We have a romaine E. coli case in Idaho of a young man who suffered a severe case of hemolytic uremic syndrome (HUS), was hospitalized for a month and incurred nearly $250,000 in medical expenses and lost wages. He has a risk of future kidney complications, (including a transplant), but not likely to meet the legal standard of more likely than not – greater than 50 percent. He did suffer seizures because of the HUS, but it is well maintained on medications, and it is hopeful, over time, that he may well be weaned off the medications and be able to drive again. Under Idaho law he will be able to recover wage loss and medical expenses (economic damages) and a capped amount for nonmonetary losses (pain and suffering) – Well, unless a court and a jury determines that it is “reckless misconduct” to grow, process and sell romaine lettuce.

Sometimes bad facts make good law – recall the lawsuit against the auditor in the Jensen Farms Listeria cantaloupe case?

Idaho Code § 6-1603 established in 2003 a cap of $250,000 for noneconomic damages, damages that are subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party; emotional distress; loss of society and companionship; loss of consortium; or destruction or impairment of the parent-child relationship. Idaho Code § 6-1603(1) also provides for an annual adjustment tied to the increase or decrease of the annual wage; for 2018, the effective cap was established at $357,210.62.

The full text of the statute reads as follows:

6-1603.  LIMITATION ON NonECONOMIC DAMAGES. (1) In no action seeking damages for personal injury, including death, shall a judgment for noneconomic damages be entered for a claimant exceeding the maximum amount of two hundred fifty thousand dollars ($250,000); provided, however, that beginning on July 1, 2004, and each July 1 thereafter, the cap on noneconomic damages established in this section shall increase or decrease in accordance with the percentage amount of increase or decrease by which the Idaho industrial commission adjusts the average annual wage as computed pursuant to section 72-409(2), Idaho Code.

(2)  The limitation contained in this section applies to the sum of: (a) noneconomic damages sustained by a claimant who incurred personal injury or who is asserting a wrongful death; (b) noneconomic damages sustained by a claimant, regardless of the number of persons responsible for the damages or the number of actions filed.

(3)  If a case is tried to a jury, the jury shall not be informed of the limitation contained in subsection (1) of this section.

(4)  The limitation of awards of noneconomic damages shall not apply to:

(a)  Causes of action arising out of willful or reckless misconduct.

(b)  Causes of action arising out of an act or acts which the trier of fact finds beyond a reasonable doubt would constitute a felony under state or federal law.

Setting aside the fairness of capping noneconomic damages at $357,210.62 for a case as serious as this one, the real issue is whether the cap applies at all under section (4)(a) above? In 2018 was it “reckless misconduct” to grow, process, source and sell romaine lettuce from Yuma?

Certainly, as well cited above, leafy greens have been a source of E. coli-related illnesses for decades, and there have been concerns raised about lettuce grown in the Yuma region.  The CDC reports as of May 20, 2010, a total of 26 confirmed and 7 probable cases related to an E. coli O145 outbreak have been reported from 5 states since March 1, 2010, linked to shredded romaine grown in Yuma.[1] In the FDA’s “Environmental Assessment Report in December 2010,” the authors determined: The R.V. park is a reasonably likely potential source of the outbreak pathogen based upon the evidence of direct drainage into the lateral irrigation canal; the moist soil in this drainage area; the multiple sewage leach systems on the property; the presence of other STEC found in the lateral irrigation canal and in the growing fields of the suspect farm; and the section of the lateral canal downstream from the R.V. park supplies water to only one other farm in addition to the suspect farm.

Two pumps are located on the main Wellton canal near the lateral canal split that supplies water to fields of the suspect farm; one gasoline powered pump on a trailer and one permanent electric pump with an attached hose. The electric pump supplies canal water to an attached open-end hose. The site is not secured from vehicles and the hose pump is also unsecured. At the time of this investigation there were people living in recreational vehicles on undeveloped land within one mile of the hose pump. The fact that this area is open to vehicles and the pump and hose are unsecured make it possible for an R.V. owner to dump and rinse out their R.V. septic system into the main Wellton canal at the lateral canal split that supplies the farm. The ground near the hose pump shows erosion evidence of drainage into the Wellton canal. Soil collected from this erosion site tested positive for other Stx2-producing STEC but did not match the outbreak strain.

