Weatherization Department
The Friday Report Friday September 20,1996
FromWright Energy's
Weatherization Network Since 1984
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IAQ: Preparing For A Legal Challenge
Maintaining good indoor air quality is only half the battle
IT''S HARD TO determine how many indoor air quality (IAQ) lawsuits are
filed in any one year, but legal experts believe litigation is on the rise.
If recent cases are any indication, plaintiffs in IAQ cases are faring better.
One problem for building owners trying to defend themselves against IAQ
complaints is that there are no all-encompassing rules or standards against
which to measure their buildings' health. The lack of clarity creates confusion
-- enough to justify IAQ regulation of some kind, some observers say.
For now, about all building owners can do is take a preventive approach
to all matters that affect IAQ, and immediate action should a complaint
arise. Most important: They should document everything.
IAQ goes to
court
Not surprisingly, the short history of IAQ litigation began inconclusively.
In 1991, one of the earliest cases -- Jeanne Call, et al. v. Prudential
Insurance Co. of America -- settled a month after it
went to trial for an undisclosed amount, reported to be several million
dollars. The plaintiffs claimed they'd suffered from nausea, dizziness,
headaches, memory loss, back pains and slurred speech, but no specific cause
could be found. One newspaper account called the case the first pure sick-building-syndrome
(SBS) case.
SBS remains a controversial issue, but it's treated much more seriously
than ever by counsel for both the plaintiff and defendant. Consider the
DuPage County Courthouse case. "Both sides agreed this was a classic
sick-building-syndrome case," says Michael A. Pollard, partner at Baker
& McKenzie, Chicago, and an attorney for the defendant.
Another well-publicized IAQ case involves Waterside Mall, Washington,
D.C. In the suit, the plaintiffs complained of neurological and respiratory
problems after new carpet was installed in the facility, and a jury awarded
them $1 million.
What is significant about the case, says Krauss, an attorney for the defendant,
is the jury agreed with the defense that there were no injuries to four
out of the five plaintiffs. But the jurors awarded damages because, Krauss
says, they were convinced the plaintiffs
believed they had been injured.
In a Nov. 29 decision, District of Columbia Superior Court ruled that the
mall's owners and managers no longer had to pay damages to four of five
plaintiffs who'd been awarded $948,000 in a high-profile 1993 jury trial
as compensation for injuries the plaintiffs believed had arisen from exposure
to organic compounds in Waterside's indoor air.
But the D.C. court recently determined that only one EPA employee -- the
one who'd been physically injured -- should receive compensation. "Somatization
(or psychosomatic illness) is not a compensable injury in these circumstances,"
the court concluded. Civil suits aren't the only legal mechanisms used to
litigate IAQ complaints.
In New York workers' compensation cases based on IAQ complaints are increasing,
says attorney Mark Diamond. In particular, there have been numerous environmental
tobacco smoke (ETS) cases in which plaintiffs allege work-related illnesses
due to the smoke. "These ETS cases are setting the stage for other
IAQ cases," Diamond says. "It isn't too far a leap to go from
ETS to carpet adhesives."
ETS also has surfaced in complaints being litigated under the Americans
with Disabilities Act (ADA). Some of the cases involve workers who have
severe asthma conditions, says Kenneth Morse, a U.S. Equal Employment Opportunity
Commission (EEOC) attorney.
But it isn't just ETS that falls under the cloak of ADA. Many of the 300-plus
ADA-related calls EEOC program analyst Edward McCaffey fields each year
involve chemical sensitivities. Many callers report minor sensitivities
that don't fall under ADA's "substantial impairment" definition.
But for building owners, minor cases can develop into serious ones. "What
oftentimes happens is that a relatively minor complaint, which could have
been resolved with a minor adjustment, becomes a serious impairment -- serious
enough to prevent an employee from working," says McCaffey, who works
out of EEOC's Philadelphia office "That employee, then, can make a
claim under ADA, but more often files a workers' compensation claim because
they become unable to work. (And) workers' comp claims can be real killers,
depending on the state."
All this may leave building owners and facility managers in a bit of a fog
when it comes to preparing for an IAQ suit. But for lawyers, one thing is
becoming clear: Building owners can be their own best friends or their own
worst enemies. If they're prepared, and can prove through documentation
that they've properly maintained the HVAC system and taken all IAQ precautions,
building owners stand a much better chance in a lawsuit, Diamond says.
Point of Law
About 75 percent of the people who take the bar examination in the United
States get a passing grade. In contrast, only 2 percent pass the bar examination
in Japan.
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