next case of the morning is number sixteen six zero six four six screws for th corporation legionella disease which occurred at the hotel chester which is a small boutique hotel located in start the mississippi there were two parties that were injured one party physicians were going to testify that his symptoms were consistent with that that lays down the basic premise of the case we have two parties five individuals who contracted legion apple e has stipulated four of the five got legionella so the fact that they got lead you know is not an issue we did not sued the hotel chester normally in these cases you sue the hotel because well obviously there were a lot there that the obvious defend the hotel chester's a small family owned hotel with no insurance their insurance policy excluded this type of injury they were also bankrupt so if we sued them we would be languishing in bankruptcy court and probably wind up with a useless manufacturer of the cooling tower we settled with him and we settled with him awkward awkward is a division of in c h but they came in after the outbreak we did not know that  the case against them based on our theory and again this is our theory our theory was in c h through its employer had smith failed to provide the proper chemicals to minimise the outbreak of legionella in the cooling tower now that's our theory our theory was had the proper chemicals been utilized initially and again we're talking about like an eight year period that's when is it with provided chemicals or the hotel chester had the proper chemicals been utilized the initial outbreak would not have occurred you say that should be used for the matter of routine service there should be those chemicals should have been used as a matter of routine yes yes and i'll get to that that we when you treat cooling towers there's two different way it really interferes with the d n a of the bacteria so it's not as affective we had two experts who said that the proper technique the proper protocol to follow would be to use an oxidizing biocide journal opinion quote one of those experts at an earlier time is saying there's no standard for the use the same terms that we use lawyers use the term standard of care or duty you talk about standard of care and duty to them their eyes glow glaze over they don't really know what you're talking about now and there's a lot of reported decision for the first circuit the says best practices are not standard for care that decision first of all is not reported so it's not president if you look at that decision the best practice part came in on a motion to reconsider and they never looked at it so there's a case that says best practices are not the same thing as a standard of care but when you look at what these look at for example look at the way of which says best practice if you look at that and i'll give you the exact cite in the record as to when you find it twenty two in the record and it was part of one of thirty four exhibits that we attached to our motion in opposition to summary judgment if you look at it if you like let's say typhoid fever which is now basically eradicated i mean i think that would be rather catered by the chlorine i suppose or the mosquitoes but you know the fact that they address legionella doesn't mean that that is necessarily something that every hotel every conscientious hotel in the united states would treat for because assigned to stand it it doesn't you know as long as you have a proper cooling system it's not going to be a routine problem those are in order to prevent legionella from being spread by these cooling you have to have a proper water treatment program without that it is but are you saying that every conscientious hotel in the united states is going to treat for legionella because that's what a standard of care means you know every every hotel is going to treat for to keep the power clean and to minimize the growth of bacteria when you do that an outcome of that is you control of the minimize the outbreak of a level where injures people because you don't have that you don't have it splashing in the air and you don't inhale it and it's probably controlled it's probably controlled by oxidizing by the side so the judge got confused here's what you do this is and this is a set forth it's really set forth and mccoys opinion it's a thirteen page opinion where he outlines exactly what you do and it's got twenty footnotes explaining why you do this learn yet well what but what the guidelines say you do is you would expect for dead legs that's and that's in the in the c t r report you inspect for dead legs and you try to find them and ed smith outbreak would never have occurred so we look to the point where the outbreak occurred we have two experts that say if the proper procedure was utilized we never would have gotten to this point a thirteen page report from mccoy and he's got twenty foot notes explaining all of this he goes into great detail if he's supposed to do if that's eight one eighty eight who is on the committee to do to do that and then we've got lyndon weatherall who says expert that the mississippi department of health sent after the outbreak we've got these two experts t say the same thing if you would have followed the proper water treatment technique you would never have got at this stage and that's what that's that's our theory of the case what happened afterwards we say hey it doesn't really matter what happened afterwards what matters is prevent the initial outbreak and the judge totally missed the point in