Schuman v. Greenbelt Homes - Record Extract Volume 3 of 4

IN THE COURT OF SPECIAL APPEALS OF MARYLAND --------------------------------------------------------------------------------------Number 2020 September Term, 2011 --------------------------------------------------------------------------------------DAVID S. SCHUMAN, Appellant v.
GREENBELT HOMES, INC., et al. Appellees --------------------------------------------------------------------------------------On Appeal from the Circuit Court for Prince Georges County Albert W. Northrop, Associate Judge --------------------------------------------------------------------------------------APPELLANT DAVID S. SCHUMANS RECORD EXTRACT Volume III of IV --------------------------------------------------------------------------------------J.P. Szymkowicz John T. Szymkowicz SZYMKOWICZ & SZYMKOWICZ, LLP 2300 N Street, N.W., Suite 5310 Washington, DC 20037-1122 (202) 862-8500 (voice) jp@szymkowicz.com john@szymkowicz.com Rita Turner 15600 Bald Eagle School Road Brandywine, Maryland 20613 (410) 706-1129 (voice) rturner@law.umaryland.edu
Counsel for Appellant David S. Schuman
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IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND DAVID S. SCHUMAN, Plaintiff, vs. GREENBELT HOMES, INC., et al, Defendant. _______________________/ CIVIL ACTION LAW 10-06047
REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Trial Before the Court) VOLUME IV OF VII Upper Marlboro, Maryland Monday, August 22nd, 2011
BEFORE: HONORABLE ALBERT W. NORTHROP, Associate Judge
Record Extract Page 915
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Diana L. Wakefield, RMR Official Court Reporter P.O. Box 401 Upper Marlboro, Maryland DARKO POPOVIC, PRO SE For the Defendant GHI: JASON FISHER, ESQUIRE MICHAEL GOECKE, ESQUIRE APPEARANCES: For the Plaintiff: J. P. SZYMKOWICZ, ESQUIRE RITA TURNER, ESQUIRE
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P R O C E E D I N G S THE DEPUTY CLERK: Greenbelt Homes, et. al. MR. SZYMKOWICZ: Good morning, Your Honor. CAL10-06047, Schuman versus
J. P. Szymkowicz on behalf of Mr. Schuman, along with Rita Turner. MR. FISHER: nice weekend. Good morning. I hope you had a
Jason Fisher and Michael Goecke on behalf
of Greenbelt Homes, Inc.; with us is Gretchen Overdurff. MS. OVERDURFF: MR. POPOVIC: Good morning. Good morning. Darko Popovic, pro
THE COURT:
Good morning.
Preliminarily, I have been thinking about a lot of other stuff over the weekend, but I did take a moment to think about Plaintiff's No. 33 and 34. I'm going to
admit those not necessarily for the truth of the matters asserted, but if nothing else, there's still questions, obviously questions with regard to the Greenbelt Homes, whether or not they should have contractually done more to abate the nuisance. Part of that issue would require a
question of just what notice they had; not necessarily notice of facts contained in those two exhibits, but notice that there's something, at least, to look at. would be the consideration; could go to whether or not That
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they were -- had an obligation to explore further, if nothing else; so, on that basis, I'm going to go ahead and admit 33 and 34, ever mindful, of course, as I mentioned before, not dealing with six people in the box, and hopefully, I cannot -- to suggest that they would be any less capable, but, perhaps, my training is in this field; is more than theirs, if nothing else. Okay.
(Whereupon Plaintiff's Exhibit Nos. 33 through 34 were marked for identification.) MR. SZYMKOWICZ: done. MR. FISHER: I take it, "We are done," to mean As I explained before, we are
Plaintiff rests their case? THE COURT: MR. FISHER: Plaintiff rests. In light of that, I do have a
Motion to make for Judgment before the Court. Essentially, Your Honor, there are three issues before the Court with respect to Greenbelt Homes, Inc. One is the Plaintiff's request for punitive damages, one is the claim for negligence, and one is the claim for breach of covenant of quiet enjoyment. It is with the
first two issues I'm going to focus with respect to the motion I bring before you now. First, Your Honor, when a Defendant moves for judgment at the close of evidence presented by the
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Plaintiff in an action, Trial Before the Court as opposed to a Jury, the Trial Court is now compelled to view the evidence in the light most favorable to the Plaintiff. Your Honor, as the trier of fact, has the ability to make the actual findings based upon what evidence you have heard before you, and make a ruling based upon those facts when you hear a Motion for Judgment. Your Honor, specifically with respect to the punitive damage claims, under Maryland law, the award of punitive damages is restricted; allowable only in tort actions. In order to support a claim for punitive
damages, a Plaintiff must present clear and convincing evidence that a Defendant's conduct, conduct was motivated by actual malice. The Maryland Court of Appeals, the purpose of punitive damages is to attempt to punish a Defendant whose conduct is characterized by evil motive, intent to injure or fraud. Your Honor has heard no evidence or testimony or anything factually presented to Your Honor and in the Plaintiff's case that goes to that issue. The Plaintiff
must feel actual malice, which has been defined as sense of conscious and deliberate wrongdoing, evil or wrongful motive, intent to injure, ill will or fraud. evidence or suggestion that GHI or any of its Again, no
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representatives acted with actual malice. In fact, Mr. Schuman's own letters showed he thanked the Board of Directors for their approach and response to his request; in his testimony before the Court, before Your Honor, he indicated he did not believe they were acting maliciously; in fact, they were cooperative and responsive to his requests; although, he disagreed with how they ultimately decided to move forward with respect to the issues against Mr. Popovic. Those
were motivated by any actual malice, ill will or improper motive or intent, no evidence to that effect. Beyond Mr. Schuman's testimony that Your Honor heard, you heard testimony from Dory Ipolito, who is also working in conjunction with Mr. Schuman along the way to complain to GHI about what was happening. Her testimony,
again, indicated that she did not believe that there was any malicious action by the Board of Directors or any of the GHI members. Again, Your Honor, if you review the actual documents which are in evidence, specifically, Your Honor, there are a number of letters, but, Your Honor, we have Exhibit No. 26. We have Plaintiff's Exhibit No. 27,
Plaintiff's Exhibits 28, 29, 31, 32, and, Your Honor, even the exhibits that you admitted this morning, 33 and 34, in no way suggest that there is any actual malice or
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wrongful, fraudulent intent by the Board of Directors. There is absolutely nothing presented that would show that they acted with injury required for a finding of punitive damages under Maryland law. Again, Your Honor, Schuman's testimony indicated his basis for asserting bad faith appears to come from a letter from GHI that was sent to him. As Your Honor found
on the record earlier, Your Honor, in this case you made a factual finding that the letter in question, with respect to that, sent from GHI to -- on to Mr. Schuman, in fact, did not tell him to move out. That appears to be Mr.
Schuman's prominent basis for asserting there was some actual malice. Your Honor made a factual finding,
properly, that that letter did not tell him to move out of the property. Your Honor, as there has been nothing presented to show any actual malice, improper motive, intent or fraud by the Board of Directors of GHI, there's been no demonstration of any facts that would go to an award of punitive damages, and we would ask that Your Honor make a finding that punitive damages is not something that Mr. Schuman would be able to proceed on in this case and dismiss that case out now; dismiss that punitive damage claim out now, Your Honor. Again, Your Honor, in the case of punitive
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damages, he must show by clear and convincing evidence, and there has been nothing that rises to that level to demonstrate a basis for punitive damages, let alone the higher standard of clear and convincing evidence. Your Honor, moving on to the claim of negligence. Plaintiff has not presented any evidence to To recover
satisfy the requisite elements of negligence.
under the claim of negligence, a Plaintiff must prove there was a duty to protect the Plaintiff from injury in this case. Mr. Schuman appears to be attempting to
demonstrate that he's supposed to be protected from any and all injury, any risk of harm from his neighbor by GHI; that the Defendant breached that duty; that the Plaintiff suffered actual injury or loss, and that the loss or injury proximately resulted from GHI's breach of that duty; so, we are not talking about the conduct of Mr. Popovic directly, but how GHI's conduct and alleged negligence would relate to those elements. Your Honor, Plaintiff must present evidence that GHI violated the standard of care that is reasonable and prudent of a cooperative in the same or similar conditions that they would have followed. Not only has Your Honor
not heard any evidence with respect to the requisite standard of care, but more importantly, Your Honor, the issue of standard of care, there's been no testimony or
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evidence to establish that there was a breach of the standard of care. Keep in mind, Your Honor, that we are
talking about a Board of Directors of a cooperative in the State of Maryland, and there has been no evidence or testimony as to the appropriate standard of care, cooperative board sitting in its context; even if Your Honor would infer that, you would apply the general corporate duties of Board of Directors which may be proper here. That standard, as set forth in Maryland statutes,
describes the duties, care owed by Directors when they undertake managerial decisions on behalf of the corporation; does not provide that they do anything more than that required by their governing documents. Your Honor, further, in this case we are talking about the duty owed by a cooperative board to one of its members. The business and affairs of a corporation and
that of GHI, including their decision to institute action against a member and its management, generally is at the discretion of the Board of Directors exercising their reasonable action judgment. Your Honor, there has been no demonstration or evidence presented that they acted in bad faith. Similarly to the arguments that I made with respect to the facts that Your Honor has not heard on punitive damages, relate similarly to the issue of negligence with respect
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to whether they breached any duty owed to Mr. Schuman. Again, Your Honor, the standard of care would be that they acted as a reasonable prudent Board of Directors, and the Business Judgment Rule does apply to the situation. Even if Your Honor didn't focus on the Business Judgment Rule, you still have the issue of the standard of care. There has been nothing presented to go to a breach This isn't a
of the standard of care by this Board. derivative action.