In a 2009 “Survey of seleced Bacteria in Irrigation Canal Water – Third Year” written by Jorge M. Fonseca, he correctly predicted the human and industry problems that were likely to plague the Yuma lettuce growers:

Despite the fact that no Arizona lettuce grower has been involved in any contaminated-lettuce outbreak, it is of paramount importance to determine the reasons why Arizona lettuce is regarded as safe. This can help lower possibilities of any emerging problem and prevent a catastrophic damage to the industry, as it has occurred in other regions when no control was taken to reduce risks of contaminated product.

A PowerPoint done by Dr. Fonseca again illustrated the varying risks of lettuce production in Yuma.  An example of a few of his points of concern:

And, then the 2018 romaine lettuce E. coli outbreak struck, sickening hundreds in the United States and Canada with dozens suffering from acute kidney failure with five reported deaths.  once again, the Wellton Irrigation Canal was the focus of attention in the “Memorandum to File on the 2018 Environmental Assessment”:

During this EA, three samples of irrigation canal water collected by the team were found to contain E coli O157:H7 with the same rare molecular fingerprint (using whole genome sequencing (WGS)) as the strain that produced human illnesses (the outbreak strain). These samples were collected from an approximate 3.5-mile stretch of an irrigation canal in the Wellton area of Yuma County that delivers water to several of the farms identified in the traceback investigation as shipping romaine lettuce that was potentially contaminated with the outbreak strain. The outbreak strain was not identified in any of the other samples collected during this EA, although other pathogens of public health significance were detected.

Not surprisingly, the FDA in its full “Environmental Assessment of Factors Potentially Contributing to the Contamination of Romaine Lettuce Implicated in a Multi-State Outbreak of E. coli O157:H7,”[2] concluded that the risk of environmental contamination was in fact a well-know and long-standing risk:

Food safety problems related to raw whole and fresh-cut (e.g., bagged salad) leafy greens are a longstanding issue. As far back as 2004, FDA issued letters to the leafy greens industry to express concerns about continuing outbreaks associated with these commodities. FDA and our partners at CDC identified 28 foodborne illness outbreaks of Shiga-toxin producing E. coli (STEC) with a confirmed or suspected link to leafy greens in the United States between 2009 and 2017. This is a time frame that followed industry implementation of measures to address safety concerns after a large 2006 outbreak of E. coli O157:H7 caused by bagged spinach. STEC contamination of leafy greens has been identified by traceback to most likely occur in the farm environment.

Contamination occurring in the farm environment may be amplified during fresh-cut produce manufacturing/processing if appropriate preventive controls are not in place. Unlike other foodborne pathogens, STEC, including E. coli O157:H7, is not considered to be an environmental contaminant in fresh-cut produce manufacturing/processing plants.

Well-established reservoirs for E. coli O157:H7 are the intestinal tract of ruminant animals (e.g., cattle, goats, and deer) that are colonized with STEC and shed the organism in manure. Ruminant animals colonized with STEC typically have no symptoms. In contrast, human infection with E. coli O157:H7 usually produces symptomatic illness often marked by severe, often bloody, diarrhea; severe adverse health outcomes or even death can result. Humans shed E. coli O157:H7 in the stool while ill and sometimes for short periods after symptoms have gone away, but humans are not chronic carriers. Various fresh water sources, including municipal well, and recreational water, have been the source of E. coli O157:H7 infections in humans, as has contact with colonized animals at farms or petting zoos. However, most E. coli O157:H7 infections in humans occur from consuming contaminated food.

In its summary of its environmental findings (also summarized in a Nov. 1, 2018, to public officials) the “FDA [in part] identified the following factors and findings as those that most likely contributed to the contamination of romaine lettuce from the Yuma growing region with E. coli O157:H7 that caused this outbreak”:

• FDA has concluded that the water from the irrigation canal wher the outbreak strain was found most likely led to contamination of the romaine lettuce consumed during this outbreak.
• There are several ways that irrigation canal water may have come in contact with the implicated romaine lettuce including direct application to the crop and/or use of irrigation canal water to dilute crop protection chemicals applied to the lettuce crop, either through aerial or ground-based spray applications.
• How and when the irrigation canal became contaminated with the outbreak strain is unknown. A large animal feeding operation is nearby but no obvious route for contamination from this facility to the irrigation canal was identified. Other explanations are possible although the EA team found no evidence to support them.