fact he said in there somewhere there was no evidence that in c h sent ed smith to do anything and i'm thinking well what about responding superiors to n c a just credit in their brief they did recognize that that statement really didn't follow the mississippi law and and talk about the court's reasoning in excluding the expert opinions and granting summary judgment in this case i do think that there is a need to look at the record evidence and to discuss snit's role was in the water treatment at the hotel because the plaintiff's allegations and their experts criticism presuppose that mr smith had a much bigger role and more control than he actually did what the record shows is that ed was a commissioned salesman he visited the hotel chester instruct full approximately once a month for thirty minutes and while there he recommended chemicals that were intended to maintain the integrity of the metal cooling system and to increase its efficiency and what that means and what the literature recognizes that most water treatment systems or regimes are meant to reduce scale corrosion and fail and the  heat transfer so this is really just an industrial air conditioning system is is what it what we're talking about but there's nothing in the record to show that mr smith actually treated the cooling tower or he had or under took any surface that they found water i suppose circulating through the tower that's correct your honor it was like this normally an extra chlorine into the water that they circulate cooling tower the question raises a point that i wanted to get to so legionella doesn't act like other bacteria that we're all familiar with in fact even if chlorine were required all discuss why or why the literature doesn't support that this bacteria is can survive chlorine treatment and if fact it does survive most municipal chlorine treatments so it's already been treated by the city but yes additional chemicals are routinely used in cooling towers but not for the purpose of killing le and the reason for that is that there isn't legionella as ubiquitous your honor it's in all the tribes and all aquatic environments and it cannot be eliminated it's just there it's undisputed on the record and in the literature that there is no correlation between the level of legionella and the risk of disease and that's really important here in this case where this case of first impression judgment evidence to support the imposition of a duty in this case so what they relied on there's no statute no regulation there's no judicial opinion and judge burton correctly observed that in c h didn't voluntarily undertake a duty to treat legionella so that leaves the plaintiffs with their expert opinions and those opinions were nothing other than they can't point and didn't point judge journey or this court to anything in the literature that says that you have to use an oxidizing or chlorine and in fact the literature and a w t and all of these other organizations that address water treatment and cooling systems that says that you have to used or you must use corey and in fact you have to be cognizant of the system we're talking about metal if coring can't kill can't guarantee it's going to kill the legionella you could flood the system with chlorine which is what they actually did after they found the legionella system molinar testified that he was finding metallic debris in the trays at the bottom of the system way here and ed smith's job was only to recommend chemicals for treating the system that had to maintain the integrity of the system and the efficiency and i wanted to go back to the factual point about mr smith as a salesman all he could do was recommend chemicals he couldn't make it the hotel purchased them and in the record mr smith testified that when he first went to the went to the hotel duty to offer that he's or to warn that they are although i would submit that the hotel guests don't have a cause of action against in c h for that good treatment that went into the system did it that's correct it's water that is completely isolated from the circulating portion of the system such that it's stagnant and in this cooling system you know the we're talking about warm water which is the perfect environment for to get a non detectable level of legionella today and tomorrow your system could be completely infected and it grows very rapidly and so what was happening in the system as is shown by the facts in the case  frankly plaintiffs councils made the best argument in their brief about why the dead legs are the proximate cause once the tree of the system was treated that stagnant water containing legionella was released it had not been treated so the system was continuously reinfecting itself every time the pulse world did it so that is the proximate cause in this case and i believe that all the parties agree to that and rather than directly addressed that the plaintiffs just want you to ignore it  say is the appropriate thing from your view for this court to say that there is no standard that there's no evidence at least in this record of what that standard would be a mean basically what you have of the hotels and big businesses using city water which could well have which will have legionella in it could will lead to situations like this is this a case that should stand for the proposition that these these of injury the hotel was in a different position than in c h instigators only selling chemicals to hotels determining what chemicals they want to use they're the ones that are actually using the chemicals