Source: Indoor Environment Connections, April 2012
By: Thomas P. Bernier and Susan E. Smith, Segal McCambridge Singer & Mahoney, Ltd., Baltimore MD
Legionnaires’ disease is a serious, potentially lethal, type of pneumonia that is caused by bacteria of the genus Legionella. The Centers for Disease Control and Prevention (CDC) estimate that 8,000 to 18,000 persons are hospitalized each year with the disease. There were 3,522 reported cases in 2009, the most since 1976, when the CDC first required case reporting. The incidence of reported Legionnaires’ disease cases in the United States tripled between 2000 and 2009. As investigation and reporting have become more sophisticated, public awareness of this disease is growing, and legal action by those alleging to have contracted the disease is on the rise. Imminent action by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (“ASHRAE”)—adoption of Standard 188P—will make it easier for those persons to prove the legal liability of those involved with the ownership, design, construction, installation, management, operation, maintenance, and servicing of the premises where outbreaks occur.
Legionnaires’ disease is commonly associated with cooling towers because the first outbreak, in 1976, was traced to a cooling tower in the air-conditioning system at the Bellevue Stratford Hotel in Philadelphia during an American Legion convention. Subsequent outbreaks have been traced to building water systems, indoor spas and pools, whirlpool spas, humidifiers, and ventilation and cooling systems. Decorative water fountains, including water walltype fountains, were implicated in two recent outbreaks, even though regular cleaning, flushing, and disinfection protocols were in place. Hands-free, or “electronic-eye”, faucets, often found in hospitals and other healthcare facilities, have been identified as a potential exposure source. Although no disease transmissions or outbreaks have been traced to hands-free faucets, an investigation conducted by the Johns Hopkins Hospital showed that water from such faucets was more likely to be contaminated with Legionella. (Electronic-eye Faucets: Help or Hindrance to Infection Control and Prevention, presented at the 2011 Annual Scientific Meeting of the Society for Healthcare Epidemiology in America, held in Dallas, Texas.)
The owners and managers of premises where outbreaks occur are frequently the targets of legal action by those alleging to have contracted the disease because of the broad legal duties they bear. Persons or entities responsible for the development, design, engineering, construction, manufacture, installation, maintenance and repair of the structures or building systems identified as the source of the outbreak also have potential legal liability. Those involved with the ownership, operation, management and maintenance of hotels, hospitals, senior housing facilities, and condominiums have recently faced legal action associated with Legionnaires’ disease outbreaks.
The legal exposure associated with a Legionnaires’ disease outbreak can be substantial. Outbreaks can affect dozens, or even hundreds, of people. The CDC has reported death rates between 20 and 40 percent. Many of those infected who do recover still spend weeks, if not months, in the hospital and may be left with permanent impairment. The serious personal injury or death caused by this disease makes proof of extensive compensatory damages simple. In 2006, a jury returned a $193 million verdict against a manufacturer of equipment used for indoor spas and pools and other building-associated equipment implicated in several Legionnaires’ disease cases. A similar case relating to equipment use resulted in a jury award of $9.6 million. Several wrongful death lawsuits recently settled out-of-court, each for tens of millions of dollars with stipulations that details remain confidential.
In addition to potential exposure to multimillion dollar legal action, the investigation and remediation of a Legionnaires’ disease outbreak often results in temporary closure of the affected building, leading to substantial business interruption losses and negative publicity. An outbreak at the EPIC hotel in Miami, Florida in 2009 reportedly resulted in revenue losses of $200,000 per day. (Across the USA News from Every State, USA Today, Dec. 21, 2009, at 14A.)