Even if it were, Your Honor, again
even in those situations, the decisions by a Board of Directors are insulated from judicial review absent a showing of fraud, self-dealing, unconscionable conduct or bad faith, Your Honor, that was set forth in the Maryland cases time and time again. Your Honor heard arguments previous in this case; I won't go back to cite all the case law. Your
Honor had previous motions submitted to Your Honor on the Business Judgment Rule which set that standard. Not only
has there been no testimony about what the appropriate standard of care for the cooperative board, but there has been nothing suggested they breached it. No need to
protect members, of all risk of harm under -- Even under the associations bylaws and Mutual Ownership Contract, nothing in those documents suggest they have to protect Mr. Schuman from all risks of harm. At most, those
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documents demonstrate that they have an obligation to comply with the provisions so long as, again, Your Honor, that they are not acting in bad faith or fraudulently. Directors of a Maryland corporation stand in a fiduciary relationship to the corporations that they manage and the shareholders of those corporations, and the relationship that imposes on Directors under Maryland statutory law, Your Honor, is a duty of care, loyalty and acting in good faith. Your Honor, that was clearly defined in Shenker
versus Laureate Education, Inc., 411 Md. 317, which is a 2009 case. Your Honor, under section 2-419 or 5.1 of the
Maryland Corporations and Associations Article, it sets forth that standard, and statutorily requires a Board of Directors, again, Your Honor, to act in good faith and in a manner he reasonably believes to be in the best interest of the corporation with the care that an ordinarily prudent person in a like position would use under similar circumstancees. Again, Your Honor, we have heard nothing from the testimony about the standard of care of a cooperative board sitting in a similar situation nor that they acted to breach the duty of loyalty, care and that of a prudent person sitting in a similar situation. There has been no
evidence that GHI's actions were the proximate cause to any harm of Mr. Schuman.
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Even assuming, if the Court were to believe that some evidence of actual damage had been presented, which we dispute, that is recoverable, Plaintiff needs to show some nexus between GHI's injuries and the injuries that Mr. Schuman claims he suffered. Here, Mr. Popovic is the smoker. There's no
rule that prohibits smoking, and any determination about what constitutes a nuisance under the Mutual Ownership Contract and bylaws is determined by -- solely by its Board of Directors. Again, Your Honor, that is protected Here the Board
by the Business Judgment Rule standard.
did not find a breach or determined that it could or should stop, or order Mr. Popovic to stop smoking in light of the fact there's no clear rule that prohibitss smoking in the property. Again, Your Honor, Mr. Schuman's own
claim is that there's no specific rule, but that under the general nuisance provision, that they should be ordered or be found negligent for failing to enforce it. Your Honor,
that's more akin to a breach of contract claim, if anything; certainly, not a negligence claim. Even if Your
Honor would interpret it to apply in this context, we are not talking about anything other than whether the Board acted prudently under the association's governing documents, which Your Honor, again, there has been no demonstration of bad faith.
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Again, Your Honor, with respect to the final elements of damages, even if Plaintiff were to establish that GHI had a duty to protect him from all migration of secondhand smoke and that GHI breached that duty, Plaintiffs must prove that he suffered actual and specific damages which were proximately caused by the breach. Again, Your Honor, here, Mr. Popovic is the GHI did nothing other than apply their governing
documents, review the issues reasonably and make the determination, in this situation, that they were not going to evict Mr. Popovic based upon his conduct, and again, Your Honor, I would point out, under the Mutual Ownership Contract and the clause Mr. Schuman testified to under the documents, Your Honor, the provision about eviction of someone who violates the provisions of the Mutual Ownership Contract would result in an eviction is at the discretion of the Board of Directors. Again, Your Honor, It's
that implicates, again, the Business Judgment Rule. not required.
It's something that they may do, and, Your
Honor, they can only get to the point of eviction of somebody once they make a determination, A, been a violation; B, they have gone through a process and made a finding that there's a violation and that they want to evict. Again, Your Honor, all those things invoke the We are
Business Judgment Rule on Application of Contract.
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not hear talking about a breach of contract case.
We are
talking about a negligence claim, and because of that, Your Honor, because he's failed to present any evidence as to the standard of care being breached and for the other things that I have argued with respect to causation, the negligence claim cannot survive, cannot survive and should not survive. To go further in this case, Your Honor, with respect to the breach of covenant of quiet enjoyment, Your Honor -- Your Honor, at this time, other than the damages aspect, we are not moving for judgment on that claim. We
are making a viable decision here, Your Honor, that based upon the facts, that the two main aspects of what Plaintiff has failed to present any issues on is with respect to punitive damages and hasn't sustained his claim for negligence; so, what we are asking the Court to do, Your Honor, is make a finding, as a matter of law, you, at this point of time, that those claims cannot be sustained further in this case and should be dismissed at this time. Your Honor would still have the opportunity to hear testimony with respect to the other claims against Mr. Popovic. And even the claim of the breach of covenant of quite enjoyment, Your Honor, we are not conceding that claim. We also believe that that should not survive, Your
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Honor; for purposes of this motion, at this time, we are moving on the punitive damages, negligence claims because we think, clearly, the evidence has not demonstrated a sufficient basis to go forward, and Your Honor, sitting as trier of fact at this stage, has the ability to dismiss these claims now. Thank you, Your Honor MR. SZYMKOWICZ: Your Honor, with regard to the
punitives, I believe that the evidence that supports a punitive judgment finding is that there was knowing and deliberate wrongdoing in the fact that GHI had knowledge that the secondhand smoke was illegal; was harmful to Mr. Schuman, and they just didn't do anything about it; so, that would support a finding under the negligence theory. Moving to the Business Judgment Rule, the Business Judgment Rule does not apply and does not preclude litigation of, either in tort or contract, against a corporation. And the cite for that is Sadler,
S-A-D-L-E-R, versus Dimensions Healthcare, Corp, 378 Md. 509. In Sadler, the Court found that, quote, "The
Business Judgment Rule, which limits the Court's role in reversing the actions of the corporation, has never precluded full litigation of complaints sounding in tort or contract against the corporation. A corporation is a
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private entity; may be held liable for tortious conduct and breaches of the contract perpetrated by its Officers, Directors and agents against third-parties. Sadler case. With regard to negligence, the elements, of course, are that the Defendant was under a duty to protect the Plaintiff from injury. The Defendant breached that 532 of the
duty; that the Plaintiff suffered actual injury, and that the loss or injury proximately resulted from the Defendant's breach. have to repeat that. Black letter law. I'm sure I didn't The duty
The breach -- I'm sorry.
is found not only in the common law but also in the contracts that are at issue and that are in evidence, the Mutual Ownership Contract. action. GHI had the duty to take
They didn't, and that leads to the breach of And case on that is almost exactly on
quiet enjoyment.
point, if not exactly on point, Bocchini, B-O-C-C-H-I-N-I, versus Gorn Management Company. That's 69 Md.App. Number
1, at page four, and that's a 1986 case in the Court of Special Appeals. In that case, a woman rented an
apartment, and there was a lady that moved in upstairs with a man that she kept company with, whatever that means. And the apartment had no carpet on the floors, and
the lady was walking around at all hours and had a very loud alarm clock that went off at 5:00 a.m. The victim of
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the noise complained to the landlord, and the landlord informed the victim that, quote, it was not going to take any action regarding the problem. of the opinion. And that's on page five
In Bocchini, the Court observed that a
lessee who holds under one who was a TENANT DOCUMENT DOCUMENT a fee in the premises DEMISE is entitled to the quiet enjoyment of them during his term, and there is an implied covenant to that effect on the part of the lessor in the case where none is expressed contrary be not stated above document document and the quiet enjoyment covenant insulates against acts or omissions on the part of landlord or anyone claiming under him which interferes with the tenant's right to use or enjoy the premises for the contemplated purposes. It's implied in every lease
absent a provision negating that, which we don't think here, with regard to the conditions caused by other tenants the in choeferp the lease provision; otherwise, the landlord has the ability to correct or terminate the actions of tenant. The thought is that the landlord ought not be able to escape his obligation under covenant of quiet enjoyment by steadfastly refusing to exercise his authority. That's exactly what GHI did in this case. The
insertion of, in a lease, of restriction against excessive
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noise or other offensive conduct is precisely for the purpose of enabling the landlord to control that conduct. It's principal function, at least in a multi-unit apartment lease, is to protect the rights of other tenants to the quiet enjoyment of their homes by allowing the landlord to evict the tenant who transgresses upon that right. And that's what we he have here. GHI could have
done something.
