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Secondhand Smoke Ruling May Set Precedent

The decision in favor of Greenbelt Homes may mean there is a level of acceptable secondhand smoke exposure in communities.

The Greenbelt secondhand smoke trial came to a quick conclusion today after a lengthy trial. Judge Albert Northrop ruled David Schuman deserved no compensation for his claim that his neighbor’s secondhand smoke created a nuisance that Greenbelt Homes Inc. (GHI) failed to solve. 

Northrop noted if he had ruled in favor of Schuman the case would set the precedent for action on secondhand smoke claims not just for condominiums and townhomes, but also single-family homes.

Instead, Northrop said that the level of secondhand smoke entering David Schuman’s townhouse was not an actionable nuisance. Nor did he see bad faith in GHI's handling of Schuman’s complaints.

After the decision was read, David Schuman and his attorney, J. P. Szymkowicz walked out of the courtroom and retreated to a conference room.

“We’re very pleased with the outcome,” said Gretchen Overdurff, GHI general manager, after the decision was read, “It was appropriate and our counsel did a good job.”

Defense Argues on Behalf of GHI

GHI lawyer Jason Fisher broke down the facts during his closing arguments.

He said the plaintiff had not proven any monetary damages as a result of the secondhand smoke.

“Where’s the basis to award one cent?” he asked, and turned to the plaintiff, “You have no evidence submitted whatsoever to give a dollar figure.”

Fisher pointed out that members living in GHI—an historic community of about 1,600 closely situated townhouses—have to deal with small inconveniences on a daily basis.

He also noted that the GHI members that testified said they had smelled, heard or experienced something in GHI that they may not have liked, but tolerated.

Arguing that GHI acted amicably in the complaints, Fisher referenced the hearing GHI gave Schuman and talked about how GHI offered to reseal his unit a second time.

He then said there was a significant possibility that Schuman’s own renovations in late 2008 caused the smoke problem to come back. 

In court, Fisher displayed a giant poster board before the courtroom containing a diagram of Schuman’s townhouse. He had highlighted the regions where Schuman’s renovations were done and then laid red circles over areas where Schuman had claimed that he smelled smoke. The red and yellow overlapped.

During the preliminary injunction hearings, Judge Northrop had said it was not appropriate to consider the renovations as the cause of the smoke.

During his ruling, he said, "he didn't have all the details" previously, after hearing closing arguments, however, he said he couldn't rule out the renovations as a cause.

Fisher said the “smoking gun” in the case was when James Repace, the biophysicist hired by the plaintiff found the same level of cancer-causing particles with his monitor in the smoke-free courtroom as he had in Schuman’s living room while Darko Popovic was smoking outside.

“Shouldn’t that create a cause of action for everybody in here?” he asked.

Repace said after the trial that Fisher’s argument was bogus and showed a lack of understanding.

The Plaintiff's Side Rests its Case

The lawyers for the plaintiff rested their case on the arguments presented in a 156-page brief filed with the court about a week before closing arguments.

During his closing argument, Schuman's attorney J.P. Szymkowicz recalled the testimony of the defense’s expert witness Dr. Ronald Gots. He said Gots said the levels of secondhand smoke suffered by Schuman might cause a medical problem in 2 out of 10,000 people.

“What would it be like to be one of those two people?” asked Szymkowicz.

Judge Northrop Explains His Ruling

After closing arguments, Judge Northrop told his own story. He said he grew up in a home where his dad had smoked regularly. He added that he was asthmatic as a child growing up and that his sister died in 2001 of lung cancer, caused by smoking.

Northrop said in Maryland smoking has already been banned in restaurants and courthouses. Legislatures have looked at it and chosen not to ban it generally. It's a decision that's going to have to be made by the legislature, he said.

“There needs to be actionable harm,” said Northrop, “I can’t find there’s an actionable nuisance in this case.”

Northrop found in favor of the defendant on eight of the nine counts, but he granted a permanent injunction against inside smoking by Mr. and Mrs. Popovic.

The Popovics are still able to smoke outside. Darko noted to the court that his wife has already quit smoking due to a brain tumor, unrelated to her smoking, and that he currently only smokes outside.

Schuman Says He Has to Move

After about 15 minutes huddled inside a conference room after Northrop's decision, David Schuman emerged and said he was very disappointed in the outcome of the case.

“I’m going to have to move,” Schuman said, “If I can sell the house.”

He said the likelihood of others bringing another case like this one to court will be very difficult if not impossible. For his part, he said he would have to evaluate whether to appeal.

More Cases to Come

Gathered in the courtroom on Thursday were at least two other people that had similar cases to Schuman’s.

One said that she too suffered from secondhand smoke problems in her home. She said J.P. Szymkowicz was her attorney. Another complained in the hallway to Szymkowicz’ mother about her problems with secondhand smoke.

James Repace said he had signed up two new clients to test for secondhand smoke in their home since the trial began.

Before leaving the courthouse, Jason Fisher, attorney for GHI, discussed secondhand smoke cases and declared, “I think you’ll see more cases like this, and they’re going to get better at it each time.”

Marlene Bakken November 20, 2011 at 01:32 AM
Repace said after the trial that Fisher’s argument was bogus and showed a lack of understanding. WE DO "UNDERSTAND" REPACE, WE DO. THERE IS A NATIONAL CRUSADE AGAINST BULLYING, I SUGGEST HE TAKE NOTE OF THAT!
JohnE November 25, 2011 at 07:04 PM
http://neil.klepeis.net/ongoing-projects -- Tobacco smoke particles travel from unit to unit through cracks in fixtures, electrical outlets, pipes, vents and baseboards; as well as through shared ventilation systems and windows. -- As much as 30-50 percent of air comes from other units. -- Both old and new buildings are affected. -- Tobacco smoke particles in units of non-smokers can reach significant levels equal to and exceeding those of a smoky bar or casino. http://www.atvn.org/news/2011/11/secondhand-smoke-threat-those-living-multi-unit-homes#comment-768
JohnE November 25, 2011 at 07:05 PM
This Klepsis must be a magician too! or using the same computer programs as the global warming scammers!
Marlene Bakken November 25, 2011 at 07:36 PM
Now that global warming has been exposed for the fraud that it is, the exact same thing should happen with the second hand smoke scam. Pharma stands to gain tens of billions demonizing an entire population and forcing them to use their own brand of high priced nicotine, a drop in a piece of chiclet gum for $50 a box. They pay for fake "studies" and convince our dumb legislators that bans are needed to "protect" others. Now that they've strapped smokers into quitting, pharma is making a LOT of new drugs from constituents of none other than nicotine! They can't patent nature, they can only force people from using natural products. Tobacco is just one plant they've succeeded in banning the use of, and on private property which was once a Constitutionally protected right! That's an even bigger scam than global warming because it's actually worked!
JohnE November 25, 2011 at 07:55 PM
Wait for the GLOBAL LINK emails to appear!

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