2009-03-11, 08:43

Evacuation from Building in 1993 Supports Lawsuit for Emotional Distress a Decade Later

By: Multifamily Real Estate Industry Team
Plaintiffs who purchased a former manufacturing facility in Hoboken, New Jersey, for conversion to loft apartments brought emotional distress claims against prior owners after it was discovered that their newly remodeled 16-loft building contained puddles of mercury under the floor which caused detectable levels of mercury vapors in the air.

The building was purchased by the Plaintiffs in 1993 and was converted into 16 loft condominium living/working spaces. During renovation in 1995, Plaintiffs discovered puddles of mercury between layers of flooring and in crawl spaces. They subsequently learned that the building was used from 1910 to 1964 to manufacture mercury vapor lamps. (See report about Hoboken, New Jersey site by Purdue University, http://www.purdue.edu/envirosoft/mercbuild/src/know.htm#case)

In January 1996, the building was evacuated by local health authorities, and was subsequently named by the United States Environmental Protection Agency (EPA) as a Superfund site in 1997. The site underwent an extensive 10-year cleanup which cost an estimated $14 million and resulted in the building being demolished. (http://www.epa.gov/superfund/sites/rods/fulltext/r0297166.pdf)

In 1996 Plaintiffs filed suit against the former owners in Federal Court for property damage and personal injury claims. The case was consolidated with the claims brought by the EPA and the matter was ultimately settled and dismissed. (Parker v. General Electric, 96-CV-3774) In 2007, Plaintiffs filed suit in New Jersey State Court claiming physical injury and emotional distress under the theory of strict liability based on the abnormally dangerous activity doctrine. (Schley v. General Electric, L-251-07)

In the Schley case, Plaintiffs’ expert opined that most of the Plaintiffs had signs of significant psychological distress, and three Plaintiffs actually showed symptoms of post-traumatic stress disorder. Plaintiffs’ claims of emotional distress stemmed from being forced to evacuate their homes and undergo medical screenings.

The New Jersey court denied the Defendants’ motion to dismiss the claim, rejecting Defendants’ arguments that Plaintiffs’ expert evidence of emotional distress consisted solely of inadmissible net opinions. Judge Sarkisian found that the expert reports were not merely net opinions because the reports stated facts and provided scientific methodology on which their conclusions were based and were thus valid. Judge Sarkisian also agreed with the Plaintiffs that New Jersey law did not have a “bright-line rule” requiring expert testimony prove emotional distress claims. Judge Sarkisian found that Plaintiffs’ claims of distress were not frivolous and were distinguishable from aggravation, embarrassment, headaches, and loss of sleep, which have all been deemed insufficient in other cases. (http://www.law.com/jsp/article.jsp?id=1202428006961)

(This entry posted by John Sweeney, Sky Woodward, Erin Miller and Jim Mitchell, all members of Womble Carlyle's Products Liability Litigation team)


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