Bahura v. SEW Investors

• Decision Date: 15 June 2000
• Docket Number: No. 96-CV-513, No. 96-CV-490, No. 96-CV-1143., No. 96-CV-1142, No. 96-CV-418
• Citation: 754 A.2d 928
• Parties: Joanne BAHURA, et al., Appellants/Cross-Appellees, v. S.E.W. INVESTORS, et al., Appellees/Cross-Appellants.
• Court: D.C. Court of Appeals

754 A.2d 928

Joanne BAHURA, et al., Appellants/Cross-Appellees, v. S.E.W. INVESTORS, et al., Appellees/Cross-Appellants.

Nos. 96-CV-418, 96-CV-490, 96-CV-513, 96-CV--CV-1143.

District of Columbia Court of Appeals.

Argued October 4, 1999.

Decided June 15, 2000.

Thomas X. Glancy, Jr., Baltimore, MD, with whom Fredric G. Levin and Mark J. Proctor were on the brief, for appellants/cross-appellees.

William J. Carter, with whom Gregory A. Krauss and Catherine A. Hanrahan, Washington, DC, were on the brief, for appellees/cross-appellants.

Before STEADMAN, SCHWELB, and REID, Associate Judges.

SCHWELB, Associate Judge.

In 1990 and 1991, a group of twenty plaintiffs, who included employees of the Environmental Protection Agency (EPA) and spouses of EPA employees, brought these consolidated actions against the owners and managers of the buildings housing the EPA's national headquarters. The employee-plaintiffs claimed to have suffered neurological injuries as a result of their inhalation at the workplace of allegedly contaminated indoor air. The spouses' claims were predicated on alleged loss of consortium. In October 1993, the cases of five representative employee-plaintiffs, and of one employee-plaintiff's husband, proceeded to a consolidated jury trial.¹

At the conclusion of the trial, and in response to interrogatories from the court, the jury found that one of the plaintiffs — Susan Watkins — suffered physical injury as a result of her exposure to contaminants at the Waterside Mall, and that the other four employee-plaintiffs (hereinafter the "somatization plaintiffs") incurred a form of somatization or somatoform disorder.² The jury found in favor of Robert Diebold, the husband of an employee-plaintiff, on Mr. Diebold's claim of loss of consortium. The jury awarded damages to all six plaintiffs in the aggregate amount of $948,000.

The defendants filed a post-trial motion for judgment notwithstanding the verdict (JNOV), contending that the evidence was insufficient as a matter of law to establish either that the defendants were negligent or that their conduct proximately caused the plaintiffs' injuries. The trial judge granted the JNOV motion as to the somatization plaintiffs, concluding, inter alia, that the emotional harm that these plaintiffs claimed to have suffered was neither serious nor verifiable. See Sowell v. Hyatt Corp., 623 A.2d 1221, 1225 (D.C.1993)

; Williams v. Baker, 572 A.2d 1062, 1068-69 (D.C.1990) (en banc). The judge further granted JNOV against Robert Diebold, denied the JNOV motion as to Ms. Watkins, and entered judgment in Ms. Watkins' favor in the amount awarded to her by the jury.

The somatization plaintiffs, as well as Mr. Diebold, now appeal from the order setting aside the verdicts in their favor. The defendants cross-appeal from the judgment awarding damages to Ms. Watkins. We conclude that the jury awards to the somatization plaintiffs and to Mr. Diebold must be reinstated. In all other respects, we affirm.

I. BACKGROUND

Between 1986 and 1989, the EPA's national headquarters, a leased facility at the Waterside Mall³ in southwest Washington, D.C. at which more than five thousand persons were employed, underwent major renovations. Contractors replaced carpeting and ceiling tiles, rebuilt and repainted walls, and installed new office dividers. Soon after the renovations began, substantial numbers of EPA employees began to report health problems that they attributed to the defective quality of the indoor air at Waterside Mall. Mary Hogrefe, the nurse in charge of the EPA health clinic, testified that over 225 employees came to the clinic complaining of "headache, nasal congestion, hoarseness, ... burning eyes, watering eyes mental confusion, blurred vision, [and] tingling of the fingers." Nurse Hogrefe explained that the Health Clinic operated under standing orders to provide sick individuals with oxygen or to remove them from the building. She stated that some patients were so ill that she found it necessary to escort them out of the building, but noted that with exposure to fresh air "[t]he symptoms would start to disappear, [and] the employee would get much better. Sometimes the symptoms would completely disappear."