They didn't, and that they steadfastly
refused to do anything after finding that this was aggravating and annoying, et cetera, et cetera, et cetera, et cetera; so, therefore, the Business Judgment Rule doesn't apply, and our case should proceed. MR. FISHER: Your Honor, just to respond
briefly, again, Your Honor, this is simple. Mr. Szymkowicz does not talk about the standard of care of negligence, and that is the -- that's what they needed to do to sustain a claim for negligence. I have heard no
testimony; nothing has been presented to refute the good faith actions by this Board of Directors. It's not simple There
enough to say, well, they didn't act in good faith.
has to be some testimony, some evidence to suggest they breached the standard of care under Maryland law. Under the statutory law, Your Honor, Board of Directors are believed and presumed to act in good faith unless there's some contravening evidence to suggest they
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went beyond that, and again, Your Honor, in this case, they would have to show bad faith. If Mr. Szymkowicz' reliance on the duty comes from the Mutual Ownership Contract and governing documents, the bylaws, Your Honor, he has to demonstrate that they breached some obligation. We are not suggesting
that a claim against the corporation cannot be sustained simply because the Business Judgment Rule. I agree, Your
Honor, that a case sounding in tort or contract can still stand; can still be sustained. What we are saying, Your
Honor, in this situation, once he gets to actually alleging the tort, you have got to prove the elements. this case, Your Honor, we don't believe he has done that for the reasons I stated before. While he may be able to In
proceed on the breach of the covenant of quiet enjoyment, negligence and punitive damages simply have not been demonstrated to allow this to proceed against GHI on those two aspects. THE COURT: MR. POPOVIC: join. THE COURT: punitive damages. Okay. I can't find any basis for Mr. Popovic, you have any comments? No. I agree with Mr. Fisher. I
No indication of fraud, no indication
of -- reasonable indication of malice, and as was pointed out, in any number of bits of correspondence showing
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appreciation for, up until the end, of the efforts by the Board, I'll dismiss the punitive damages taking the testimony in the light most favorable to the nonmoving party, even though I'm the trier of fact at this juncture, at this point, I'm going to deny the Motion on the other two issues, and I can think of how they fall into place, but I'm not going to make anybody's argument for them. I'll dismiss on the punitives, however. THE DEPUTY CLERK: THE COURT: That is a count? I
That brings up the next issue.
think the Court of Special Appeals still has our copy of the Complaint. copy. MR. GOECKE: But to answer your question, Your At some point, if somebody can get me a
Honor, to answer the question, the punitives are not a separate claim; really sought as part of the negligence, Count Five. THE COURT: Punitive -MR. SZYMKOWICZ: Actually think I can e-mail the Negligence Count will remain.
entire record extract and give you the entire Court file. It's in the record extract. If the Court has the record
extract, the Complaint would be in there just for -- and the record extract is a big bound yellow covered copy. THE COURT: Just the Complaint is all I need.
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MR. SZYMKOWICZ: THE COURT: Okay.
I can e-mail it at the break.
Mr. Fisher, how many witnesses do you have? MR. FISHER: Your Honor, at this time, we
anticipate three witnesses. THE COURT: MR. FISHER: Your Honor. (Off the record discussion ensued.) MR. FISHER: Your Honor, we believe that our Okay. Ball park estimate of time?
Probably -- Court's Indulgence,
Direct Examination of our three witnesses probably, in total, will take two, maybe two-and-a-half hours at most. THE COURT: I'm just trying to decide if we have
to tell the Assignment Office we'll be here tomorrow morning. MR. SZYMKOWICZ: Your Honor. MR. FISHER: I would think we should be able to I would be shocked if we were,
MR. SZYMKOWICZ:
We'll know after lunch,
depending on how fast we get through this. THE COURT: MR. GOECKE: Okay. Your Honor, the Defense, Greenbelt
Homes, Inc., would like to call Dr. Ronald Gots as its first witness.
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MR. SZYMKOWICZ: calling of Dr. Gots.
Your Honor, we objected to the
In any event, we asked for, in
discovery, the standard interrogatory question; that is: For each witness you have retained or specifically -specially employed to provide expert testimony in this case or employed by you whose duties regularly involve giving expert testimony and whom you expect to testify at trial, identify such individual and provide a complete statement of the opinions to be expressed and the basis and reasons therefore. number nine. The answer to that, at least in the first set of discovery, which I think they sent back last summer, was Greenbelt -- strike that -- is: At this time, Greenbelt That was standard interrogatory
has not retained or specially employed any expert to provide testimony in this case. Greenbelt reserves the
right to supplement this response if and when it retains any expert. In December, GHI sent over the curriculum vitae of Dr. Gots, but no report, and then we took his deposition, but he didn't really say anything in his deposition; because we didn't have anything to go on, and we had no reports or anything -- he gave some bases -- he gave some opinions, but no real basis for his findings. And after the deposition was taken, GHI sent
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over a supplement to their interrogatory response, and it stated that Greenbelt incorporates and directs Plaintiff to its identification of experts which it served on Plaintiff on November 22nd, 2010. Greenbelt further
incorporates the testimony of Dr. Ronald Gots from his deposition taken on May 17th, 2011. In addition to the
topics addressed in GHI's identification of experts and Dr. Gots' deposition, Dr. Gots is expected to rebutt the testimony of James Repace and/or any medical testimony provided on Plaintiff's behalf. That doesn't answer the question. He never gave
the complete statement of the opinions to be expressed; more importantly, he never gave the basis and reasons thereof; so, therefore, we ask that Dr. Gots be stricken; not allowed to be called; add an opinion. THE COURT: When his deposition was taken, if he
expressed an opinion, then was there a question with regard to the basis of the opinion? MR. SZYMKOWICZ: I'm not sure, but, you know,
there was definitely -- I don't think that we got the answers that -- I don't think that we got the entire stuff we were looking for. We asked for a complete statement of
the opinions and the basis and reasons therefore. Moreover, we asked, in a document request, all documents, including but not limited to full agreements
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and correspondence provided to, received from or prepared by each expert you intend to call as a witness at trial in this matter. And GHI didn't provide any documents, so you know, it's -- we are in a really tough position because we really don't know what Dr. Gots' opinions are, if he did state opinions. I can provide the Court, for its review,
there's really not a lot of opinions that he, in his own deposition, stated he was going to talk about. You know,
we are in a real hard road because we don't know the basis of those opinions because he, frankly, didn't have any. He was at his deposition. He was even questioning the
findings of the Surgeon General this Court has taken judicial notice of, which I think would be extremely difficult to do so; moreover, I think he even testified that he hadn't even looked at certainly the 2010 Surgeon General's Report. If you are going to be an expert on
secondhand smoke, I would expect you would do that. And furthermore, I had a case with Dr. Gots about a month ago, and even a month ago, he hadn't read it; so, it's just a really strange situation and would like to get him stricken for those reasons. MR. GOECKE: Certainly things, in response, Your
Honor, first to the extent that they want to preclude Dr. Gots' testimony because we provided no written report,
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there's no requirement, under the Maryland Rules, that an expert prepare a report; in fact, Dr. Gots has prepared no report in this case; so, the document that he wants does not exist; so, we can never have produced it. As Mr. Szymkowicz concedes, we supplemented our initial responses to interrogatories and identified Dr. Gots as a witness. We also provided expert
disclosures in which we identified Dr. Gots and the areas upon which he was going to testify. for deposition. We provided Dr. Gots
Plaintiff chose just to limit that
deposition to one hour, and so because of that, perhaps he didn't get all the questions answered that he wanted to. Dr. Gots is Board certified in toxicology. can talk about the carcinogens and secondhand smoke. can talk about how that affects the body. He can talk He He
about how symptoms may create -- exist in a person who has been told what symptoms may be upon exposure. We said
that he was going to rebut any medical testimony and any testimony from Mr. Repace; so, he's here also to rebut their testimony today. Moreover, Your Honor, this is the first we have heard of any of this complaint. filed a Motion to Compel. Mr. Szymkowicz never
If he had a problem with any
deficiencies in our discovery, there was a lot of time for him to make that argument before we tried to present
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Dr. Gots as an expert; Dr. Gots as an expert here today, and, frankly, this happens just to be sandbagging to me, Your Honor. On top of that, they identified Dr. Munzer several months after the expert deadline had terminated, several months, and Your Honor, over our objection, allowed Dr. Munzer to testify. We deposed Dr. Munzer, and
when we deposed him, he said he didn't know what had caused Mr. Schuman's bronchitis and sinusitis. MR. SZYMKOWICZ: not in evidence. MR. GOECKE: And so now he has changed his I object to that because that's
testimony from his deposition. MR. SZYMKOWICZ: But, again, I object because
that wasn't brought out in the Cross-Examination. THE COURT: MR. GOECKE: No testimony to that. And Dr. Gots is here to rebut that
testimony in any event; so, there has been no violation of any rules. We have answered all the discovery. We
complied with all the deadlines.
We have produced all the
information they asked to, and I think Dr. Gots will be very helpful to the trier of fact in this complicated case. Thank you, Your Honor. MR. SZYMKOWICZ: Your Honor, if I may approach,
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I can show the exact interrogatory that was asked. THE COURT: Well, I'm going to cover that for
you in a minute, but any further argument? MR. SZYMKOWICZ: Well, no, except that Dr. Gots,
when we went into his deposition, he already had a copy of Dr. Munzer's report; so, you know, it wasn't like we went in, he hadn't had the benefit of that. It was shocking
how little Dr. Gots, A, knew about the case going into his deposition, and we have got the transcript right here, Your Honor. It was a one hour deposition, but it was a
one hour deposition because he didn't say anything, and that's the problem, and if the Court would like to take a break and review the deposition, I mean, there's just nothing there. It was one of the most fruitless
depositions I have ever taken in my life. MR. GOECKE: Your Honor, just briefly. The hour
time limit was agreed upon and requested by Plaintiff's Counsel beforehand. Secondly, Your Honor, in the other case Mr. Szymkowicz is referring to, Dr. Gots was allowed to testify as an expert even though, at that time, he had not read the 2010 Surgeon General Report. Furthermore, just as Dr. Munzer testified based on what he Heard in Court, Dr. Gots is allowed to testify on what he heard in Court, and he's going to offer
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testimony based on what he has heard in this Courtroom here, Your Honor. THE COURT: I'll let him testify. There's
certainly no surprise, but fairly particular about the discovery rules and certainly well aware of what sometimes is called the discovery game. He can testify, but if he
didn't give an answer to a direct question in a deposition or in discovery, I'll have to be convinced that he can give an answer now; so, if they said he gives an opinion, just for example, and there's an interrogatory question that you point out, and he didn't respond or didn't give an answer to the question about the basis of that opinion; giving that basis today, if there's an objection, is going to be -- the objection will be sustained. The purpose of discovery is to let everybody be on a level playing field as to what is coming up; letting people know leads to resolution of cases, all the things we all know about, and we don't sandbag and then bring it back later on; so, we will cross this bridge. be numerous objections along the way as we go. There may We will
look at the deposition's answers, look at the other things. Having said that, having an expert, our experts are allowed to stay in Court. Even in cases where there
is a rule on witnesses, the experts can stay; they can
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listen to the testimony; respond to testimony given in Open Court when appropriate. I can allow that.
