Marler: The Legal Implications of E. coli Outbreaks at Petting Zoos and County Fairs

By Bill Marler on June 29, 2019

William “Bill” Marler is an American personal injury lawyer and food safety advocate. He is the managing partner of Marler Clark, a Seattle, Washington, based law firm that specializes in foodborne illness cases.

This morning I read that San Diego County health officials announced late Friday night that a 2-year-old child has died and three other children between 2 and 13 years old have become ill after having contact with animals at the San Diego County Fair. The County of San Diego Health and Human Services Agency reported four confirmed pediatric cases of Shiga-toxin-producing E. coli linked to contact with the animals.

It all brought back memories of another tragedy that happened almost four years ago across the country.

In September 2015 two children, Myles Herschaft and Colton Guay, were diagnosed with E. coli O111. The incubation period (i.e., the time between exposure to a bacteria and onset of symptoms) for Shiga toxin E. coli averages 2 to 5 days, (range 1 to 10 days). Colton Guay attended the Oxford Fair on September 16 and on September 19. He experienced symptom onset on September 25, developed hemolytic uremic syndrome and died. Myles Herschaft attended the fair on September 18 and experienced symptom onset on September 25 and developed hemolytic uremic syndrome but survived after weeks in kidney dialysis

Genetic testing showed that Myles Herschaft and Colton Guay were infected with an indistinguishable strain of E. coli O111 identified as PulseNet Pattern Identification Numbers XDX01.1540/EXDA26.1144. There were no other patients infected with this genetic strain occurring temporally in the United States. Given the rarity of strain XDX01.1540/EXDA26.1144, Myles Herschaft and Colton Guay shared a common exposure to this specific strain. Public health investigators identified two potential exposures, consumption of green grapes and attending the Oxford County Fair. Investigators ruled out green grapes as a source of infection after learning the grapes were prepackaged and distributed nationally. E. coli O111 was not found when samples were collected 18 days after the fair had ended and the grounds had been cleaned. It is noteworthy, however, that a different Shiga toxin E. coli, E. coli O100 was found in an environmental sample. There was no testing of animals that were exhibited at the Oxford County Fair.

Transmission of STEC from animal areas of fairgrounds is a well-known risk factor and multiple outbreaks have occurred in the US over the past 10 years – see www.fair-safety.com. Exposure to petting zoo animals and the petting zoo environment at the Oxford County Fair was the only plausible exposure to explain how Colton Guay and Myles Herschaft acquired their genetically indistinguishable E. coli O111 infections.

Drs. John Dunn and Kirk Smith were uniquely qualified to assess the facts of this case and acted as experts for the families of Myles Herschaft and Colton Guay. Co-authors of the “Compendium of Measures to Prevent Disease Associated with Animals in Public Settings, 2013” published by the National Association of State Public Health Veterinarians and the CDC, Dr. Dunn and Dr. Smith reviewed ME CDC outbreak investigation documents. Independently they reached the same conclusion that Colton Quay and Myles Herschaft became ill with STEC O111 as a result of attending the Oxford County Fair.

Dr. Smith opined that the source of the E. coli O111 infections experienced by Myles Herschaft and Colton Quay was more likely than not the Oxford County Fair. Dr. Smith also opined that the Fair did not implement at least several critical prevention measures recommended in long-standing, widely available, national recommendations to prevent illness in visitors to public animal contact venues. He asserted that had these critical recommendations been implemented at the Fair, more likely than not the boys’ infections would have been avoided.

Dr. Dunn concured stating that with regard to the outbreak of STEC O111 and subsequent HUS affecting Colton Guay and Myles Herschaft, “…with a reasonable degree of epidemiological certainty it is more likely than not that transmission occurred at the Oxford County Fair petting zoo.” He noted that information about measures taken to prevent disease transmission to fairgoers was limited but wrote that “applicable recommendations from the Compendium were not implemented or implementation was not clearly evident in the materials” he reviewed. He stated that in his opinion “to a reasonable degree of epidemiologic certainty, had the recommendations from the Compendium been implemented, it is more likely than not that the risk of STEC O111 infection for Colton Guay and Myles Herschaft would have been minimized and potentially prevented.”

Marler Clark represented both of the children affected by the outbreak, achieving settlements for both families.

Bill Marler has been involved in numerous E. coli outbreaks linked to petting zoos:

I have spoken on the risks posed by petting zoos since the early 2000’s:

2005 washington fair assoc from Bill Marler

The risk of transmission in exhibition settings of zoonotic diseases in general and E. coli O157:H7 in particular is not – or should not be – news. A survey as far back as 2003 of the literature, including CDC’s Morbidity and Mortality Weekly Report (MMWR), revealed at least 23 outbreaks of zoonotic disease, including illnesses from E. coli O157:H7, associated with animal exhibitions in the United Kingdom and the United States. These prior outbreaks included an E. coli O157:H7 outbreak associated with a county fair in Medina, Ohio, in August, 2000; two E. coli O157:H7 outbreaks in Pennsylvania in 2000 and 2001 associated with farm animals; 92 E. coli O157:H7 cases associated with the Wyandot County Fair in Ohio in September 2001; and the largest E. coli O157:H7 outbreak in Oregon history at the Lane County Fair in September 2002. And, over the last decade there is not a year that has gone by that many other outbreaks have left hundreds and hundreds sickened.

