How to Handle a Sick Building Case by Thomas X. Glancy, Jr.
Thomas X. Glancy, Jr. is a graduate of the University of Maryland School of Law. He is a member of the Personal Injury Department of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC and a member of MTLA. Mr. Glancy was one of the plaintiffs’ counsel in Bahura v. S.E.W. Investors, one of the first sick building cases to be tried to a plaintiff’s verdict, and he successfully argued that case on appeal.
The subject of sick buildings has gar- nered increasing attention recently.
In
December, one hundred office workers demonstrated outside of the Investment Building, a commercial office building in Towson, alleging that unhealthy condi- tions in that building were making them ill and demanding to be relocated. Three occupants of that building filed an $18 million lawsuit against the building owner, charging that they were sickened by bacteria in the building1
.
In addition, workers in two Baltimore City courthouses, the Mitchell Court- house and Courthouse East, have complained of respiratory infections, coughing, eye irritation and other prob- lems that they associate with conditions in those buildings.2
In 1999, a 60 Min-
utes segment reported complaints by employees of the Environmental Protec- tion Agency that unhealthy indoor air at the EPA national headquarters in Wash- ington, D.C. had made them ill. In June of 2000, the District of Columbia Court of Appeals upheld substantial verdicts that had been awarded in favor of five of those employees.3 Notwithstanding this recent spate of attention, the “sick building syndrome” phenomenon is not a new one. During the oil embargo and energy crises of the 1970s, many buildings were “weather- ized” or “tightened” as owners and landlords undertook energy conservation measures. As the amount of outdoor air supplied to these buildings was reduced, pollutants and toxins that previously had been circulated out of the buildings, such as formaldehyde, cleaning materials, and off-gases from carpets and furniture, be- gan to accumulate at unhealthy levels. Office workers who were exposed to these pollutants and toxins became ill.
1 2 3
The Baltimore Sun, December 6, 2000, Page 3B.
The Daily Record, Volume 1, Number 33, August 5, 2000.
Bahura v. S.E.W. Investors, 754 A.2d 928 (D.C. 2000).
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The adverse health effects associated with indoor air pollution are varied. Ex- posure to indoor contaminants most commonly affects the pulmonary, neuro- logical, and immunological systems. Symptoms are typically multiple and com- monly include headache, fatigue, depression, anxiety, difficulty in concen- trating, dry cough, upper respiratory difficulties, chemical hypersensitivity, re- peated infections, and eye, nose, or throat irritation.
The scope of the problem is stagger-
ing. It has been estimated that of the ten million commercial office buildings in the United States, as many as 20 percent, or two million, may be “sick.”4
Litigation of indoor air quality issues
has increased substantially in the last de- cade as the number of people who have become ill from exposure to toxic indoor air rises, and as those individuals begin to realize that their illnesses are caused by their indoor environment.
This article
discusses steps that plaintiffs’ counsel should take in evaluating and litigating sick building cases. It primarily focuses on cases in which a number of building occupants complain of chronic illnesses that they attribute to conditions in the building in which they work.
Evaluation An important first step in evaluating a potential sick building case is to conduct thorough interviews with the potential clients.
Those interviews should be
supplemented with a comprehensive ques- tionnaire that each prospective client should be asked to complete. During this process, counsel should obtain a complete medical history from each client as the issue of causation will, in most cases, be hotly contested. That
4
Subcommittee on Health and the Environ- ment, House Committee on Energy and Commerce, April 10, 1991; testimony on The Indoor Air Quality Act of 1991, intro- duced by Rep. Joseph P. Kennedy, II, to set standards for indoor air quality.
Trial Reporter
history should include a family medical history, particularly for illnesses such as chronic asthma, chronic bronchospasms, repeated pneumonias, interstitial lung fi- brosis, and other respiratory illnesses. Counsel should also ask clients about any past and current treatment with mental health care providers, as defendants fre- quently attempt to attribute a sick building claimant’s physical complaints to a somatization disorder or other psycho- logical condition. Potential clients should also be asked whether they have filed workers’ compen- sation claims for their occupational illnesses and to identify treating doctors whom they believe will support their claims that they became ill as result of exposure to toxins in the building. Following the interview, a complete set of the client’s medical records should be ordered promptly. Counsel should then review the completed interviews, ques- tionnaires and medical records for evidence of a pattern of similar symptoms by occupants throughout the building or for a cluster of complaints in certain ar- eas of the building. After the clients’ medical records have been collected and reviewed by counsel, they should be submitted to a physician with a background and experience in en- vironmental or occupational medicine. It is important to have at least one medical expert examine most, if not all, of the potential clients so as to determine whether there is a pattern of symptoms consistent with a toxic exposure that can be explained by no common factor other than that the clients worked together in the same building.
The selection of the appropriate medi- cal team will usually depend upon the nature of the illnesses from which the cli- ents suffer.
If their principal symptoms
are respiratory, such as coughing, wheez- ing, and difficulty breathing, a physician specializing in pulmonary medicine should be consulted. Clients who exhibit symptoms consistent with cognitive im- pairments, such as memory loss, fatigue, or loss of concentration, should undergo
Winter 2001
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