Again, if there was a question, it's you have given this opinion; what is the basis of the opinion; he didn't give the basis before, not likely that he's going to give it now. Okay. MR. GOECKE: THE COURT: Thanks, Your Honor. All right.
(Witness sworn). THE DEPUTY CLERK: You may be seated. Thank you. Please state your first and
last name and spell them for the record. THE WITNESS: G-O-T-S. THE DEPUTY CLERK: MR. GOECKE: THE WITNESS: Thank you. Ronald, R-O-N-A-L-D, Gots,
Good morning, Dr. Gots. Good morning.
RONALD GOTS, a witness produced on call of the Defense, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. GOECKE: Q. A. Can you tell us what you do for a living? Yes. I do environmental and occupational
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toxicology.
I deal with the evaluation of causal I deal with
relationships between exposures and diseases.
patient concerns about exposures, risk communication, fairly active area of my professional life. I have done
epidemiological studies involving environmental exposures and risks thereof, and I have done a lot of work in the issue of different reasons and interface between regulatory toxicology versus scientific toxicology; in other words, the public policy of toxicology, which is quite different from basic toxicology. Q. A. How long have you been involved in these fields? Well, about thirty years. I got my
undergraduate degree in chemistry at the University of Pennsylvania, medicine degree from University of Pennsylvania School of Medicine. Hopkins Hospital. I interned at Johns
I did a year of residency at Harbor
UCLA Medical Center in Los Angeles County, and then got a PhD in pharmacology at the University of Southern California School of Medicine. The Army brought me here, and I was a member and chief of a research department at the Walter Reed Army Institute of Research; following which I started a consulting firm, 1975, and since about 1980, I have been primarily involved; not exclusively, but primarily involved in issues involving environmental exposures and
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occupational exposures to chemical agents of all sorts and their relationships to disease, and their relationships to public policy and their relationships to the concerns that people have about such exposures and symptoms that they may develop, and the basis of such exposures, and that has been my professional life. Q. So for the past 30 years, you focused primarily
on your consulting aspects of your profession? A. Yes, that's correct. I teach as well. I have
an appointment at Georgetown Medical School, and I'm going to be teaching an environmental toxicology course next year at George Washington, but, yes, I have been consulting predominantly through those many years. Q. But -- and you were not actively treating
patients, in the clinical sense, during that time? A. That's correct. I do see patients in the
context of environmental exposure issues; for example, I have been called on by medical directors of companies many times over the years to evaluate workers who have symptoms and to determine -- try to determine the basis or the reasons for those symptoms and whether or not there's some exposures in the workplace that may be accounting for them. Q. means? Doctor, can you tell us what Board certified
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A.
Yes, I'm Board certified in toxicology, and it
means that you've, first of all, met the basic requirements of that field; that you have been accepted by the Board as being able and appropriate to take the examination, and then that you have taken a very -- in this case, very rigorous examination, three-day examination, written exam, and passed it. Q. When did you become Board certified in
toxicology? A. Actually, just last year. I decided late in my
professional life that it was something I wanted to do, and so I studied for about six or eight months; took a review course, and took the exam; may be the oldest person to ever have taken that exam. Q. A. I don't know.
But you practiced in that field a long time? Yes, yes, yes. I practiced for years, and years
and years, but I had never taken the Board exam. Q. involve? A. Well, toxicology is the study of the ways in Tell us, generally, what does toxicology
which exogenous agents, agents coming from the outside or actually even certain inexogneous agents, things we produce ourselves, can have adverse effects on cells, on organs; how they do that, what the mechanisms of those effects are; how the body protects itself and repairs
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against such effects; how it eliminates materials from the body and gets rid of them so that they have become less potentially hazardous; so, it's the science of the ways in which agents affect the various organs or the entire human body. Q. And would toxicology incorporate the effects of
secondhand smoke or a person's exposure to secondhand smoke? A. Absolutely, as was pointed out well in this There are many, many, many chemicals,
matter so far.
thousands of chemicals in secondhand smoke, all of which are quite familiar to us, and there's nothing particularly unique about those chemicals. burning acitivities. We find them in wood
There are many of them are in
drinking water, extremely low levels, including PAHs mentioned as a carcinogen; so, there are many sources of all of those chemicals: formaldehyde, acrolein, chromium, I'm extremely
various things Mr. Repace talked about.
familiar with the effects, the toxicology effects of all those agents. Q. Doctor, do you have any experience in symptom
reporting and the relationship between hazard perception and the person's symptoms? A. Yes, substantially. I think that's important in
this case because there's been an implication that the
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fact that a person has symptoms means that he has been poisoned, and I think it's important to understand that in the context of concerns, worries, perceptions and fears, people develop symptoms whether or not they have actually been physically impacted by that particular activity. I wrote a book called Toxic Risks Science Regulation and Perception. This has been -- seventeen
years old, which highlights the distinctions between the science of toxicology perceptions and the regulation of toxic substances, and one of the things that, I guess, the first chapter in that book dealt with and matter that I was involved with, involved in, the Shreveport Firemen and Policemen who in about 1991 responded to an explosion and fire at the Los Angeles -- I'm sorry -- at the Louisiana State University School of Medicine in which a transformer blew up. And after they responded, the EPA came with
their space suits because the transformer contains the PCBs. There was a sign that said, Warning PCBs, after
which, the Firemen and Policemen, most of them but not all of them, most of them became symptomatic. sleep. They had headaches. They couldn't
They had eye irritation;
complained of all sorts of symptoms. I examined many of those people, and I did blood levels of PCBs, and found that in those blood levels, there was no difference between them and expected
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background levels of PCBs.
In fact, they had no physical
reasons for their symptoms, but they clearly were symptomatic. reasons. I wasn't denying that they had emotional
They believed that they had been poisoned by
PCBs, and that belief led to a very powerful sense of symptomatology. A more recent event, there have been hundreds of similar events, lots of literature on this issue about hazard perception and symptomatology; more recent one in this area was the evacuation of the National Airport about four years ago. Because someone let it be known there was People
a chemical loose in the airport, people were sick. passed out. They were taken to hospitals.
They were
vomiting, and when they did a thorough investigation, what they found was that there was rotting bananas in a waste basket, and that sense that there was something there and then the word getting out that there was a dangerous chemical in the environment led to a wide spread set of symptomatologies; so, those are just two examples of many, many, many that I have been involved in and seen over the years, but this issue of symptoms as a function of perceived hazards and not simply of direct toxicity is an important one and something essential to your discussions here, I believe. Q. As you alluded to, you sat throughout the
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entirety of this trial? A. Q. Yes, that's correct. You heard the testimony of both Mr. Repace and
Dr. Munzer? A. Q. injuries? A. Q. I have. Doctor, what experience do you have in chemical Absolutely. You also heard Mr. Schuman testify about his
carcinogens? A. Substantial. In an important part -- first of
all, I dealt with many, many matters over the years looking at causality where I have been asked to determine whether it's likely or not that a person's cancer arose from an exposure to an environmental agent in the environment either occupationally or through drinking water or through air emission of some kind; so, I have examined hundreds of matters involving questions of cancer arising from various exposures. Furthermore, I have studied this intentionally. A major part of our Board examination in toxicology dealt with chemical carcinogenesis. That is how chemicals do
their things; what they do to cause, produce or promote the development of the malignancy. Q. And you mentioned before that you have
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experience in epidemiology. in that area. A.
Tell us about your experience
I have actually run epidemiological studies.
