When an outbreak of legionnaires disease (also known as legionellosis or Legion fever) occurs there is generally a report of the events, where the Center for Disease Control is contacted and the source of the exposure is identified. While there are cases of outbreaks numbering into the hundreds of patients, most commonly the identified persons infected are smaller in numbers.
Given the data that has been collected over the past 35 years, experts estimate that for every person infected it is likely that many more have been exposed to the disease. This is especially true in a high-traffic area, like a hotel setting, where the high number and frequency of guests are using the pools and hot tubs during their stay.
In the realm of the Legionnaires’ claims process and litigation, an interesting issue arises: In the event that a limited outbreak of legionnaires disease occurs, should those that are likely exposed to the disease be notified and/or should they be included in any litigation through the class action procedures?
This issue is being developed in a Louisiana Federal Case presently. In the case of Paternostro v. Choice Hotels, five individuals contracted the disease allegedly from the Choice Hotel. One of the guests died from the disease, and the others were treated for legionnaires disease.
Included in the allegations is a claim that the hotel created a “Public Health Hazard” that exposed many individuals to legionella. Those non-employee individuals make up the class that the plaintiffs seek to certify. See the amended petition which includes the class action claims.
Many water sources contain legionella bacteria, and as result, many persons are exposed to the legionella. However, in most natural settings the levels are not high enough to be dangerous. The risk of exposure increases when high concentrations of the organism grow in water systems. This is most prevalent in domestic water sources that require maintenance and treatment, such as pools, hot tubs, plumbing systems and cooling towers. Additionally the risk of contracting the disease increases with elderly persons and those with weak immune systems. One healthy person may not contract the disease, while the person next to them with a low immune condition contracts the disease.
One reason for the class action argument may be to preserve the claims for those that have contracted the disease, but have not yet made the connection to the exposure from the hotel. Another reason may be that some of the potential class members may have had some limited symptoms of Legionnaires’ disease, and believed it to be a normal cold or some type of bronchitis.
With that in mind, in the Paternostro v. Choice Hotels case, the potential plaintiffs would be determined through hotel guests lists for a little over a year of exposure time in 2012. This may open a significant issue in discovery if the court allows the parties to notify the hotel guests of the outbreak.
If in fact any of the potential class members were actually diagnosed with legionellosis, then the CDC would have recorded the event, and conducted an investigation that likely would have traced the location of the outbreak to the hotel.
In any event, a case that focused originally on the exposure of five (5) individuals has now mushroomed into what could be thousands of claimants.
As this cases evolves, I’ll be interested to see how things play out, when it comes to forming the basis of a class action claim. Because of the nature of how Legionnaires’ disease affects individuals differently, just because a person may have been exposed to the legionella bacteria, does not necessarily mean that they have become sick and actually been injured. This fact may go to the levels of individual recovery and not whether they may have a claim as a class member.
Legionnaires’ disease is not like asbestosis or mesothelioma, which have a dormant stage. With a Legionnaires’ outbreak, an individual contracts the disease and starts showing symptoms in a short period of time, within the days or weeks of the exposure. So there may not be a need to preserve the claims for those that are not yet aware of contracting the disease, as described above.
In any case, I’ll continue to follow the progress of this case and the novel approach of pursuing a class action for a Legionnaires’ outbreak in general.
