Spotlight: Counsel advocates on water quality before court, legislature for parents whose child died of liver failure

Law Reporter, Apr 2000

Avery ro. Rajewski, Conn., New London Super. Ct., No. PJR CV-97-0544217S, Sept. 17, 1999.

From birth, Brian Avery drank water supplied to his parents' house by S.D.C. Water Company. At age 4, he was diagnosed with liver failure. Efforts to transplant a partial liver donated by his father were unsuccessful, and Brian died. It was then determined that he had suffered from Wilson's disease, which prevents the liver from metabolizing copper and causes cirrhosis of the liver.

Believing that excessive amounts of copper in the drinking water had caused Brian's death, his parents contacted ATLA member Matthew Shafner of Groton, Connecticut, to represent them in a suit against the water company and its owners. Shafner's associates, ATLA members Bonde E. Johnson and James A. Hall, both of Groton, also represented them. Attorneys Granville R Morris and Lynn T. Cravinho, also of Groton, assisted as well.

Plaintiffs sought damages, in part, for the emotional distress they experienced by witnessing their son's death, and for the need for Mr. Avery to donate part of his liver.

Plaintiffs alleged the amount of copper in the water supplied by S.D.C. violated statutes and regulations governing the allowable levels of copper in drinking water. Specif ically, plaintiffs contended records of test results located in the Department of Public Health (DPH) archives revealed copper levels in the drinking water well above the U.S. Environmental Protection Agency standard.

Defendants countered that Brian's death was solely caused by Wilson's disease. Plaintiffs would have argued that the disease is usually not fatal and usually not discovered until after adolescence, when it can be controlled through diet and chelating agents. Plaintiffs contended the excessive levels of copper in the water prevented Brian from reaching adolescence, when moderate dietary restrictions and medication would have allowed him to lead a normal life.

Plaintiffs would have presented test data showing that the acidity of the drinking water regularly fell below the range recommended by the DPH. Plaintiffs intended to show that this allowed copper to leach into the water from the copper piping in plaintiffs' home.

To prove causation, Shafner was prepared to present testimony from James E. O'Brien, a toxicologist from Hartford, Connecticut. He would have testified that the excessive levels of copper in the drinking water were a substantial factor in Brian's liver failure and death.

Plaintiffs also would have presented testimony from neighbors whose complaints had been ignored by defendants. Some of them had testified about the poor quality of the water at a rate hearing. They said the water was staining their white bath fixtures a bluish-green and was damaging their water heaters and plumbing.

Shafner said a big obstacle in this case was proving that defendants were on notice of the water's condition. "The notice problem was solved by an exhaustive search of the DPH records," Shafner said. These records included correspondence between the DPH and the water company, which proved that the company was aware of the excessive copper levels several years before Brian's death. The records also showed that the DPH had ordered the company to evaluate the potability of its drinking water almost three years before the death. Despite this order, S.D.C. did not install an inexpensive caustic soda treatment system to lower the copper levels until after Brian developed liver failure.

Shafner also said that proving causation was difficult because no other families living in the same housing development as the Averys had become ill. But, Shafner emphasized that it is almost certain that none of the other families had children who suffered from Wilson's disease.

The parties settled before trial for $800,000. Shafner said that the Averys would not have settled if the amount was to remain confidential. "In fact," he said, "they would have preferred to try the case and lose it, just to make certain the situation came to light."

"This money will never replace my son," Mrs. Avery said. She decided to settle based on counsel's assurance that they would work to obtain changes in the law to prevent a similar injury from happening to any other child.

Legislation has been introduced in the state legislatureat the request of the Averys-to require a 150-day compliance period for water companies to correct water quality problems. The current compliance period is two years. Other proposed legislation would require that all customers receive notice of water quality problems so that they can protect themselves and participate in any hearings.

Shafner will accompany the Averys to testify when the proposed legislation comes up for public hearing.

SL

Documents in this case are available through the Court Documents section in the back of this issue, courtesy of Mr. Shafner.