In addition, research has shown that E. coli O157:H7 is prevalent even among the prize livestock exhibited at agricultural fairs. A 2003 study on the prevalence of E. coli O157: H7 in livestock at 29 county and three large state agricultural fairs in the United States found that E. coli O157:H7 could be isolated from 13.8 percent of beef cattle, 5.9 percent of dairy cattle, 3.6 percent of pigs, 5.2 percent of sheep, and 2.8 percent of goats. Over 7 percent of pest-fly pools also tested positive for E. coli O157:H7.

Against this backdrop, the CDC published recommendations for reducing the risk that enteric pathogens will be transmitted at petting zoos, open farms, and animal exhibits. The most updated version of these recommendations can be found on CDC’s MMWR Web site. These recommendations arise out of several documented outbreaks in which enteric pathogens were passed to humans in such settings. Draft recommendations were published in MMWR on April 20, 2001; readers were invited to submit comments and suggestions; and the final recommendations were posted on the Internet on October 26, 2001. The recommendations encapsulated on the CDC Web site and in MMWR were created by the National Association of State Public Health Veterinarians (NASPHN). Many of the recommendations are common sense and most, if not all were likely ignored by those involved with the Milk Maker’s Fest:

Venue operators should take the following steps:

Become familiar with and implement the recommendations in this compendium.
Consult with veterinarians, state and local agencies, and cooperative extension personnel on implementation of the recommendations.
Become knowledgeable about the risks for disease and injury associated with animals and be able to explain risk-reduction measures to staff members and visitors.
Be aware that direct contact with some animals is inappropriate in public settings, and this should be evaluated separately for different audiences.
Develop or obtain training and educational materials and train staff members.
Ensure that visitors receive educational messages before they enter the exhibit, including information that animals can cause injuries or carry organ- isms that can cause serious illness.
Provide information in a simple and easy-to-under- stand format that is age and language appropriate.
Provide information in multiple formats (eg, signs, stickers, handouts, and verbal information) and languages.
Provide information to persons arranging school field trips or classroom exhibits so that they can educate participants and parents before the visit.

Venue staff members should take the following steps:

Become knowledgeable about the risks for dis- ease and injury associated with animals and be able to explain risk-reduction recommendations to visitors.
Ensure that visitors receive educational messages regarding risks and prevention measures.
Encourage compliance by the public with risk- reduction recommendations, especially compliance with hand-washing procedures as visitors exit animal areas.

Recommendations for nonanimal areas are as follows:

Do not permit animals, except for service animals, in nonanimal areas.
Store, prepare, serve, or consume food and beverages only in nonanimal areas.
Provide hand-washing facilities and display hand- washing signs where food or beverages are served.
Entrance transition areas should be designed to facilitate education.
Post signs or otherwise notify visitors that they are entering an animal area and that there are risks associated with animal contact.
Instruct visitors not to eat, drink, smoke, and place their hands in their mouth, or use bottles or pacifiers while in the animal area.
Establish storage or holding areas for strollers and related items (eg, wagons and diaper bags).
Control visitor traffic to prevent overcrowding.
Exit transition areas should be designed to facilitate hand washing.
Post signs or otherwise instruct visitors to wash their hands when leaving the animal area.
Provide accessible hand-washing stations for all visitors, including children and persons with disabilities. Position venue staff members near exits to encourage compliance with proper hand washing.

Recommendations for animal areas are as follows:

Do not allow consumption of food and beverages in these areas.
Do not allow toys, pacifiers, spill-proof cups, baby bottles, strollers, or similar items to enter the area.
Prohibit smoking and other tobacco product use.
Supervise children closely to discourage hand-to- mouth activities (eg, nail biting and thumb sucking), contact with manure, and contact with soiled bedding. Children should not be allowed to sit or play on the ground in animal areas. If hands become soiled, supervise hand washing immediately.
Ensure that regular animal feed and water are not accessible to the public.
Allow the public to feed animals only if contact with animals is controlled (eg, with barriers).
Do not provide animal feed in containers that can be eaten by humans (eg, ice cream cones) to decrease the risk of children eating food that has come into contact with animals.
Promptly remove manure and soiled animal bedding from these areas.
Assign trained staff members to encourage appropriate human-animal interactions, identify and reduce potential risks for patrons, and process reports of injuries and exposures.
Store animal waste and specific tools for waste removal (eg, shovels and pitchforks) in designated areas that are restricted from public access.
Avoid transporting manure and soiled bedding through nonanimal areas or transition areas. If this is unavoidable, take precautions to prevent spillage.
Where feasible, disinfect the area (eg, flooring and railings) at least once daily.
Provide adequate ventilation both for animals and humans.
Minimize the use of animal areas for public activities (eg, weddings and dances). • If areas previously used for animals must be used for public events, they should be cleaned and disinfected, particularly if food and beverages are served.

