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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Families file lawsuit over E. coli outbreak

Two dozen people sickened by the biggest E. coli outbreak in state history filed a lawsuit Wednesday against the Lane County Fair Board, claiming the board didn’t do enough to protect fairgoers given similar outbreaks in other states.

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.

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.

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. That’s why they decided to join the suit.

“The fair board didn’t seem to use a reasonable amount of care to prevent this,” Outman 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.

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.

I will challenge the constitutionality of the state’s “tort caps,” as they’re known. If I win, I’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.