Dec
01
2014
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Olympic Games in Rio de Janeiro Raises Legal and Public Health Questions regarding water quality liability and Legionella bacteria

 By: Jules Zacher, JD MA; Tawny Vu, MPH

1. Introduction

Rio de Janeiro will be the host city for the Games of the XXXI Olympiad in 2016.  Athletes and tourists from all over the world will come to this beautiful city by the sea.  While the infrastructure for the Games is being completed, many hotels, hospitals and even the Olympic Village should consider their legal exposure to these guests for contracting such diseases as Legionnaires’ disease.  The purpose of this paper will be to discuss what, if any, legal liability Brazilian entities face from Americans who contract the disease in Brazil

2. Dangers Associated with Legionnaires’ disease for Travelers

Legionnaires’ disease is an uncommon form of pneumonia that occurs when a person is infected with Legionella bacteria typically by aspirating or inhaling aerosolized water containing Legionella bacteria.  Bacteria accumulate in potable water systems when building operators do not properly maintain their water and can be eliminated from the system through various disinfection and preventive methods.  This is more frequently an issue in larger facilities with complex water systems, such as hotels, hospitals, etc.

Failure to maintain the appropriate biocide levels and/or temperatures may result in the propagation of the bacteria within a building’s potable water system.  What should be pointed out here is that water coming in off the municipal main (although having been treated by chlorine and other disinfectants) can have Legionella bacteria.  Once the water reaches the building, however, the bacteria can multiply if the temperature and/or biocide levels are not adequate enough to kill them.

Many building owners, even in the United States, are unaware of the dangers associated with Legionnaires’ disease.  The disease, although entirely preventable, can be lethal or, at the very least, debilitating if contracted.  Individuals who contract the potentially deadly illness often require extensive stays at the hospital with a rigorous antibiotic regimen.

Travel-associated Legionnaires’ disease is especially problematic since many outbreaks of the illness occur in large facilities with complex water systems such as hotels.  According to the CDC, “More than 20% of Legionnaires’ disease cases reported to the CDC are travel-associated” (CDC 2014).  Travel-associated cases of this disease can be difficult to track and ultimately report because individuals typically do not begin to display symptoms until 2-14 days after their exposure to the bacteria.  By the time the incubation period has passed, the person has returned home and must retrace their steps to pinpoint the places they may have been infected with the bacteria.  Further, the European Centre for Disease Prevention and Control (ECDC) reports that “Legionnaires’ disease is still underascertained in most European countries since specific testing for Legionella in patients with pneumonia is not a routine procedure” (ECDC Surveillance Report 2009).

3. History of Litigation in the US

The U.S. legal system is very different from that of Brazil regarding potential claims for someone contracting Legionnaires’ disease. The U.S. legal system is based on tort or civil law rather than criminal law. This means that a Brazilian hotel, hospital, or even the Olympic Village (potential defendants) could be liable to an American citizen in an American court room for damages caused by the negligence of the defendant. A negligent act can be one of omission, I.e. where the defendant performs an act such as maintenance of the potable water system in an improper manner, or one of omission, where the defendant should have performed an act such as not having a water management plan but did not do so.

Juries are requested after finding that a defendant was negligent to award damages.  Damages include medical bills, lost wages, and most importantly, pain and suffering. Awards for Legionnaires’ disease cases can be in the hundreds of thousands of dollars, and indeed, millions of dollars. One case that my office is involved in is seeking punitive damages, whereby the victims of the defendant’s negligence are seeking a monetary award that will punish the defendant for its behavior.

Clients in the US are represented through a contingent fee agreement.  This means that a potential client only pays his or her lawyer if the lawyer is successful in obtaining monies for the client.  The lawyer also fronts any file costs, which could be extensive.

4. Jurisdiction

This part of the paper will address the question of jurisdiction, I.e. where a claim can be brought by an American citizen, by using three scenarios.  The first is the potential liability of American-owned corporations to American citizens.  The second is the liability of Brazilian corporations, including Brazilian subsidiaries of American corporations, to American citizens.  The third is the liability of Brazilian entities such as the Brazilian Olympic Organizing Committee to American citizens.

The case of Reid-Walden v. Hanson, 933F2d 1390 is instructive regarding the first scenario.  In that case, both the defendant and plaintiff were American citizens.  The plaintiff contended she was injured while vacationing at a hotel in Jamaica owned by the American defendant.  The U.S. Circuit Court held under these set of facts that the case should be tried in the United States and not Jamaica.

Another possibility would be an American travel agent being sued by an American (see Desiry v. Unique Vacations Inc. 2014 U.S. Dist Lexis 8826).  In that case, an American citizen was suing a Saint Lucien company and the travel agent who set up the trip.  The Court dismissed the Saint Lucien defendant, but required the American travel agent to stand trial.

As far as the last two scenarios are concerned, American case law would seem to indicate a Brazilian entity would not be accountable under most circumstances to an American citizen (see Daimler AG v. Bauman, 134 S. CT. 746).  This invariably would apply not just to Brazilian companies owned by Brazilians, but also to Brazilian subsidiaries of American companies.

5. Conclusion

The above discussion of potential liability of Brazilian entities to American citizens is at best a brief survey of American case law. By no means is this paper meant to be dispositive as to whether a Brazilian entity could be made to stand trial in an American court room for damages claimed by an American citizen for contracting Legionnaires’ disease in Brazil. The best way to prevent even the possibility of such an occurrence is to prevent the propagation of Legionella in the first place.

 

 

References

  1. Centers for Disease Control and Prevention. 2014. “Identify and Report Travel-Associated Legionnaires’ disease.” http://www.cdc.gov/legionella/health-depts/travel-identify-report.html
  2. ECDC Surveillance Report. 2009. “Legionnaires’ disease in Europe 2009.” http://ecdc.europa.eu/en/publications/publications/1109_sr_legionnaires’%20disease_europe_2009.pdf
  3. 2010. “Travel-associated Legionnaires’ disease in Europe, 2010.” http://www.eurosurveillance.org/ViewArticle.aspx?ArticleId=20498

 

 

About the Authors

Jules Zacher, Esquire has been engaged in the practice of law since 1974.  He currently represents victims of Legionnaires’ disease in federal and state courts across the country.  Mr. Zacher received his law degree and Master of Arts in Economics from Temple University.  He is a member of the American Association of Justice.

As of October 2012, he serves on the Board of Directors of the Council for a Livable World, the Advisory Board of the Center for Ethics and the Rule of Law at the University of Pennsylvania Law School, and is a member of various committees at the Philadelphia Racquet Club.  He is an avid reader of non-fiction, has lived and worked in Paris, France and Budapest, Hungary, and plays court tennis.  He was born in 1942 in Philadelphia, Pennsylvania.

Tawny Vu has a research, biology, and health policy background.  She received her Master of Public Health degree at Drexel University and Bachelor of Science in Biological Sciences at the University of California, Irvine.

Posted by jzacher">jzacher at 1:28 pm

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