Legionellae are waterborne bacteria that are ubiquitous in water in the environment. They are found in many different water sources. Legionellae have proven to be more tolerant to normal chlorine levels than other bacteria and so they are often present in municipal water supplies and potable water distribution systems. The mere presence of the bacteria in water or on a fixture or device, however, is not sufficient to cause a person to contract the disease. Direct physical contact with water that contains the bacteria does not put a person at risk of contracting the disease. Rather, the affected water must become aerosolized (i.e., fine droplets, mist, spray, steam, vapor). A person who inhales aerosolized water that contains virulent forms of Legionellae in an amount sufficient to overwhelm his or her natural resistance is at risk of contracting the disease. Certain individuals, such as smokers, the elderly, those with lung or kidney disease, diabetes, cancer, and weakened immune systems because of disease or medication, are more vulnerable to contracting the disease following exposure to contaminated, aerosolized water. The levels of Legionellae typically found in water, including chlorinated municipal water, are generally not sufficient to cause a person without particular susceptibility to contract the disease. Certain conditions, including stagnation and water temperatures in the range of 68° Fahrenheit to 126° Fahrenheit, cause the background levels of bacteria in water to amplify to a level sufficient to constitute a health risk to persons who inhale aerosolized, contaminated water. The presence of sediment or other foreign material in water also promotes biofilm development, thus enhancing bacterial growth.
When biofilm within a building water system is colonized by Legionellae, the bacteria can be distributed throughout the system and aerosolized at distribution points such as faucets, showerheads, decorative fountains, swimming pools, whirlpool spas, humidifers, misting equipment, evaporative condensers, and medical respiratory devices.
The New ASHRAE Standard 188 Establishes Protocols to Prevent Outbreaks
In the past, building owners, managers, and facility maintenance professionals have been uncertain as to the duties and obligations that they bear to control the growth of Legionellae in building water systems. Government agencies such as the U.S. Environmental Protection Agency (EPA), United States Occupational Health and Safety Administration (OSHA), the Centers for Disease Control and Prevention (CDC), and the Department of Veteran Affairs, and industry groups such as The Association of Water Technologies (AWT) and American Society of Plumbing Engineers (ASPE), and the Joint Commission on Accreditation of Health Care Organizations (JCAHCO), have published guidelines, position statements, and articles relating to Legionellae control. However, these materials are advisory in nature. They do not specifically impose requirements on building owners, property managers or facility maintenance professionals. They generally have not been regarded as establishing a standard of care applicable to such persons or entities. For example, in Flaherty v. Legum & Norman Realty, Inc., No. 1:05-1492, 2007 WL 4694346, at *14-16 (E.D. Va., Jan. 4, 2007), aff’d, 281 Fed.Appx. 232 (4th Cir. 2008), a lawsuit arising from a Legionnaires’ disease fatality allegedly traced to the water system in a high-rise condominium, the court rejected the plaintiffs’ contention that OSHA guidelines and previous publications and guidelines by ASHRAE, alone, established the standard of care that the property  management company was bound to follow in operating and maintaining the building’s water system. The court reasoned that these materials did not specifically apply to property management companies. The court explained that this evidentiary deficiency could have been overcome had an industry expert testified that it was reasonable and appropriate for the property management company to follow the guidelines. Id. at *15.
The uncertainty regarding the applicable standard of care relating to the operation and maintenance of building water systems will change soon because ASHRAE is expected to adopt a new standard—Standard 188P, Prevention of Legionellosis Associated With Building Water System—in the second quarter of 2012. Some states may actually codify the standard into law.
Standard 188P establishes clear guidelines as to what constitutes proper maintenance of a building’s water system to control Legionellae. It will be the first U.S. risk management standard that sets forth specific requirements for prevention of Legionnaires’ disease associated with building water systems in all types of buildings. It is intended for use by those involved in the ownership, design, construction, installation, management, operation, maintenance and servicing of centralized industrial and commercial building water systems. Standard 188P is a Legionella risk management process based on the internationally recognized Hazard Analysis and Critical Control Point (HACCP) process that requires building owners and managers to develop, implement, and periodically validate a building water system maintenance protocol. Compliance with the standard requires first that a building be surveyed to determine its risk characterization. This is a qualitative estimation of the risk associated with the particular building is based on the specific characteristics of the building and its water systems. Standard 188P describes how this initial survey is to be conducted. The survey considers risk factors such as the use of centralized water heaters, the number of stories, whether the building is an inpatient healthcare facility, the age of the occupants and the presence of whirlpools, spas, ornamental fountains, misters, air washers, or humidifiers. Based upon that risk characterization, the building’s facilities management is required to comply with certain provisions of the standard. If there are no risk factors present, the standard requires only that the survey be repeated once a year or upon a change in the characteristics of the building. If the survey reveals that risk factors are present, the standard requires that HACCP risk management protocols be implemented. These include seven principles:

