The hospital sought in court to have the letter removed from a civil case stemming from the outbreak, but a Montgomery County judge rejected the request last week.
The Aug. 29, 2011 letter from Neil Freund, an attorney for the hospital, to executives for Skanska USA Building Inc. and Shook Construction, two contractors on the project, said “an analysis of the outbreak points to ‘plumbing issues, including plumbing design, in the new tower.’”
“This was the responsibility of Skanska/Shook, JV (Joint Venture),” Freund wrote. “The temperature of the water and the fact the water was not chlorinated before occupancy were also likely contributing causes. Skanska/Shook knew there was no chlorination prior to occupancy, even though the project specifications called for such chlorination to take place, but failed to take any action.”
Legionnaires' disease spreads when people breathe in a mist or vapor that has been contaminated with the Legionellabacteria, according to the Centers for Disease Control.
Freund added that the hospital “appreciates” its relationship with Skanska and Shook. “It is not, however, the hospital’s intention to shoulder the entire cost of what could be more than eleven patient cases and/or lawsuits for an incident which the hospital did not cause,” Freund wrote. “The purpose of this letter is to put Skanska/Shook on notice that Miami Valley Hospital seeks contribution and cooperation in resolving these claims.”
The letter also said the hospital has instructed Freund’s legal team to negotiate and settle plaintiffs’ claims. Freund suggested to Skanska and Shook that they “place your insurance carrier on notice in the event you have not already done so.”
Hospital officials in July 2011 told the Dayton Daily News that insufficient heating of the hot water system in the new tower was the primary reason for the outbreak.
Nancy Thickel, a spokeswoman for the hospital, referred questions to Freund, who declined to comment Tuesday. An attorney for Skanska-Shook Joint Venture referred questions to another attorney, who could not be reached. Both companies are defendants in the lawsuit, as is TP Mechanical Contractors. A message seeking comment was left for an attorney for TP Mechanical.
Bill Whistler, Shook Construction president, said in a prepared statement Tuesday: “We can tell you that safety is a top priority on every one of our projects. We take the allegations very seriously and are working diligently to investigate the facts.”
In a May memo to Montgomery County Common Pleas Judge Mary Wiseman, Freund’s firm said the letter was accidentally made part of a discovery release by TP Mechanical. The memo said plaintiffs’ attorney Dwight Brannon was informed of the “inadvertent disclosure and of the fact this letter is considered privileged.”
“Mr. Brannon was requested to return the document,” the memo added. “Instead of returning the document as he was obligated to do under civil rules, Mr. Brannon filed the document with the court, making it part of the public record.”
Asked for comment this week, Brannon said, “The letter speaks for itself. It should make the hospital own up to its own transgressions.”
Wiseman ruled Oct. 16 that any protection to the letter “was waived by a then voluntary production to potentially adverse parties.”
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