H1N1 Virus: The First Legal Action Targets a Pig Farm

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Steven and Judy Trunnell

In an initial step toward what could be the first wrongful-death suit of its kind, Texas resident Steven Trunnell has filed a petition against Smithfield Foods, the world's largest pork producer, based in Virginia, and the owner of a massive pig farm in Perote, Mexico, near the village of La Gloria, where the earliest cases of the new H1N1 flu were detected. Trunnell filed the petition in his home state on behalf of his late wife, Judy Dominguez Trunnell, the 33-year-old special-education teacher who on May 4 became the first U.S. resident to die of H1N1 flu.

In late April, Dominguez Trunnell, who was eight months pregnant, became ill with what would eventually be confirmed as H1N1 flu. While the vast majority of victims of the virus — there have been more than 4,700 probable and confirmed cases in the U.S. — have recovered without complications, Dominguez Trunnell grew sicker, eventually being placed on a ventilator. Early this month Dominguez Trunnell passed away, weeks after her baby daughter was delivered via cesarean section. "She was a fun and caring person," Trunnell tells TIME. "She didn't deserve this." (See pictures of H1N1 flu hitting Mexico.)

Trunnell's petition seeks to investigate claims that the H1N1 outbreak began in Smithfield's massive pork operation in La Gloria and that the virus may have been caused in part by the conditions under which the farm operates, which the petition terms "horrifically unsanitary."

"This affected my family," says Trunnell, a paramedic who will now be raising two children on his own. "I need someone to be held accountable for this."

If Trunnell ends up following through with a wrongful-death suit against Smithfield Foods, it will most likely make legal history. No one has ever tried to hold a corporation responsible for the inadvertent creation of an infectious disease. Trunnell and his lawyer, Marc Rosenthal, do not claim that Smithfield purposely bred the virus, but rather that its Perote operation, which raises some 1 million pigs annually in close quarters, established the necessary conditions for the virus to arise. If Smithfield had taken better care of its farm, the petition claims, H1N1 might never have been introduced to the world.

"We think that the conditions down there are a recipe for disaster," says Rosenthal. "This type of virus is more likely to evolve and mutate in this much filth and putrescence. It's more than a mere coincidence that the first cases emerged right there in La Gloria." (Read five things you need to know about H1N1 flu.)

The suit will hinge on the fact that the first confirmed case of H1N1 appears to be a 5-year-old Mexican boy from La Gloria who lived not far from the Smithfield pork-farming operation. Local villagers had been complaining about the smell and the vast amounts of manure created by the Smithfield pig farms for some time, and H1N1 infection rates in the community were high. The idea that factory farming — where pigs are packed together closely — could provide a breeding ground for new viruses also has some scientific backing. A recent study by the Pew Charitable Trusts and the Johns Hopkins Bloomberg School of Public Health found that such operations could increase the risk for transmission of new viruses, including swine and avian flu.

To date, 34 countries have reported 7,520 confirmed cases of H1N1 infection, including 60 deaths in Mexico. In the U.S., the death toll reached four on Friday, and scientists studying the virus say the novel flu virus appears to be about twice as contagious as the regular seasonal flu. Although the "H1N1 virus tends to cause very mild illness in otherwise healthy people," according to a World Health Organization statement on Monday, "the youth of patients with severe or lethal infections is a striking feature of these early outbreaks."

The outbreaks have been a minor catastrophe for pork producers. Though international health officials were quick to assure the public that the disease initially known as swine flu could not be contracted by eating pork, consumption of pig products dropped rapidly in the wake of the virus's spread. "That is our biggest concern — the economic impact of people shying away from eating our product over fear," C. Larry Pope, CEO of Smithfield Foods, told the Richmond Times-Dispatch on May 5. The National Pork Producers Council estimated that between April 24 and May 1 — the most frenzied days of the H1N1 outbreak so far — the disease cost the pork industry $7.2 million a day.

If Trunnell's claim goes forward, Smithfield will face more serious problems. But that's a big if. Scientists are still far from certain where the H1N1 virus originated or how long it may have been circulating in pigs or people (the first human outbreak is thought to have occurred in February). So far, no pigs have been found to be infected with the virus, other than at one farm in Canada on May 2, where the swine were actually infected by a human worker. And on May 14, Smithfield announced that Mexican authorities had completed tests of the company's pigs in Perote and found no evidence of the virus in the swine. (It's not clear what test Mexican authorities used; only blood tests for antibodies can confirm the virus.)

Rosenthal says he doubts the Mexican tests and wants to have the Perote pigs examined by his own experts. Having Smithfield report on the tests "is like the fox guarding the henhouse," he says. If the case goes forward, Trunnell will be suing Smithfield for up to $1 billion, which would include punitive damages, and Rosenthal indicates that he would be open to launching a class action on behalf of other H1N1 victims.

Reached for comment, Smithfield declined to discuss Trunnell's petition.

New viruses have emerged from animals to infect and kill humans for thousands of years, and while today's factory-farming conditions may raise that risk, it will be tough to hold any one corporation responsible. But Steven Trunnell wants to fight. He says that, contrary to early media reports, his wife Judy had no underlying medical complications and was healthy before she contracted H1N1. "She accomplished so many goals, and she was the mother to a 4-year-old," he says. "It was a gross injustice." Viruses, however, have no sense of justice — and no court in the world will be able to change that.

(See the top 10 medical breakthroughs of 2008.)

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