Litigation trend could snag utilities
January 3, 2017


By Ann Espinola

As Legionella and lead contamination lawsuits pop up across the United States, the line between a water utility’s responsibility and that of the property owner is being repeatedly called into question.

Smith and HaymanAlthough these contamination events often occur on private premises, a recent focus on contributing external factors is leading personal injury lawyers to cast a wider litigation net that could ensnare utilities, attorneys say. One of the consequences of the Flint crisis -- as well as widespread publicity of Legionella, lead, and cyanotoxin events across the United States -- is increased scrutiny of drinking water system operations.

“Anyone monitoring this would recognize there is a surge of lawsuits alleging injury and damages from water contamination,” said Susan E. Smith, an attorney who defends against Legionella claims. “It’s not a storm yet for utilities, but there is a perfect storm of factors coming together. People will be taking a closer look at what is in the water, at compliance, at discrepancies in records, and demanding transparency.”

In addition to Flint, lead-in-drinking water incidents have occurred over the years in Washington D.C., Sebring, Ohio, and Fresno, Calif, to name a few. Examples of the expanding focus of lead litigation surfaced last year when lawsuits in Chicago and Philadelphia claimed the cities knowingly conducted construction projects that disturbed lead pipes, increasing the risk of toxic levels of lead in residents’ tap water. Officials in both cities say their water meets all federal and state standards.


Large settlements

Legionella
-contamination settlements and jury awards over the past decade range from $307,000 to $5.2 million, and mostly targeted owners of buildings, cruise ships, hot tubs, hospitals and cooling towers, said Thomas P. Bernier, Smith’s partner at the Goldberg Segalla law firm. But those dollar amounts represent just a sampling because many settlements are confidential.

Not surprisingly, this has drawn the attention of plaintiffs’ attorneys, Bernier said. He noted that a Google search of “Legionnaires’ disease attorneys” nets more than 100 personal injury law firms. In the past six years, Bernier and Smith have dedicated a significant amount of their practice to defending against Legionella claims.

“We’ve handled at least a dozen outbreak investigations covering 12 states, and handled over 30 litigated matters related to Legionnaires’ disease,” Bernier said.

The sizeable Legionella settlements, according to Smith and Bernier, will inevitably lead to another trend: In order to protect themselves, building owners will begin testing the municipal water flowing into their properties.

An in-depth look at litigation and the water sector was presented at a recent AWWA webinar entitled “Emerging Legal Issues: A Lead and Legionella Trend.” Four defense attorneys offered insights, including Smith and Bernier, as well as John S. Guttmann and Randy E. Hayman, who defend against lead lawsuits for the Beveridge & Diamond firm.

There are no statutes or laws requiring testing of building water systems for Legionella, Smith said, but a 2015 Legionella outbreak in the South Bronx resulted in the City of New York adopting regulations requiring routine testing of cooling tower water for Legionella.

That was a watershed development in Legionella management.

“There is now a government-imposed standard of practice,” Bernier said. “There is a growing expectation that water distribution systems will have a water management program. And in the programs where water testing for Legionella is required, sophisticated water program managers will likely be testing incoming municipal water for the presence of Legionella to protect themselves in the event they get a positive finding for the bacteria.”

In the case of lead, contamination of drinking water typically occurs when lead from home plumbing or lead service lines leaches into the system. But replacing the lines isn’t always simple, because the utility usually does not own or control the lead service lines on private property.

Recognizing its first core principle is the protection of public health, the AWWA board voted unanimously last year to forge a path toward the replacement of all lead service lines. The Association supports the National Drinking Water Advisory Council recommendation that lead service line replacement occur through community responses built on a “shared responsibility," where action is taken by government at all levels, water utilities, and customers, among others.
Lead service line removal may be addressed in upcoming revisions to the Lead and Copper Rule. The revisions could also include regulations to improve optimal corrosion control treatment, as well as consideration of a health-based benchmark, the potential role of point-of-use filters, clarifications or strengthening of tap sampling requirements, increased transparency and public education requirements.

Currently, there is no health-based standard that can be used as a basis for lawsuits since the current LCR does not include one, but that could change with the expected revisions.

“Even if things are changed in significant ways going forward,” Guttmann said, “the existing rule, data that’s been reported under the rule, is going to continue to be critically important in litigation related to lead in water because it is there – and it is relevant to whether or not a utility has satisfied the applicable duty of care during this particular time, all the years the rule has been on the books.”

Utilities and their attorneys need to be on the lookout when plaintiff attorneys try to offer the current standard of 15 used in the LCR as a health-based standard, Guttmann said. Varying interpretations of the rule, as well as deliberate misrepresentations of it, have characterized lead contamination cases.

 “The litigation we have faced related to lead exposure via drinking water has been a constant battle to push back on plaintiffs and their experts who misuse the Lead and Copper Rule and attempt to suggest, or say outright if a judge will let them get away with it, that it means things other than what it actually means.”

Expanding litigation focus

In Flint, in addition to lead-contamination lawsuits, residents have filed Legionella-contamination suits against the State of Michigan, which was managing the city’s water system at the time of the outbreak. The suits claim failure to add corrosion-control chemicals allowed Legionella bacteria to breed in the city’s pipes. At least 91 people reportedly contracted Legionnaires’ disease in Flint, and 12 died from it.

“This is all putting an increased focus on public water systems,” Smith said. “The bottom line is the conditions do exist in public water systems for Legionella to colonize and reproduce. The aging infrastructure can cause water main breaks that can allow for the introduction of organic matter into a customer’s premises that will reduce disinfectant levels in that structure.”