Epidemiology is the study of, essentially, populaces. Having said that, that is a very broad and complex area where we can study many things in many kinds of outcomes. I have done -- I have set up epidemiology, an epidemiological study in Ohio. We were looking at a waste
treatment facility and trying to determine whether lead coming from a waste treatment facility was going to have an impact on the children; so, I worked with the State toxicologist to set up that study. A couple of years ago, I was involved as a principal in a very, very large indoor environmental study at the National Security Agency, NSA, where we looked at seven or eight thousand people and all sorts of virtual parameters, and made a determination about the factors in the environment that may not or may not have been injurious or effecting these individuals, but epidemiology is the study of the relationships between factors and outcomes. In the context of secondhand smoke,
which I think is the subject of today's proceedings, the epidemiological studies begin with the primary smokers, and that is what we have known for a substantial period of time, and that is that smoking causes a lot of diseases,
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including lung cancer, heart disease and many others. way we knew that is because of the epidemiological studies. I mean, you can take groups of smokers and
The
compare them to groups of nonsmokers and smokers, and you find substantially higher incidences of those diseases, lung cancer, heart disease, bladder cancer and others, in smokers than you do in nonsmokers, and then the studies developed dealing with secondhand smoke, and they're certainly at the higher levels of exposure to secondhand smoke; by higher levels, I mean the people, for example, in the hospitality industry, people working in bars, casino workers. I think some of the airline attendants
during the days when there was heavy smoking in airplanes, they have higher incidences of certain of these diseases as well. Those can be seen. When you get to lower levels of exposure; for example, even spousal studies, some of those are positive, and you can find relationships between various diseases and exposure to secondhand smoke in a spouse of a nonsmoking spouse, but some of those studies are negative, and it depends, in part, on how much they smoke and so forth, and because as you get to lower, lower, and lower and lower levels of exposure; in this case, lower and lower levels of secondhand smoke exposure, you can't find any relationships, and so most of those very lower levels
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are actually negative, those studies. It's not because they may not affect one in a hundred thousand people. a hundred thousand people. It's just we can't study one in Takes a million people to do a
study like that; so, you can't find it; so, there are negative studies involving secondhand smoke at the lowest levels that happen; that tend to be studied. Q. Thank you. Do you also have experience then, or
does your experience also incorporate the effect that chemical irritants may have on an individual? A. Q. A. Chemical what? Irritants. Oh, sure. Many of the effects that we deal with
in toxicology are irritant effects because they are often some of the early effects that one experiences, say, in a workplace. I have dealt with lots and lots of people in
workplaces who work with petroleum disstillants of various field aldehydes or work with emissions from various materials and activities that they are working with rubber manufacturing, steel plants. I have been in an enormous
numbers of occupational settings; so, irritation is something that we know a great deal about, and we have pretty good ideas of what levels of many chemicals actually produce irritation; I mean, for example, formaldehydes, which is one of the chemicals talked about
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here or chromium, chromium is another chemical been talked about, and they are both very common chemicals. Actually,
we have -- all have exposures to those, and we have very good information about what levels of those, information, actually produce irritation; so, irritation is something that I deal with regularly. Q. again? A. This one called Toxic Risks Science Regulation Okay. Doctor, tell us the name of your book
and Perception, and then I have a chapter, one of my -- I have written a lot of books and chapters, but this one is Textbooks of Occupational Medicine from 2004, and I have a chapter on risk communication, which deals with, again, many of the matters that are pertinent here, the difference between regulatory risks and policy versus the toxicology of risks, and also the perception of hazards, and how you talk to people when they have symptoms but -they are being poisoned, which is, again, something that is extremely common. Q. So you have a lot of experience then, in
assessing risk, and analyzing risk and talking about risk in terms of both the public policy perspective and for private individuals? A. Absolutely. MR. SZYMKOWICZ: I object to Mr. Goecke's
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testimony of a lot of work. THE COURT: I'll sustain on the leading nature
of the question, certainly. BY MR. GOECKE: Q. Dr. Gots, do you intend to offer testimony today
that will rebut the testimony Mr. Repace and Dr. Munzer? A. Certainly aspects of their testimony; not all; I Some of
mean, all of their testimony is not rebuttable.
it was accurate, but there are things that are rebuttable, yes. MR. GOECKE: At this time, we would like to move
for the admission of Dr. Gots as an expert in toxicology, including secondhand smoke and the carcinogens in secondhand smoke that may affect a person or populace. Also move to admit him as an expert in symptom reporting and the relationship between hazard perceptions and symptoms. We would also like to admit him as an
expert in risk assessment for private and public. THE COURT: Care to voir dire? VOIR DIRE EXAMINATION BY MR. SZYMKOWICZ: Q. A. Medicine. Q. That's not really an institute where there's a Dr. Gots, where are you employed today? The International Center for Toxicology
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lot of people working there. wife? A. Yes, as of today.
Is it just you and your
Last year, we had about
twenty-five people. Q. A. Q. A. Q. A. Q.
We have downsized.
Now it's just you and your wife? That's correct. You operate out of a shared office suite? Correct. Do you currently treat any patients? No. When is the last time you actively treated
patients, real patients? A. Q. As opposed to unreal patients? Well, as opposed looking -- in being hired by
the Defense? A. I did a lot of emergency medicine, and I think
the last time that I worked in the Emergency Departments, about 1980 or 1981; so, it's been 30 years at this point. Excuse me. I'm licensed to practice medicine in
Maryland, four other states, but I don't actively treat patients. Q. Since 1980 or '81, you only testify in Court,
and write books and give speeches, correct? A. Well, I do a lot of other things. I do
toxicological studies.
I do investigations of exposures
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situations.
I do reports; not litigation related but tox
studies for companies, for example, who are putting out a new product and want toxicological evaluations of that product or who have an existing product and they are concerned about some reports of toxicity; so, I do many things, but litigation is certainly among them. Q. A. do. Q. What percentage of the times you have appeared It's a major part of your practice, isn't it? Well, significant. It's probably half of what I
in Court have you spent testifying for the Defense? A. Q. I'm sorry; let me hear that? For all the times you testified in Court, what
percentage of these were testifying for the Defense? MR. GOECKE: Your Honor, I object to this. This
doesn't go to voir dire; more Cross-Examination questioning. THE COURT: THE WITNESS: I'll allow it. You mean, for all the times?
Since I have ever been involved in litigation issues? BY MR. SZYMKOWICZ: Q. A. Exactly? That's hard to say. In recent years, it's
mostly been Defense, but in some of my early years in the 1980s going -- 1980s, I was involved very extensively in
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Plaintiff malpractice matters.
In fact, that's how I
began my activities in litigation, mostly pharmaceutical, pharmacological issues and emergency medicine issues. Q. In the last five years, how many times have you
found that the cause of someone's illness; cancer, have you ever proven what the cause was or determined what the cause was? A. Q. Very often I determine what the cause is. Aren't most of your testimonies where you prove
that the other side has not proven what the cause is? A. Not necessarily. There are many times when we
identify -- I identify alternate and sometimes very clear and compelling alternate explanations for a person's problem; I mean, that may not be what the person or his or her attorney, if it's in litigation, believes to be the case, but it's apparent on an evaluation and investigation, reviewing records, for example. Q. A. Q. Are you an expert in secondhand smoke? I'm an expert in toxicology of secondhand smoke. Why do you believe that you're an expert in the
toxicology of secondhand smoke? A. Because I'm a toxicologist. I know the
components of secondhand smoke. it's toxicology. Q.
You know, those are --
Have you ever published any peer-reviewed
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articles on secondhand smoke? A. smoke. No, not specifically using the term secondhand I have published articles that deal with some of
the agents that are involved in secondhand smoke. Q. But specifically secondhand smoke, have you ever
published any paper of any kind, peer-reviewed or not? A. Q. No, not using the term secondhand smoke. Have you attended any lectures or classes on
secondhand smoke? A. Q. I don't know. Not that I recall.
Outside of the case in which we are all involved
in; actually, I was involved in and you were involved in last month, have you ever given testimony on the field of secondhand smoke? A. I have testified in a couple of depositions, I
think two depositions in secondhand smoke matters besides these. Q. Has your work ever been cited in any studies on
secondhand smoke? A. Q. A. Q. Schuman? A. No, Mr. Szymkowicz, I did not. Not that I know of. Did you ever examine David Schuman? No. Did you ever take an oral history of David
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Q.
Have you ever gone to the Popovic house and made
an examination of the premises involved in this case? A. Q. No, I have not. Have you taken any measurements of the presence
or lack thereof of secondhand smoke in the 11 Court that we are talking about here? A. No, except to to say that I reviewed the file I
completely, so I know what all the measurements are. know what the distances are.
I have seen that, and, of
course, I sat in on the trial last week. Q. I believe that when we took your deposition back
in May, you hadn't read the Surgeon General's, at least the 2010 Report, is that true? A. Q. I think that's correct. And then when you testified in the other case a
month ago, I believe you still hadn't read the 2010 report? A. Q. Right. Okay. MR. SZYMKOWICZ: Your Honor, I believe that I have now. I read 2010 and 2006.
Dr. Gots is not an expert in secondhand smoke, but moreover, and I think we probably need to have Mr. Goecke because I wasn't -- he spoke too fast for me to write down what he's trying to certify Dr. Gots as an expert in, but I believe that the record, from his
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deposition and its lack of any kind of report indicate that these -- certainly, most of these issues are issues that we are learning about for the first time; so, we are going to ask if the Court certifies Dr. Gots, at all, which we don't believe that he's an expert, that his testimony should be limited only to this six or seven of these pages that he testifies about. THE COURT: Well, covered that issue. Let's go
one by one, the offer. MR. GOECKE: The first one, Your Honor, is that
he be made -- excuse me -- be admitted as an expert in toxicology, which includes secondhand smoke and the carcinogens found in secondhand smoke, and how those components may affect a person or populace. THE COURT: toxicology. I'll admit him as an expert in
He's Board certified. The second one, Your Honor, that
MR. GOECKE:
he's an expert in symptom reporting and the relationship between hazard perception and symptoms. MR. SZYMKOWICZ: That's something I'll give I don't think he
Mr. Goecke the deposition transcript. discussed it here. MR. GOECKE:
This is going to be in rebutting
Dr. Munzer's testimony, Your Honor. MR. SZYMKOWICZ: I think he had Dr. Munzer's
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report already.
If we had known that he was going to go
into this, we might have done a little bit more research. THE COURT: Whether or not I admit him as an
expert, whether or not I permit certain testimony are two different things. I think he has demonstrated a
specialized knowledge of symptom reporting sufficient to qualify him as an expert; so, I'll admit him as an expert. Again, because of discovery issues, there may be things that aren't admissible. MR. GOECKE: We'll cross that bridge.
