What Do You Think: Did Mention of E. Coli Infection Bias Case for Worker?

Frank Ferreri

Kansas City, MO (WorkersCompensation.com) – If an employee claims that he might have contracted an infection at work in building his case against his employer, how much speculation is too much for a court to let in?

That question recently found its way to a Missouri appellate panel considering disability discrimination charges against a city.

An equipment operator for the city’s water department had prostate cancer for which he underwent chemotherapy treatment. Although the worker’s cancer went into remission, he became more prone to illness and developed a pancreatic condition that intermittently required hospitalization.

To relieve some of his symptoms, the worker underwent surgery to remove his gall bladder, following which he contracted an E. coli infection and was diagnosed with an abscess on his liver. The abscess had to be drained to heal, which would take approximately six weeks. Because of this, the worker sought to take FMLA and sick leave.

The worker used all of his sick leave and FMLA time, so he requested discretionary leave under a city policy that provided an option for employees who had run out of FMLA and paid leave benefits. The city denied his request because they felt it was not in the city’s “best interests.”

The city terminated the worker. After his condition improved, the worker found employment elsewhere but was unable to attain his former rate of pay.

He sued the city, alleging disability discrimination under state law analogous to the Americans with Disabilities Act. At trial, a jury awarded the worker $300,000, prompting the city to appeal.

In particular, the city took issue with the trial court’s allowing the worker to present evidence of and to mention in argument that his E. coli infection could have been contracted through his work with the city.

Trial courts have discretion to allow evidence, and appeals courts will generally only reverse a case if the trial court abused its discretion in allowing evidence. The worker’s testimony admitted that he wasn’t sure if his infection stemmed from work.

Did the court make a mistake by allowing evidence on the workers’ E. coli infection?

A. Yes. Allowing speculation that the infection was work-related influenced the jury to find against the city.

B. No. The brief speculation about the E. coli infection in the case wasn’t enough to show that the trial court abused its discretion.

If you picked B, you agreed with the court in Sherry v. City of Lee’s Summit, No. WD83635 (Mo. Ct. App. 03/09/21), which held that the evidence was appropriate.

In particular, the court pointed out that several witnesses gave their views on the possibility of the worker’s illness being work-related. Additionally, evidence in the case brought to the jury’s attention that the worker considered filling a workers’ compensation claim but chose not to because of a lack of certainty on the source of the infection.

Additionally, the worker’s attorney explained during closing argument that no one knew how the worker contracted his infection and that no other city employee had contracted E. coli from work. In the court’s view, the evidence for the jury was fair and the trial court didn’t make a mistake.

As a result, the court rejected the city’s motion to reverse the case.

This feature does not provide legal advice.

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