park Would be Difficult, but not Impossible, Some Say

If White Water Park was the source of the E. coli bacteria outbreak, legal experts differ widely on how difficult it would be to prove negligence.

"Chances of being able to do that are slim and none," Columbus lawyer Paul Kilpatrick said. "If the source of the E. coli bacteria was another child who had a bowel movement in the pool, I don't think there's any way you can assess liability on a park owner on the theory they should have somehow screened children or adults to see if they had an infectious disease."

Not true, said William Marler and Denis Stearns, Seattle lawyers who sued and defended Jack in the Box during a 1993 E. coli outbreak and were in town to speak about the bacteria to food conventioneers.

"This is a wading pool designed for 2- and 3-year-olds; the whole reason you put chlorine in a pool is to protect this kind of thing from happening," said Marler, adding that picking up the disease in pools is very unusual. "In hot weather, chlorine dissipates faster. If chlorine wasn't doing its job, the bacteria is multiplying."

Problems would arise if the park had had complaints of similar problems and if an employee had seen potential problems and did not act, said Atlanta lawyer David Boone, past president of the Georgia Trial Lawyers Association. "If E. coli got in the water, there also has to be huge questions about chlorination or filtration systems," he said. "Anytime you go to a public pool, health standards are in place."

On Tuesday, Virginia Galvin, director of the Cobb County Public Health Department, said of the amusement park, "I don't believe there is any evidence of negligence."

Kilpatrick, former state Bar president, said an E. coli outbreak at a pool looks benign when compared to cases against the Jack in the Box chain, which included allegations of poor meat handling and inadequate cooking.

Settlements in those cases reached into the millions. Marler negotiated a $ 15.6 million settlement against Jack in the Box for a victim of the 1993 food outbreak that sickened more than 500 people and killed four.

Marler said he knows of no company that has risked an E. coli case before a jury. He said that children who suffer from hemolytic uremic syndrome --- a serious complication of E. coli 0157:H7 that affects the blood and kidneys --- spend more than 10 days on dialysis and often face a lifetime of health problems.

"These companies settle in seven figures because of the risks to the kids in the future," he said. As for White Water, he added, "I hope the company has plenty of insurance for the company and the kids' sake."