Your Honor, I would also like to
move Dr. Gots in as a medical doctor. THE COURT: all you need. MR. GOECKE: And, finally, Your Honor, that He's licensed in Maryland. That's
Dr. Gots is an expert in chemical carcinogenesis and chemical irritants. THE COURT: And, again, he's demonstrated a
sufficient level of expertise above and beyond what most of us in the room would have; permit his admission as an expert in that area as well. MR. GOECKE: All right. Your Honor, in
anticipation of Mr. Szymkowicz' objections, I do apologize to him and to the Court; I meant to bring extra copies of the power point presentation we are about to go through; so, he could have advance notice of that. I don't have an
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extra hard copy, and so I guess I'll go slowly; if he has objections to slides as they come up -MR. SZYMKOWICZ: I object to any slides because,
I mean, again, they had a duty to turn over. MR. GOECKE: Honor. MR. SZYMKOWICZ: It doesn't matter. We These are just demonstratives, Your
specifically asked anything provided to or given from the expert. I think these would be covered by that. THE COURT: Give me a heads up what we are
talking about with the slide presentation. MR. GOECKE: We have got about twenty slides
here that just talk generally about the dose-cause relationship between substances and injury. We talk a
little bit about some of the methodology that Mr. Repace employed in his study, and Dr. Gots' criticism of some of the methodology. to quantify that. We talk about what micrograms are; how We sort of put the measurements that We talk about
Mr. Repace took and put them in context.
how epidemiological studies are used to assess risk for populaces; how it's not really appropriate to use that for evaluating an individual's risk. THE COURT: presentation? MR. GOECKE: We just put it together in the last How long have you had this slide
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week, Your Honor. THE COURT: over? MR. GOECKE: There was none, Your Honor. I was Was there any attempt to send it
refining it over the weekend. THE COURT: Well, start with the first slide. Direct Examination (Continued) BY MR. GOECKE: Q. So, Dr. Gots, is the power point presentation I
was just referring to; this is the first slide called, The Dose Makes the Poison. this slide? MR. SZYMKOWICZ: Your Honor, I object. This Can you tell us a little bit about
wasn't discussed in the deposition. slide before. THE COURT: asked -MR. SZYMKOWICZ: specific question. case?
We haven't seen this
It wasn't discussed.
If it wasn't
Your Honor, I asked a very
I said, What are your findings in this He went through
That's a pretty broad question.
Four Eight. THE COURT: THE WITNESS: What is on the screen right now? Saccharin, Aspirin and Alcohol is
not smoke; so, this is a little bit of background in toxicology. Doesn't go to secondhand smoke or doses with
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regard to secondhand smoke; so, at least I think the concept here is, I'm going to posit an assumption neither Mr. Repace nor Dr. Munzer would disagree with; for example: One diet soda isn't going to kill you; too many
diet sodas over a period of time is going to have an effect. MR. SZYMKOWICZ: Two hundred diet sodas per day
may kill you for other reasons, but you know, two thousand diet sodas over your life may cause you cancer. I don't know what this means. never discussed. We have no idea. This slide will be all right. Go Honest, this was
THE COURT: ahead.
DIRECT EXAMINATION (Continued) BY MR. GOECKE: Q. A. Dr. Gots, please tell us about this slide? Okay. This simply illustrates something that That is that there's a
most of us are familiar with.
relationship between the amount that is taken into the body; I think actually Mr. Repace talked about that too. He talked about concentration over time, which ultimately determines dose, and dose is a critical determinant of whether something becomes a toxicant or not. saccharin. Forget this
That's not particularly a good example.
Aspirin, we are familiar with two tablets takes care of
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headaches; whole bottle kills children, and alcohol, you know one drink does nothing, thimble full, or one drink may actually make you have some effect, but a thimble full does absolutely nothing, and a fifth of whisky can put you out, and young kids at college, can kill them, which it often does. There's another aspect of dose toxicity which is not on that picture; I think I should mention it now. This is not -- we are not talking about carcinogens here. These are direct organ toxicity issues, but the same is true for carcinogens, and it's quite likely that at the very lowest levels of carcinogens, there is no carcinogenicity, no cancer occurrence, because we have all kind of repair mechanisms to help prevent that, and actually to exemplify, in a glass of water, tap water, I assume this is tap water, they are looking at the ATSDR from the CDC essentially on polycyclic aromatic hydrocarbons, PAHs, and tap water contains an average, I think it's between about two four and twenty-four nanograms per liter of PAHs; so, there is actually more PAHs in this tap water than was measured in Mr. Schuman's house. BY MR. GOECKE: Q. Just to clarify, Dr. Gots? MR. SZYMKOWICZ: Your Honor, that was certainly
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something not covered in his deposition. THE COURT: I'll sustain that.
BY MR. GOECKE: Q. A. Please go ahead, Dr. Gots. Probably not going to cause cancer because the
levels are too low, but you can't absolutely prove in tap water, with its PAHs, hundred carcinogens at very low levels, are not harmful. Q. Okay. Impossible to prove that.
Next slide you talked a bit about dose
and some other examples. A. Yeah, this is -- actually interested with oxygen
and water as direct toxicants because O oxygen, O, again, twenty percent of air, the oxygen obviously vital for survival, but fifty to eighty percent oxygen over several days in ICU, for example, actually causes permanent lung damage; can cause fibrosis of the lung or oxygen toxicity, and similarly, drinking one glass of water, normally someone who guzzles down two gallons of water at one time can get water intoxication because you can't get rid of it fast enough, and the brain swells and people have died from water intoxication; so, that can be toxic as well. Q. point. A. Yeah, this is a headline about a woman who died I believe that's your next slide focuses on that
of water intoxication.
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MR. SZYMKOWICZ:
Your Honor, I object.
This is
hearsay, and furthermore, was not presented to us before. THE COURT: He's an expert. I'll sustain it.
Go to the next slide. THE WITNESS: Simply trying to illustrate the
difference between a toxic level and nontoxic level. That's all. This begins to discuss some of the units that we have been talking about -- have been talking about in this trial. One of the units is a microgram. Nicotine was
measured in units of micrograms per cubic meter; point 05 in the Schuman home, the micrograms per cubic meter. Here -- what is a microgram -- is a penny weighs two-and-a-half grams. There are a million micrograms in a
gram, so a penny weighs two-and-a-half million micrograms. Just gives some contextual information about what the size of a microgram is. That doesn't necessarily mean that all
micrograms are good for you; I mean, they can be, but again, in context of size, so it's two-and-a-half million micrograms in a penny. Q. A. I think your next slide furthers that point? Similarly, for a drop of water, this obviously
varies depending on the size of the drop of water, .06 grams is a reasonable average for a drop of water, which is sixty thousand micrograms; so, sixty thousand
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micrograms in one drop of water, and again, remember, we measured -- what was measured here was .05 micrograms; so, it's five hundredths of a microgram. Q. A. Let's go ahead and put this in context. So this is what was measured, .05 micrograms per
cubic meter of air -- cubic meter is about three feet by three feet by three feet -- in a month, which is one fifty thousandth of the weight of a penny in a cubic meter of air or one millionth -- I'm sorry -- one fifty millionth of the weight of a penny or one point two millionth of the weight of a drop of water in a cubic meter of air; so, again, very, very small amount of nicotine was actually measured in Mr. Schuman's home. We'll put that into some further context. The
cigarette emits approximately fourteen thousand -- one cigarette emits in the sidestream smoke -MR. SZYMKOWICZ: Your Honor, I object to this
testimony because he didn't indicate it in his deposition, that he was going to testify about cigarette emissions and -THE COURT: MR. GOECKE: Sustained. Your Honor, Mr. Repace testified
this very same fact, that 1400 micrograms come out of a cigarette. This goes exactly to what this case is about.
The fact that Mr. Szymkowicz didn't ask specific questions
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like that. THE COURT: THE WITNESS: It's math essentially. So 1400 micrograms of nicotine -I believe Your Honor sustained
MR. SZYMKOWICZ: the objection. THE COURT: Yes.
It's math. Do math.
You can argue
mathematics all you want. THE WITNESS: THE COURT: THE WITNESS: THE COURT:
From a cigarette -I'll sustain it. I'm sorry; can I talk? The point is, Mr. Repace did say
1400 micrograms of nicotine from a cigarette, and that he can certainly, for example, put this slide up in closing arguments, because it's merely doing the math, but essentially. MR. GOECKE: Again, Your Honor, this is just to
help the Court put this in context; understand what it is we are talking about. THE COURT: harmless. THE WITNESS: Can we go back to the one before? And I understand. Go ahead. It's
So .05 micrograms of nicotine is the amount of nicotine that comes out of point zero zero zero zero three five cigarettes. Point zero zero zero zero three five,
that kind of puts the amount of nicotine into some kind of
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conceptual framework, I think. BY MR. GOECKE: Q. Do you recall the time period that Mr. Repace
collected .05 grams of nicotine? A. Q. A month. So it took a month for him to get .05
micrograms? A. Q. A. Q. Yes. 1400 micrograms in one cigarette? That's right. How long would it take for all the nicotine from
one cigarette to go into Mr. Schuman's unit? A. You mean, one month, you got this amount; so,
ten hundred thousand -- I don't know -- ten thousand months or something like that; more than that actually. Q. All right. Why -Your Honor, I don't know. I Now this was discussed in Dr. Gots'
deposition.