Traditionally, Legionnaires’ disease has been viewed as a building-related disease, Bernier said.

“But with the outbreaks like the one in Flint, we see the culture developing that will conceivably expand the pool of targets,” he said. “We’re entering a brave new world.”

Last year, a Legionella outbreak in Saratoga Springs, New York, sickened 21 people. Of those, 14 had stayed at or visited a local nursing home during the exposure period. Since the other seven cases were not linked to the nursing home, the investigation broadened to other potential sources, including the community water system.

“Multiple sources have been investigated, including construction on the municipal water system,” according to a New York Department of Health statement provided to Connections.

Legionella is now the number one cause of recognized waterborne disease outbreaks associated with potable water in the United States. Typically, many conditions need to exist for someone to contract Legionnaires' disease. Stagnant water and temperatures between 68 to 126 degree Fahrenheit allow the bacteria to amplify rapidly in water. Then, it can be inhaled when the water is aerosolized into fine droplets or mist. Finally, exposure typically sickens only the elderly, smokers, and those with poor immune function.

The U.S. Centers for Disease Control and Prevention estimates between 8,000 and 18,000 people are hospitalized every year with Legionnaires’ disease – a pneumonia-like illness -- and one in 10 die from it. There has been a 300 percent increase in reported cases since 2000, although experts believe many cases go undiagnosed.

The CDC offers a guide on its website to help building manager reduce the risk of Legionella in their water systems.

Tracy Mehan, AWWA’s executive director of government affairs, moderated the webinar and noted the Association has resources for lead and Legionella on its website. 
                                       
Defense strategies 

During the webinar, the attorneys outlined strategies for utilities to protect themselves against potential lead and Legionella litigation. The defenses include compliance with existing rules, collecting appropriate data, keeping meticulous records, and alerting the public quickly when contamination events occur.

Timely notification is one of the most important factors in defending against contamination suits, the attorneys said. Hayman is former general counsel for D.C. Water, and led the utility through major lead-in-water lawsuits between 2010 and 2015 as they matured through litigation towards trial.

“When you’re dealing with a water authority, there’s a culture and that culture needs to foster honesty, quick reaction and openness,” Hayman said. “One of the big problems you have in Flint is not that they were unaware of the problem. They were aware of the problem and individuals did not do the right thing quickly enough.”

When he was general counsel for D.C. Water, “If we had an issue, we had all hands on deck at 8 o’clock. By 10 o’clock, we were talking to different directors about what they were going to do. By noon, we were deciding if we were going to put out a boiled water alert, or go to the press and have something put on television that evening. You have to work quickly and succinctly as a team.”

But before addressing warning issues, plaintiffs in lead and Legionella cases must show causation – that the illness is directly attributable to contaminant exposure, Guttmann said.

Plaintiffs in lead cases claim exposure caused neuro-cognitive injuries, Guttmann said. “The allegations are the child has a diminution in IQ: ‘My son may have an IQ of 140, genius level IQ, but he’d be even smarter without the lead exposure.’ We actually had one like that.

“But the more typical case is a child whose IQ measures at lower level and the argument is there is a real impediment to this individual’s development in life as a consequence of the exposure.”

Guttmann said defense attorneys struggle in lead cases to explain that water coming out of the tap varies in lead levels over time.

“It is important to recognize that temporal variability because you will read in the paper about a high lead sampling result, but it doesn’t necessarily bear any relationship to the water the people in the house are actually consuming,” Guttmann said. “This is a hard point to convey to jurors and judges, but it is a very important one in this litigation. And it goes back to the Lead and Copper Rule and how complex it is.”

If the action level is triggered under the LCR, there are various things a utility must do: increase sampling and monitoring, implement corrosion control, begin public education programs and, in some cases, replace lead service lines.

“A key thing in litigation will be how the utility has responded to those requirements,” Guttmann said.

 In negligence cases, he said, the public disclosure warning is typically the most difficult to defend.

“There will always be failure-to-warn claims: ‘You should have done more to tell the public.’ ‘You should have put more things in the newspapers.’ ‘You should have worded things slightly differently.’ To the extent there’s any deviation from EPA’s requirements with respect to public education, even if it’s using the same words, but putting them in a different order, there’s going to be an argument that it was an effort to mislead.”

And even if things are done precisely according to EPA regulations, Guttmann, some plaintiffs will still argue, “‘Well, you should have even done more than that. It’s just a baseline. That doesn’t necessarily mean you’ve fulfilled your obligation to the public.’”

Ultimately, in addition to proving a plaintiff fell ill because of exposure to the contaminant, the plaintiff must also prove someone in charge breached a standard of care. 

“At the end of the day, it’s ‘What would a reasonable provider do?’ That’s the bottom line, and so it’s mushy,” Guttmann said.

Bernier called the standard of care a “moving target.”

“While we can’t definitively tell you what it is, we can tell you what it’s not,” Bernier said. “The idea of willful blindness, or the idea of hiding one’s head in the sand is not going to cut it in today’s world.”

Hayman said today’s utility managers navigate a difficult road in simultaneously overseeing compliance, outreach and possible defenses when things go wrong.

Managers protect public health while defending lawsuits, Hayman said, and improve water quality while balancing a budget. They aim for transparency with customers, regulators and stakeholders, while at the same time walking the tightrope of trying to preserve legal defenses.

“You are acknowledging lead toxicity while educating on genuine issues,” Hayman said. “You are dealing with coordinating multiple agencies regarding complex data and health information and trying to gather that information…..Not an easy task for water utilities across the country.”

Do you have a comment or story idea for Connections? Please contact Ann Espinola at aespinola@awwa.org.



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