Idaho Code Section 6-1603(4)(a) states that the statutory limit on non-economic damages in tort actions seeking damages for personal injury or death does not apply in cases wher the cause of action arises “out of willful or reckless misconduct.” Idaho Pattern Civil Jury Instruction 2.25 provides the definition of “willful and wanton,” and notes that there is no distinction between “reckless” and “willful and wanton.” Hennefer v. Blaine County Sch. Dist. 61 158 Idaho 242, 248 (2015). According to the IDJI, “[t]he words ‘willful and wanton’…mean more than ordinary negligence. The words mean intentional or reckless actions, taken under circumstances wher the actor knew or should have known that the actions not only created an unreasonable risk of harm to another, but involved a high degree of probability that such harm would actually result.” IDJI 2.25

While Idaho considers reckless or willful misconduct “simply a degree of negligence…that involves both intentional conduct and knowledge of a substantial risk of harm,” its courts have further elaborated that while “use of the words ‘intentional’ and ‘knowledge’ might indicate a purely subjective standard for recklessness…there is an objective element to the recklessness standard.” Hennefer 158 Idaho at 248. Thus, while reckless misconduct can consist of a conscious choice of a course of action with knowledge of the serious danger to others, (subjective), it can also consist of a conscious choice of a course of action with knowledge of facts that would disclose the danger to any reasonable man (objective). Id. The serious danger mentioned in the standard is one that “involves a risk substantially greater in amount than that which is necessary to make the conduct negligent.” Id. Accordingly, a jury need only find that a defendant should have known that his actions created a high probability that harm would actually result; such a finding is considered sufficient to meet the standard espoused by Idaho Code section 6-1603. Id. at 249.

Using this standard, there is substantial evidence supporting the conclusion that growing, processing, sourcing, and selling romaine lettuce from Yuma constituted reckless misconduct. It is widely known that STEC infections are life-threatening to humans and the most common cause of infection is consumption of contaminated food. Additionally, STEC outbreaks associated with leafy greens are unsettlingly common occurrences as evidenced by the 28 identified outbreaks occurring between 2009 and 2017. The FDA, CDC, and other governmental agencies have sought to combat the frequency of these occurrences by issuing various communications with state officials, publishing the results of its investigations into the outbreaks, and advising on best practices to avoid such outbreaks.

Among the FDA’s many suggestions, it recommended that the leafy green industry should assess the need for and develop commodity-specific procedures, policies, and best practices to enhance the safety of leafy greens, including, at a minimum, address (1) how agricultural water directly contacting harvestable portions of the crop can be guaranteed safe and adequate for its intended use; (2) how risks related to land uses near or adjacent to growing fields that may contaminate agricultural water or leafy green crops directly (e.g., nearby cattle operations or dairy farms, manure, or composting facilities) can be assessed and mitigated; (3) how food safety procedures, policies, and practices are developed and consistently implemented on farms as well as regularly verified to minimize the potential for contamination and/or spread of human pathogens; and (4) how a root cause analysis should be performed to determine the likely source of any contamination by a foodborne pathogen identified in the agricultural environment, agricultural water, or in the fresh-cut ready-to-eat produce.

Given the available knowledge regarding STEC, its transmission to and effect on humans, as well as the nature—and demonstrated prior history— of STEC transmission from ruminant animal operations to leafy greens and the repeated government advisory and caution of that danger, the undeterred insistence of growing, processing, sourcing, and selling romaine lettuce from a region repeatedly plagued by STEC contamination and subsequent outbreaks is a considerably reckless activity. The findings from the 2018 romaine lettuce outbreak considerably enhance the veracity of that conclusion. Despite all the aforementioned knowledge, the source of the 2018 outbreak that affected hundreds and killed five was found to be a contaminated irrigation canal that supplied water to several farms identified in the traceback investigation who were downstream from a sizeable cattle operation. Such undeterred action in spite of the substantial available knowledge on the risks developed and disseminated over the years fits squarely within Idaho’s characterization of reckless misconduct and should accordingly be treated as such.