MR. SZYMKOWICZ: would like -THE COURT:
Take a moment. Mr. Goecke, show me where it
MR. SZYMKOWICZ: was discussed. MR. GOECKE:
It was discussed. Prove it.
MR. SZYMKOWICZ: MR. GOECKE:
Disprove it.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one. risk. Q.
THE COURT:
There are discovery issues, so take
a moment and go through that deposition. BY MR. GOECKE: On page twenty-five of Dr. Gots' deposition
transcript, Mr. Szymkowicz asked him, "What are your findings in this case so far?" And Dr. Gots responds, "Well, I think the most critical one, and this is, really, the bottom line finding regardless of any of the others, is that the use of quantitative risk assessment, which Mr. Repace did in this matter, to relate to a specific person and to identify that as a personal risk is improper; I mean, it's methodologically wrong. You can't do it."
Goes on to talk about personal versus private
THE COURT: MR. GOECKE: through it.
Number two. That's right. I'm just looking
MR. SZYMKOWICZ:
I'm more concerned about number
I don't think he testified about blanks in the
deposition. MR. FISHER: this discovery issue? Your Honor, we identified Dr. Gots as an expert. We disclosed him. We identified, in our disclosure, that Your Honor, if I may be heard on
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he was going to testify to rebut the testimony of experts offered by the Plaintiffs in this case. Mr. Szymkowicz
chose, for purposes of cost, to limit his deposition to an hour; limit his question; did not go through every specific example. rebut. That's specificly what he's going to
He had that opportunity. Dr. Gots sat in this Courtroom during the entire
proceeding, listened to the expert of Plaintiff testify, for the specific purpose of rebutting testimony, Your Honor, as an expert witness. You're even -- as a rebuttal
expert witness, he has the ability to offer testimony with respect to those issues. respect to Dr. Gots. THE COURT: deposition? opinion? MR. FISHER: No, Your Honor. Mr. Szymkowicz did He gave that opinion in the We weren't hiding the ball with
Was the question asked about the basis of the
not go into great detail. because he chose not -THE COURT: the basis? MR. SZYMKOWICZ: opinion. find it. MR. FISHER:
He had that opportunity;
He gave the opinion?
Did you ask
I don't think he gave the Mr. Goecke can't even
That's the whole problem.
Your Honor, Mr. Szymkowicz, in
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doing this deposition, did not ask questions as to the basis. He had the opportunity. MR. SZYMKOWICZ: findings? We asked, What are the
He never gave findings -- aside from a few I think he did --
findings, he never gave anything.
number two, I think that he did discuss that in general, but number one, I don't think he got into at all, and moreover, I think we finished our deposition a few minutes early because we hit everything we needed to; yet, we originally suggested an hour, but I think I hit everything I needed to hit prior to that. THE COURT: I think we just stopped.
Once he gave that opinion, the one
he just read at page two was the question asked, And on what basis do you find that he used improper risk assessment? MR. SZYMKOWICZ: I don't believe that we did on
that part, but certainly, on the first one, he never gave any testimony, to my recollection, about nicotine level to particulate level. I'm asking Mr. Goecke. I believe he was there
or, at least, he has had the transcript to look through it. I don't think it's in there. MR. FISHER: asked the question. THE COURT: If you don't ask the question, you Your Honor, Mr. Szymkowicz never
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won't get the answer. MR. SZYMKOWICZ: findings? We asked him, What are your
He would go bing, bing, bing, bing, bing, and
that wasn't one of his findings. THE COURT: number one. MR. FISHER: Exactly. Number one forms the Number two is the conclusion of
basis for the conclusion.
Number two, and if he gives
that conclusion; you don't say, On what do you base that opinion? MR. SZYMKOWICZ: Your Honor, I think that the It doesn't -- there's
Court can review the transcript.
not that many pages there, and determine for itself how much Dr. Gots should be allowed to testify. I mean, I asked him: there anything else? And he said -- he kept going. And I said, Is there anything else? THE COURT: Now, if you ask, what is the basis What are your bases? Is
you find that, that would answer -- he didn't answer. MR. FISHER: Then he's subject to cross Again, he never asked those Again, I don't
examination to that issue.
questions, What was the basis, Your Honor. understand that.
I think that issue is clear from his
deposition, but I don't understand that, Your Honor,
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again, Mr. Repace testified to these issues in his testimony in this courtroom, and he has the ability to rebut that testimony. MR. SZYMKOWICZ: Moreover, we asked in
interrogatory -- this is a standard interrogatory we use -- "What are the statements of your opinions and what is the basis of reasons thereof?" anything before the deposition. the deposition, and you're right. hour for cost purposes. THE COURT: give the basis? MR. SZYMKOWICZ: THE COURT: Not at all. If I may approach? The answers to interrogatories don't They never gave us We asked some stuff at We limited it to an
If you say that's in there. And they incorporate the
MR. SZYMKOWICZ:
testimony from the deposition, but they never answered the questions. I asked very specific questions. THE COURT: basis of the opinion? the interrogatory. Interrogatories says, What's the And that wasn't given in answer to
I sustain the objection. Thank you, Your Honor.
MR. SZYMKOWICZ: MR. FISHER: of proof to take issue.
Your Honor, I would ask for subject I don't believe that's correct.
We can incorporate -- I have to pull the exact interrogatory. We can incorporate our expert opinions.
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THE COURT:
Sure.
You can incorporate the
opinion, but the question asked, "What is the basis?" and if the question is, "What's the basis?" and that fact isn't answered, you are not going to answer it for the first time today. Asked previously, and answer for the
basis wasn't given. MR. GOECKE: from the transcript. So after Mr. -- After Dr. Gots responded -Mr. Szymkowicz: "Why is that?" It was provided. If I may continue
And Dr. Gots responded, "Because it's a methodology which is designed for regulatory purposes." Now we are talking about public versus private
"That has numerous assumptions built in that many, many uncertainties -- for example, the risk at extremely low levels, which is what we are talking about here; I mean extremely low levels of tobacco smoke where no one knows if there's any risk at all, but it assumes there is a linear relationship between exposure and risk, and that's an assumption that is a public policy assumption. It's what I wrote about in this book, Toxic
Risks, and it's what I write about in the chapter I call Personal versus Public Risk, but it's not a real number that has anything to do with the real person."
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tell.
Then he goes on, "Do you have any other findings?" very open ended. "Well that's -- I mean, that's the global finding; then within that, there are a lot of calculations that I want to check and that I'm unclear about." That's what we are going to talk about with the other areas. "I mean, even with the methodology that was used by Mr. Repace, I have some issues and concerns and some questions. For example, the passive monitor that was used
to measure .05 micrograms or ultimately to calculate, you know, by micrograms per cubic meter of nicotine, I don't think that has ever been used to look at levels that low." No longer -- again, that goes to the blanks. The literature always uses blanks, and Mr. Repace did not use blanks. He didn't use the word 'blank.' I concede
that, but the concept was there. "It certainly is not published as far as I can And" -MR. SZYMKOWICZ: He's talking about the limited
detection, Your Honor; that has nothing about, you know, facts to of four times or hundred times. MR. GOECKE: getting there. "It certainly is not published as far as I can We are getting there. We are
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tell.
And Hammond, in their original paper when they
described in 1987 the use of this passive monitor and the calibration of it that they developed, they developed that using an environmental chamber where they had known concentrations and they had other measures that could correlate the passive monitoring with active monitoring, and they showed it was accurate under certain circumstances. But they, in that paper, discuss the
uncertainties and the need for further research, and the question about whether, for example" -- excuse me -- "it would be applicable under the sorts of circumstances that we are seeing in this case. Now, that include those
circumstances; include putting it in the corner of a kitchen with uncertain air exchanges; having very, very low nicotine measurements, if those were measured at all, they would be below the level of detection, and leaving it there for a month." BY MR. GOECKE: Q. So, again, in your slide here, you know about
taking the samples from where the SHS smoke or the secondhand smoke was most intense, and then using it to calculate an average? MR. SZYMKOWICZ: Your Honor, I don't believe
that it does, and furthermore, we asked, at the very beginning of the deposition, "Did you ever prepare a
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written report of your findings in this case?" "No, I have not done that," as on page twenty-two. "How come?" "I wasn't asked to. And there's another thing.
I'm not quite ready to do that as well; I mean, there's a lot of things that I want to investigate further in this, but I'm certainly ready for some preliminary observations." Question: Answer: "How come you're not ready?" "I didn't have time; I mean, I have
other things to do, and this was a very sort of labor-intensive matter." So it shows that he left a lot to be desired at the deposition, and he never followed up with it. That
would have been done for the answer to our interrogatory. MR. FISHER: Your Honor, he did answer the
questions, although he started his deposition like that, I did hear, from what Mr. Goecke read into the record a few moments ago, Dr. Gots did get into all those details; furthermore, going back to interrogatory number three, I must object to the innuendo we tried to hide discovery in this case. THE COURT: MR. FISHER: Not suggesting that. Answer to interrogatory number
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three that Mr. Szymkowicz is complaining about reads, the answer: Greenbelt incorporates and directs -- which is Greenbelt
served on Plaintiff on November 22nd, 2010.
further incorporates the testimony of Dr. Ronald Gots from his deposition taken on May 17th, 2011. In addition to
the topics addressed in Greenbelt's identification of experts and in Dr. Gots' deposition, Dr. Gots is expected to rebut the testimony of James Repace and/or any medical testimony provided on Plaintiff's behalf. Your Honor, at that time, Mr. Repace had not completed his four reports, okay. MR. SZYMKOWICZ: MR. FISHER: Those came much later.
No, he completed three of them.