In addition, the Pennsylvania legislature enacted a law mandating standards for animal exhibition sanitation. The Pennsylvania law requires animal exhibit operators to “promote public awareness of the risk of contracting a zoonotic disease” by posting notices. The law further requires adequate hand-cleansing facilities and prohibits the exhibition of any animal not properly cared for by a veterinarian.

Thus, even before the outbreaks in North Carolina and Florida in the fall and winter of 2004-2005, the risk of disease transmission and the means of reducing that risk were well known. This common knowledge forms the basis of legal liability for both the private and governmental entities that operate animal exhibitions. While laws vary from state to state, the liability of these entities to those sickened through exposure to animals on site would be based in the premises of both liability and negligence.

Under premises liability law, the entity or entities responsible for managing an animal exhibition have a duty of care to those it invites onto the premises. This duty includes the responsibility to adequately reduce risks the entity is or should be aware of. The duty also carries a responsibility to warn fairgoers of risks present at the exhibition.

The principles of negligence also revolve around the risks to fairgoers that animal exhibitors know of or reasonably should know of. To successfully bring a negligence claim, a sickened person would need to show that the actions of an animal exhibitor fell below a reasonable standard of care in the operation of the exhibit. Failing to implement the well-established recommendations of the CDC and NASPHV constitutes falling below that standard of care.

Both bases for liability on the part of animal exhibitors-premises liability and negligence-carry with them a burden of education on the part of the exhibitor. Because the law holds people to a standard of what they reasonably should know, ignorance of the risks involved is not an effective defense. The law thus provides no impetus to stray from the course of action that is best for both customers and exhibitors in the first place-recognizing the risk and taking steps to reduce it.

Following the E. coli O157:H7 outbreak in North Carolina, the Terry Sanford Institute of Public Policy at Duke University contracted with the North Carolina Department of Health and Human Services to develop recommendations on regulating petting zoos. The researchers concluded:

In response to the largest outbreak of Escherichia coli (E. coli) in North Carolina history, we recommend that the North Carolina Department of Health and Human Services (DHHS) issue guidelines and pursue legislation that will control public contact with animals, inform the public of risks related to animal contact, provide transition areas, regulate animal care, and license petting zoos.

The North Carolina Legislature subsequently adopted “Aedin’s Law,” named after a young child who was severely injured in the outbreak. According to the preamble of the bill, the child was hospitalized for 36 days and will suffer lifelong injury from complications of HUS. Aedin’s Law requires that animal exhibitors acquire a public permit. The bill further requires the North Carolina State Board of Agriculture to adopt regulations in line with those of the Duke University study and CDC.

There are benefits to continuing the tradition of animal exhibits – it is a recreational and educational link to our country’s ongoing agricultural heritage. Slowly heeding the hard lessons learned, private, public, and legal forces are at work to reduce the risks associated with this pastime. Animal exhibitors are unwise to view these changes as a threat, or those working for change as enemies. Likewise, it is shortsighted to resist the recommendations and guidelines offered to make the animal exhibits safer. The long-term existence of animal exhibits to the public cannot be assured in an environment that permits the possibility of large-scale, life-threatening disease outbreaks like those that occurred in North Carolina and Florida. And, the best way to keep the lawyers out of it is to keep the children safe.

References

See E. coli O157:H7 outbreak in Whatcom County, Washington Final Investigation Summary – http://wa-whatcomcounty.civicplus.com/CivicSend/ViewMessage/Message?id=5760

See http://www.fair-safety.com/fair-outbreaks.htm

E. Keen, T.E. Wittum, J.R. Dunn, J.L. Bono, and M.E. Fontenot. 2003. “Occurrence of STEC O157, O111, and O26 in Livestock at Agricultural Fairs in the United States,” Proc. 5th Int. Symp. on Shiga Toxin-Producing Escherichia coli Infections, Edinburgh, UK 22 (2003) – http://www.ars.usda.gov/research/publications/Publications.htm?seq_no_115=144426

National Association of State Public Health Veterinarians, Inc. (NASPHV). “Compendium of Measures to Prevent Disease Associated with Animals in Public Settings – http://nasphv.org/documentsCompendiumAnimals.html

CDC, “Notice to Readers: Availability of Final Recommendations on Reducing the Risk for Transmission of Enteric Pathogens at Petting Zoos, Open Farms, Animal Exhibits, and Other Venues,” 50 MMWR Weekly, 928 (October 25, 2001) – http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5042a6.htm

Outbreak Response and Surveillance Unit, Recommendations: Farm Animal Contact, (Atlanta, CDC September 2002) – http://www.cdc.gov/foodborneoutbreaks/publication/recomm_farm_animal.htm

See 3 Pa. C.S. [section]2501 et seq

Dustyn Baker, Tugba Gurcanlar, Emily Hildebrand, Matthew Perault, & Kuang-zhen Wu, “E. coli Outbreak Creates Need for Government Regulation” (Terry Sanford Institute of Public Policy May 2005) – http://www.fair-safety.com/ecoli-public-policy.pdf