Texas Appellate Court Upholds Big Enterovirus Verdict - We Don't Know Why
Before we get to why we think the dissent got it right in Scott's Marina v. Brown assume the following:
1) plaintiff contracted an enterovirus infection resulting first in pharyngitis, then in meningitis and finally in Lemierre's syndrome - an extrordinarily rare and potentially fatal complication following a throat infection (Lemierre's is invariably blamed on Fusobacterium necrophorum or its cousins but go with it and assume the virus triggered the bacterial infection);
2) the plaintiff established that he was negligently exposed to raw sewage at work;
3) the majority of enterovirus infections are transmitted via the "fecal-oral" route
4) according to the CDC, which runs the National Enterovirus Surveillance System (NESS), only about 1300 to 1500 enterovirus are detected annually by NESS;
5) the onset of plaintiff's symptoms were within the accepted incubation period; and
6) a "leading expert in the field of anaerobic infectious disease" is of the opinion that the sewage exposure was the likely cause of plaintiff's illnesses.
Sounds like a pretty good case, doesn't it?
Now consider a couple of additional facts:
1) according to the same CDC report there are 10 - 15 million cases of symptomatic enterovirus infections in the U.S. annually; and
2) as anyone who's experienced gastroenteritis (thanks, norovirus) can attest, even when the predominate route of exposure is fecal-oral that hardly means you have to be exposed to sewage to get it - having children in school is more than sufficient.
So, back to the case. Was the strain of enterovirus that caused plaintiff's infection ever detected in the sewage to which he was exposed? No testing was done. So what are the odds that a given sample of sewage would contain an amount of enterovirus sufficient to cause an infection? The expert couldn't say. But if the overwhelming majority of enterovirus infections result from someone with insufficiently washed hands contaminating kitchen surfaces, plates and eating utensils or by shaking hands or sneezing, and when the virus can survive in all manner of environments including the lake in which plaintiff had been wakeboarding (and the polio virus is one of the enteroviruses - polio, lake water, ring any bells?), how did the expert rule rule out all the other routes of exposure? He wouldn't say.
The dissent gets at the heart of the matter writing: "Nothing in this record explains why [the expert's] opinion Brown contracted an enterovirus from his "exposure to sewage water" is superior based on science. Rather, his opinions rested on his ipse dixit." Think about it. Somewhere between 1:20 and 1:30 Americans get an enterovirus infection each year. How many came through his store? How many are likely among his friends and family? How many swam in Grapevine Lake?