1. Conduct a hazard analysis.
2. Determine the critical control points (CCP).
3. Establish critical limits for each critical control point.
4. Establish a system to monitor control of the critical control points.
5. Establish a corrective action to be taken when monitoring indicates that a particular CCP is not under control.
6. Establish procedures for verification to confirm that the HACCP system is working effectively.
7. Establish documentation concerning all procedures and records appropriate to these principles and their application.

Standard 188P explains in great detail how the HACCP plan should be drafted and implemented, and it specifically discusses plans for potable water systems, cooling towers and evaporative condensers, whirlpool spas, decorative fountains and air coolers, humidifiers and air washers.
ASHRAE has long been at the forefront of Legionella awareness. In June 1998, it published its legionellosis Position Statement which concluded, among other things, that good operations, maintenance, and housekeeping procedures that prevent amplification and dissemination of Legionella should be formulated and implemented before systems are operated. In May 2000, following 6 years of committee effort, ASHRAE published Minimizing the Risk of Legionellosis Associated with Building Water Systems. Commonly referred to as ASHRAE Guideline 12-2000, this Guideline provides environmental and operational guidance in the safe operation of building water systems, particularly, nonresidential building systems and centralized systems in multi-family residential buildings. The Guideline specifically focuses on potable water systems, cooling towers and evaporative condensers. ASHRAE has also consistently addressed issues related to Legionnaires’ disease through articles published in its peer reviewed trade journal; The ASHRAE Journal, such as Cooper, Barnes & Myers’ April, 2004 article entitled; Assessing Risk of Legionella; or David F. Geary’s September, 2000 contribution, New Guidelines On Legionella.
If presented as a standard of care by a savvy plaintiff’s lawyer, Standard 188P may be viewed by a court as particularly reasonable and reliable. ASHRAE’s expertise on the control of Legionellae and its long-standing involvement with the issue may bolster Standard 188P’s credibility as a standard of care. Additionally, Standard 188P has been carefully drafted to provide specific protocols to be followed by building owners and property managers, thereby ameliorating the concern of the Flaherty court over the vagueness of prior guidelines.
The Primary Purpose of ASHRAE Standard 188P is Prevention
Prevention is the goal of Standard 188P. When the guidelines are followed, building owners and managers (in conjunction with their maintenance staff or contractors) will be engaged in regular water system maintenance and other prevention efforts, and the effectiveness of such efforts will be regularly assessed. Lack of compliance, or improper compliance, with Standard 188P could expose the owners, managers, and maintenance contractors associated with the building where an outbreak occurs to significant legal liability, as non-compliance with the standard could be used as evidence of negligence.
A proactive approach to prevention makes sense because the costs of an outbreak, not to mention the risks and costs of legal action, can be substantial. If there is a confirmed outbreak of Legionnaires’ disease, local public health authorities generally will initiate an investigation to identify the root cause. (Suspected or confirmed cases of Legionnaires’ disease must be immediately reported to public health authorities, under CDC mandates.) Those authorities often issue directives to the owners and managers of the building where exposure occurred, including orders to engage the services of a qualified environmental remediation professional with expertise in Legionella control. An environmental remediation often must be undertaken, at significant expense.
When it takes effect, Standard 188P will fundamentally alter the obligations of building owners and managers and those involved with the maintenance and servicing of centralized industrial and commercial building water systems. Well-advised building owners and managers, and maintenance professionals, will update their maintenance programs to conform with Standard 188P, not only to prevent Legionnaires’ disease outbreaks, but also to mitigate the risk of the legal action that often follows.
Thomas P. Bernier and Susan E. Smith are trial attorneys with the law firm of Segal McCambridge Singer & Mahoney, Ltd. in Baltimore, Maryland. The firm has offices in Illinois, Maryland, Michigan, New Jersey, New York, Pennsylvania, and Texas. Segal McCambridge attorneys specialize in representing defendants in commercial cases, consumer litigation, general liability, products liability and toxic tort/hazardous substances litigation, including asbestos, mold, carbon monoxide, welding rod, silica, and mercury lawsuits. Mr. Bernier and Ms. Smith have significant, recent experience representing clients in complex, multi-party Legionnaires’ disease lawsuits. They can be reached at 410-779-3960.