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In Bahura , et al v. S.E.W. Investors et al. D.C. Super Ct
Civil Action No 90 - CA - 10594, decided November 29, 1995 and reported in the
Daily Washington Law Reporter on March 4, 1996, Judge Rufus J. King III,
granted the Defendants’ Motion for Judgment NOV in a suit claiming damages
from exposure to organic compounds in the indoor mall of an office building
where the Plaintiff’s symptoms were intermittent and unpredictable and the
Plaintiff’s injuries were not serious and verifiable.
The five Plaintiffs at all relevant times were employees of the EPA whose
offices are located in the Mall, a complex of buildings located at 401 M
Street, S.W. Washington, D.C. In 1987 & 1988 renovations, including the
installation of new carpeting, were being conducted in the Mall. Each
Plaintiff offered evidence that symptoms were physical in nature and were
caused by exposure to airborne chemicals.
In addition to temporary respiratory and eye irritations, all Plaintiffs
claimed permanent injury, which they experienced as recurring headaches,
dizziness, fatigue, and other neurological and respiratory symptoms suffered
whenever they were exposed to moderate levels of common organic pollutants.
Plaintiffs contended this heightened sensitivity culminated in Toxic
Encephalopathy, an
organic brain disease causing neurological physical injury.
Plaintiffs attributed their injuries to two negligent operations at the Mall.
One was inadequate ventilation in the building generally, and the other was the
constructive work during renovations were insufficiently isolated.
The jury was specially verdict as to whether (1) The Plaintiffs were physically
injured and (2) whether the Plaintiffs believed they were physically injured.
The jury returned a verdict indicating that Four of the Five Plaintiffs were
not physically injured and that they believed that they were injured. (
Somatization ). The Plaintiff’s asserted that they were psychologically
injured as a result of the defendants’ conduct. The court noted that no
treating physician or medical expert testified that the Brain abnormalities
were linked to the emotional distress or psychological injury. The court
indicated that the jury verdict indicated that the Plaintiffs’ coughing,
wheezing, headaches, dizziness and other symptoms did not amount to verifiable
permanent injury and
held that on the record, the Plaintiffs’ injuries were not serious and
verifiable within the meaning of Jones and Sowell.
The Court held that since psychological causes are the basis for recovery for
four of the five Plaintiffs, judgement NOV should be granted in favor of the
Defendants as to the four Plaintiffs. The Court concluded that somatization is
not a compensable injury in the circumstances existing and indicated that there
must be medical testimony causally connecting the belief of injury to the acts
of the Defendants.
The significance of this case is that the court held that the Plaintiffs’
claims of somatization in the context of a “sick building” case are
not serious and verifiable and for such injuries to be compensable in the
absence of physical contact or physical injury , the Plaintiff must be in the
zone of danger of physical impact. The disadvantage to the general
applicability of the ruling , is that it is a decision largely confined to the
particular facts of the case and is a decision of the Superior Court of the
District of Columbia , rather than an Appellate Court. Nonetheless, it is a
decision which can be asserted in environmental claims of a broad nature.
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In Bunn v. Urban Shelters
and Health Care Systems, Inc. D.C. App. Nos. 94-CV-903
& 94-CV-959 , decided February 29, 1996 The Appellate Court held that a
Directed Verdict for a defendant was proper where there was no evidence as to
the cause of injury to a nursing home resident and Res Ipsa Loquitur did not
apply because the injury ordinarily may occur without negligence.
The Court indicated that before Res Ipsa Loquitur can be held to apply to a
happening or accident a Plaintiff must demonstrate that: (1) An event would not
ordinarily occur in the absence of negligence; (2) the event was caused by an
instrumentality in defendant’s exclusive control; and (3) there was no
voluntary action or contribution on Plaintiff’s part. The Court indicated
that in the instant case, which involved an injury to an elderly resident the
Plaintiff failed to establish that an event would not ordinarily occur in the
absence of negligence and that the mere happening of an accident does not give
rise to any inference of negligence. The Court indicated that it could not
imply negligence in the instant case based solely on the fact that an adverse
result occurred during a total care patient’s residence in a nursing
facility.
The significance of this holding is the fact that the court followed the strict
dictates of the Res Ipsa Loquitur rule and refused to imply negligence merely
because an accident had occurred. The Court ruled that the three under
pinnings of the rule must be established before a Plaintiff can rely upon its
application and that it is the Plaintiff’s burden to do so.
The D.C. Court of Appeals in the case of Claytor, et al v. Owens-Corning
Fiberglass Corporation, et al, D.C. App. No. 92-CV-39 ruled in an
asbestosis case that Summary Judgement was properly granted defendants in a
suit claiming injury from Defendants’ asbestos products where the
Plaintiffs could not show that Defendants’ products were the substantial
cause of the injury. The Court applied the “substantial factor” test
and held that there was no evidence that products manufactured or supplied by
them caused their injuries or even prove that their products were a
“substantial factor” in causing the alleged injuries. The court
further indicated that it is incumbent upon the Plaintiff in any products
liability action to show that the Defendants’ product was the proximate
cause of his or her injuries. The Court further held that although the issue of
proximate cause is often an issue for the jury, that it can also be a question
of law for the Court to decide in the first instance, before the case even goes
to a jury. In the event there is insufficient evidence for a reasonable jury to
find that the defendant’s conduct caused harm to the Plaintiff, the court
must direct a verdict for the defendant. The question becomes one of law when
the evidence will not support a rational finding of proximate cause. In
addition, if the Court determines that a certain chain of events appears highly
extraordinary in retrospect, the case should also be taken from the jury. The
Court further held that it is the duty of the Court, to withdraw the case from
the jury when the necessary inference is so tenuous that it rests merely upon
speculation and conjecture.
The significance of this case is the strong language used by the Court to
justify those instances when the Plaintiff has failed to sustain the burden of
proof and the corresponding duty of the Court to either grant a summary
judgement or a directed verdict in order to prevent jury speculation. This
case is viewed as a far reaching decision which can and should be used by
Defense counsel in vigorously asserting an issue which should be decided as a
matter of law in the Defendant’s favor.
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