In 1988, the agency commissioned a survey which was designed to ascertain the extent of neurological symptoms (sometimes called "sick building syndrome") among employees at Waterside Mall. Over 80% of the employees responded. One half of the respondents reported unusual fatigue, 41% had difficulty concentrating, 61% often or sometimes suffered from headaches, and significant numbers reported other neurological symptoms. The evidence of serious environmental difficulties at the EPA's own headquarters was widely publicized and came to the attention of Congress. The agency opened a special health clinic to handle indoor air quality complaints. The EPA also established an alternate work space policy to accommodate employees who had apparently become ill as a result of their exposure to contaminated air. In addition, teams of outside neurologists, toxicologists, engineers, and safety inspectors were retained as consultants in the hope that they could help the EPA to combat the chemical exposure problems that had arisen throughout the complex.⁴

The representative plaintiffs whose cases went to trial included five EPA employees who claimed to have been injured as a result of the conditions at the Waterside Mall, as well as the husband of one of the employee-plaintiffs. See note 1, supra. They alleged in their complaint that the defendants had failed to provide adequate ventilation at the EPA headquarters and that the buildings had been negligently maintained and renovated. The plaintiffs claimed that they had been exposed to toxic chemicals during renovation, and that their exposure to the contaminated air caused them to suffer serious neurological illness, including brain damage. The defendants denied negligence and contested the plaintiffs' claims of injury and causation. After a mini-trial designed to facilitate a settlement failed to achieve its goal, the parties and the court agreed that the initial jury trial should take up the claims of the six plaintiffs whose cases are now before us.

II. THE TRIAL

The trial of this case lasted seven weeks, and the record before us is extensive. We confine our discussion of the evidence to those facts that require exposition in order to dispose of the issues raised on appeal.

A. The plaintiffs' evidence.

The case for the plaintiffs consisted primarily of expert testimony designed to show that the defendants violated the applicable standard of care and that these violations proximately caused the employee-plaintiffs' injuries. The plaintiffs, their medical experts, and additional fact witnesses described the injuries that the plaintiffs claimed to have suffered as a result of the defendants' negligence.

The plaintiffs' expert witnesses testified that Waterside Mall lacked sufficient ventilation to conform to minimum industry standards. They explained that when a building lacks adequate air flow, contaminants may build up and, quite literally, poison those who live or work within the contaminated space. If credited, the testimony of the plaintiffs' experts established that this is what happened at Waterside Mall. When renovations began, the inadequate ventilation trapped dangerous organic compounds inside the building. According to Professor James Woods,⁵ the concentration of contaminants in the indoor air rose to dangerously high levels during normal operations. Professor Woods stated that "for a building of its size, which is over a million square feet, [the Waterside complex presented] the worst ventilation problems" he had ever seen.

The plaintiffs' experts also testified that, in their view, the defendants' supervision of renovations at the EPA headquarters did not satisfy the applicable standard of care. There was evidence that the renovations were conducted near the plaintiffs' work areas, and according to the plaintiffs' experts, the defendants failed to screen off and separate employee work space from the ongoing construction. Consequently, fumes and toxins released into the air during renovation quickly moved to the areas in which the plaintiffs and other employees were performing their jobs. In the opinion of the plaintiffs' experts, the defendants failed to follow basic safety standards for handling chemicals and vapors associated with carpeting, new walls, paint, glue, and other construction materials. Professor Woods testified that this failure on the part of the defendants exposed each of the plaintiffs to "two, three, four times the level associated with neurotoxic injury in the scientific literature," or, to put it in more concrete terms, to levels harmful "enough to cause people to get sick."

All of the employee-plaintiffs claimed that their exposure to contaminants at the Waterside Mall caused them to experience serious and persistent health problems for substantial periods of time.⁶ Each plaintiff reported extensive difficulties in concentrating, loss of memory, impairment of general cognitive functioning, extreme fatigue, and a variety of other symptoms. Joanne Bahura, for example, suffered loss of memory and concentration, diminished hand-eye coordination, weight loss, and sporadic difficulties with moving the left side of her body. Ms. Bahura became depressed and even paranoid, suffered from headaches, and allegedly became nauseous when exposed to certain solvents and compounds. On a visit to the perfume section of a department store, she became pale, dizzy, and weak, she found it difficult to breathe, and she was unable to keep her balance, almost falling down. Ms. Bahura also developed bad headaches, and, according to her husband's testimony, it took her a long time to recover. All of the other somatization plaintiffs reported similar difficulties and experiences on a long-term basis....