in the system mr smith didn't never put chemicals in the system at the hotel that wasn't his job they also are responsible for maintenance but the hotel has other could to undertake other actions for instance they could reduce the the opportunity for exposure a lot of this literature talks about the placement of cooling towers it starts at the very beginning in the design process but this particular cooling tower was situated on the roof of this hotel in downtown starkville such that with it in the summertime when the draft which is the water vapor that comes out the top was writing down on the precise area where the hotel  entertained guests and where smokers sat so there are there i'm not so i'm not asking you to say that there's no state of care for a hotel owner i will submit that there is no standard of care for the chemical control of legionella nothing in the literature says that that can be done and the rate added even if you could limit legionella let's say we could control legionella that there is no evidence scientific evidence that that would reduce the risk of disease because there are other factors at play here not all legionella is infectious and it depends a lot dependant on the host you know the individual that's exposed so the literature on the web we sighted in are bringing some demonstrate circumstances where hog levels of legionella have resulted in no infections and extremely low levels of legionella have had calls disease so there is no correlation here the control of legionella in the water is not possible and even if it were possible you can't show that it would reduce reduce the risk or you c chemical company had a duty to chemicals to control mosquitoes to the so that nobody would come down with you know zeke or west nile or most mosquito borne diseases of the world you're holding you're holding a course that would be the goal always would be to reduce the bacteria but in this situation the legionella bacteria that we're talking about doesn't affect the efficiency or the long jeopardy of the cooling tower and the level of the disease isn't again you know there's no correlation to the risk of injury the ideal would be able  literature emphasizes the need to consider all the specifics of every cooling system individually and not to rely just on laboratory testing because as we saw in this case this dead leg in this hotel we could have dumped all the corn in the world since cooling tower until we burned it that burned it up and not killed the legionella under this factional circumstance ok all right thank you first of all let me address one one thing that amy said and i probably would actually agree with it and where she said it's a moving target this is one of those cases where you think you have the main defendant and you start conducting discovery experts the case goes on and suddenly you realize my this isn't the main defendant this is the main defendant that's what happened in this case i'll be the first admit we concentrated on the cooling tower because the c d c said that's where their legionella was it was in the cooling tower but then we got into discovery experts and then suddenly realized well the problem with that is the tower would not have had this legionella in it had the proper water treatment protocol been followed and just south of i think you hit the nail on the head of the hammer when you started talking about is this a do  that we just haven't found yet the hotel they're trying to blame the hotel ok and judge jones well respect i think that's a big difference between the skeeters out of the environment and legionella coming in from year cooling tower now we've got this hotel it's got a cooling tower and they're saying ok the water free we can't we're in c h we don't have any duty smith had no duty he wasn't there to control legionella the guy that owns the hotel it's your problem what's mr mollett or going to do we've got two experts to say yes ultimately it is the premises owner who's responsible but he can discharge that duty by relying not adequate proper water trees well let me just cut to the chase here what are you saying that and see it should have supplied to them more  occurred because there was so much legionella in the system because of the water treatment and procedure didn't follow the proper procedure it built up so much that the system was overwhelmed it was absolutely overwhelmed him up whoa who is the expert came in they dumped some much chlorine in there they had to try to get rid of it that it caused because  wired around the second ad leg and the problem was cured so that that's pretty much how is that hard to argue with oh very simple had the proper procedure been followed in the first place the bit the build been up in the dead like had the proper process to experts said that ok doctor to go i said that when the weather all said that he said that had the proper procedure been followed the outbreak would never have occurred but but if you if you follow the proper procedure you'll never have a problem with the deadly that's what our experts say we have two experts to say that now there are experts saying just the opposite which is to be expected  system here's where we go back to our experts and this is just south of us question who go who best is in a position to treat the water the water treatment company is in the best position we have our experts to say it's there they had a duty linda weatherall said they had a duty to touch mccoy said they had a duty they claim to have no duty well we've had a conflict there