"The best thing those entities can do is sit down and say we'll pay all noninsured medical expenses, no strings attached,'' said William Marler of Seattle. "That goes a long way to resolving most people's immediate angst.''
The outbreak stemming from a contaminated well at the Washington County Fair has so far sickened 804 people, hospitalized 64 people and claimed two lives, 3-year-old Rachel Aldrich of Clifton Park and 79-year-old Ernest Wester.
Marler is recognized as the leading legal expert on E. coli after representing victims in some of the largest outbreaks to date. In the past five years, he has filed lawsuits or been in legal battles against the Jack-in-the-Box hamburger chain, McDonald's, Odwalla juice company and Costco.
His most recent case is against White Water amusement park after 26 children were infected last year with the bacteria from swimming in a contaminated pool near Atlanta. His largest settlement was for $15.6 million against Jack-in-the-Box on behalf of a 10-year-old girl who suffered severe complications, including hemolytic uremic syndrome, which attacks the kidneys.
Local attorneys have already warned of a potential flurry of lawsuits in the wake of what could be the largest E. coli outbreak in U.S. history.
"This is pretty straightforward,'' said Ronald Benjamin, an Albany attorney who is advertising for potential clients. "It's pretty clear there is going to be liability.'' The illness has been linked to an unchlorinated well at the Washington County Fair that was contaminated with manure from a barn only 83-feet away. Water from the tainted well was used for drinking, food preparation and hand-washing. Fair organizers have said the outbreak and related lawsuits could jeopardize the 109-year-old event, held in late August.
Doug Weaver, the board president, has said the fair has insurance but has declined to say how much. He was unavailable for comments about liability Tuesday. Most attorneys say the fair will be held responsible in any civil litigation from the outbreak, as could state and county officials and food vendors.
"Liability is never an issue in these cases,'' Marler said. "It's a question of how much do they have to pay.'' Under strict liability doctrine, property owners have an obligation to provide a safe environment, just as restaurants or food companies have an obligation to serve safe food, attorneys say. State and county officials could be held liable if laws or inspections were found to fall short of protecting the public. State health officials have already said that current standards aren't sufficient. On Monday, Health Commissioner Dr. Antonia Novello used her emergency powers to order fairgrounds to disinfect their wells. She has promised changes to state health law as it relates to public water systems, mass gatherings and food vendors. Yet Health Department spokeswoman Kristine Smith said officials aren't thinking of lawsuits but rather of containing the outbreak. Secondary infections remained at 10 on Tuesday, suggesting that the illness has not spread in homes, schools or day care centers.
On Marler's suggestion that a fund be set up, Smith said that would be up to the commissioner to consider.
"I do know we operated completely within our regulatory authority,'' Smith said. "The problem is we don't have the regulations, as this incident proved. That's why the commissioner wants to get the laws and regulations changed.'' Suzanne Kiner of Redmond, Wash., believes her lawsuit against Jack-in-the-Box eventually helped pressure private companies and public agencies to change their approach to handling and inspecting meat.
She settled with the fast-food chain for $15.6 million after her daughter, Brianne, came down with E. coli in January 1993 from eating a tainted hamburger. Brianne, who was 10 at the time, spent almost 200 days in the hospital, including 118 days on dialysis. "I knew if she survived it, she was going to need extraordinary medical care,'' she said. Staff writer Edward Fitzpatrick contributed to this report.