Not to mention the fact, Your
Honor, that Dr. Munzer wasn't even an expert until several weeks before this trial was set to begin, and so if Plaintiff wanted to reexamine Dr. Gots, he certainly had the ability to ask and request on specific questions about what he was going to rebut about Mr. Repace and Dr. Munzer, which he never did; further, Your Honor, I would again indicate irrespective of all those opportunities, Dr. Gots, as a rebuttal witness, has the ability to listen to trial, to hear what Mr. Schuman says and the two experts, and he's prepared to give rebuttal testimony. He can do that. THE COURT: He can do that if it's something new
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from Mr. Repace, no problem, but if Mr. Repace said X on day one, and Dr. Gots was asked about what Mr. Repace said on day two, and he doesn't answer or doesn't respond to that question, now is not the first time to do it. MR. FISHER: not what happened here. I agree with Your Honor. That's
That's not what is going on.
Mr. Repace's -- I'm sorry, Your Honor. THE COURT: So if he's rebutting what was said If
in the Court, essentially, for the first time, fine.
he's rebutting what was said previous to his deposition, then he's -MR. SZYMKOWICZ: Your Honor, that's correct.
The only thing that Mr. Repace added, he had the three reports, 2009, August 2010, December 2010. the record. That was all the inside stuff. Those were in
Now, the only thing that Mr. Repace did after Mr. Gots' testimony, or his deposition, which we concede because it's the truth, is his outdoor study, which happened, I believe, in late June or early July. for the first time. Everything else he knew. That's
He also had
Mr. Repace's testimony from the original hearing because that's in the record as well. MR. FISHER: But, again, Your Honor, Dr. Gots
testified on those issues in deposition, and as Mr. Goecke just read in on numerous aspects of it, he's not changing
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anything.
Dr. Gots testified as to those things at his
deposition, and Mr. Szymkowicz, if he failed to ask additional questions as to the basis, you know, for his findings, that's his problem now, to be quite honest. MR. SZYMKOWICZ: But it's their problem. They
didn't prepare their witness.
Dr. Gots was probably the
least prepared expert I have ever had in his deposition. It's proved by his statements. THE COURT: We are going to take a break. You
get together during the break.
I'm going to do a couple
of child support things; then take a look carefully at the deposition; take a look carefully at the interrogatories; see if there's any common ground, at all, within that, within the outline that I have given. MR. SZYMKOWICZ: Certainly, Your Honor. I
must -- rather have it resolved than about doing this in Court, Your Honor. (Recess). THE DEPUTY CLERK: Greenbelt Homes, Inc. THE COURT: All right. I think we have made a lot of CAL10-06047, Schuman versus
MR. SZYMKOWICZ:
progress, and we are ready to go. MR. GOECKE: Okay. Thanks, Your Honor.
BY MR. GOECKE:
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Q.
Dr. Gots, before we continue with your slide
presentation, I just want to go back to clarify a few points. Is secondhand smoke dangerous? A. Sure, it can be. Depends on the amount and
depends on the amount of exposure. Q. So you are not contending there's no risk from
exposure to secondhand smoke? A. Q. No, absolutely not. Are you contending that Mr. Schuman did not
experience the symptoms? A. No, I expect if he said he had symptoms, then he Now, I think some of his causal He said he was
had symptoms.
attributions may or may not be accurate. symptomatic. Q. smokers? A. Q. No, sir. Okay.
He may have been symptomatic.
You're not a policiest (phonetic) for smoking or
Now returning back to our slide.
Can you
just walk us through the points here that we have got on the slide; tell us what these are exactly? A. Yeah, the -- well, just say point one is and
point two is and subpart -MR. SZYMKOWICZ: for the blank issue. Your Honor, we are fine except
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. blank. mean --
THE COURT:
When you say, "blank," do you
MR. SZYMKOWICZ:
Your Honor, that's the point.
I don't think the Court, as the trier of fact, should know what a blank is. That's not an issue. Goes to the limit of the detection,
MR. GOECKE:
which was discussed, limit of detection for passive nicotine monitor. MR. SZYMKOWICZ: That goes to another issue. He might be
He's not an expert in the detection.
interested, and an expert in the results, but the actual how to use the monitor to produce the data, he's not an expert in; so, therefore, I believe that the Court, as the trier of fact, should not even get into a discussion of blanks. MR. GOECKE: Also rebuttal, Your Honor, because
Mr. Repace testified for the first time about what the new limit of detection is. THE COURT: He talked about limits of detection
Is the first time it came up today? MR. GOECKE: We don't need to discuss that.
Just start measuring nicotine. BY MR. GOECKE: Don't discuss the blanks. Okay. So Mr. Repace comes out with a number
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using the nicotine number; he then calculates a particulate number. And the reason he calculates a
particulate number is because that's what you have to use in order to do a regulatory risk assessment. Nicotine,
there is no risk assessment for nicotine, but there is for particulates. So the first thing he does is a series of
things, and forget about all the series, but importantly, in his activity to calculate a particulate number, he comes up with the highest particulate number he could possibly come up with given the nicotine level of .05 micrograms per cubic meter. Q. A. How does he do that? He does that through a certain kind of
exaggeration, for one thing, measuring where the odor is most intense and ultimately using that as a continual throughout the condo exposure when he calculates risk; so, he's using the highest number he can get and calculating a general risk throughout the apartment. He then multiplies
by -- first of all, then he increases that by four fold by really calculating a maximum level over the smoking period as opposed to the average level over a month's period. This is what the .05 was, and he does this by saying he only smoked a certain number of hours, and we are going to therefore calculate the amount of nicotine during that particular time, but he then uses that number to calculate
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it as a generalized exposure. Q. Just to clarify, Dr. Gots, the samples were
taken 24 hours a day for over 35 days, is that correct? A. Q. Yes, that's right. And then when Mr. Repace calculates the amount
of particulates, he discounts about 18 hours a day? A. Q. That's correct. Because he's assuming that the smoking only
occurred in a five to six hour window each day? A. Right, and frankly because he wants to get a
higher number. And then he spent a lot of time talking about this is why he multiplied by a hundred in order to convert nicotine to particulates. In his earlier report, he
multiplied by ten because that's the most consistently reported and known ratio of particulates to nicotine, but he discussed the proposition when nicotine and particulates go between units and through walls, there is a greater loss of nicotine than there is particulates, and therefore, this number should be a hundred. Now, he used a couple of papers to do that, and I reviewed those papers, and frankly, I don't see that they say what he says they say; that's -- I don't agree that, today, one can use a hundred fold for a multiplication factor. That may be true with further
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studies, which, frankly, I think Mr. Repace is working on; has testified he is working on these studies. We don't
know this, and a hundred fold increases the level of particulates by ten more, ten fold greater than we know can really be done. That leads to -- this all leads to a
calculation of particulate levels which is about -- I think he came out with about twenty micrograms per cubic meter, something of that sort, twenty-three, which he then plugs into a regulatory risk assessment model and comes up with the final conclusion which has to do with the risk to Mr. Schuman. This absolutely can't be done. That's what I
wrote a book about frankly, and that is the converse or the use of regulatory toxicology for calculations of a personal individual risk. The risk assessment models, regulatory toxicology, are intended to provide some estimate, albeit one which is not a real world estimate, but rather a policy-generated estimate of risk for regulatory purposes. It does not have actual applicability to known risks or more importantly, to known risks in an individual, and it can't be used to do that. methodology. Q. Thank you. Your next slide here talks about Can you draw out the context It's an improper use of that
public risks just generally.
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of epidemiology and how statistics are used to calculate risk for population? A. Q. A. Yeah. Sure. If we look at disease incidence, whatever that Can I get up and use that flip chart?
disease may be; could be lung cancer; could be heart disease, whatever -MR. GOECKE: THE COURT: THE WITNESS: Can you see, Your Honor? Yes. And we want to look at the
relationship between that and the exposure, okay, I'm going to call this dose, dose is exposure over time, and that's a dose. When we are dealing with something like
cigarette smoking and lung cancer, there are lots and lots of numbers here, and what I mean by "here," is let's say people who smoke a pack a day, individual real smokers who smoke a pack a day; so, they may be here; so, we'll call them one-pack-per-day smokers. This is real epidemiology. attached to that kind of risk. We have numbers
You still can't convert
risk in a specific person because this is a population-based risk, which has nothing to do with one person; however, it is a valid determinant of populace-based risk with that kind of smoking. When you get down to levels, and there have been
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studies half-pack per day and so forth; when you get down to levels, and here there are some studies that they may -- some increased risk, but as you get lower, let's say, now we are dealing with a spouse. Well, not even
there; that would be even higher, a spouse, and this is a secondhand-smoke issue. Here the studies are really quite
variable because they are just not as good for two reasons. Number one, the risk is substantially lower; so,
it's harder to measure; takes a lot of people in order to get enough data to identify the risk; I mean, if the risk is one in a thousand, for example, need a lot of people to do a study to actually show that, so -- and, secondly, the measurement of the dose is more difficult with the direct smokers. We have a better idea what they are actually With even a spouseal smoker, it's a little
exposed to.
less clear; so, we have studies here that are kind of scattered; some show -- and some are down here. an increase in disease. so (indicating). When you get down to this level, let's say Mr. Schuman is down here; almost no exposure; just absolutely trivial exposure from the secondhand smoke. There's no data. You can't do the studies that showed the They show
They are all over the place, like
kind of risks for that kind of exposure that's being claimed here.
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Now, what the regulatory agencies do and what Mr. Repace has used is that they take -- they make a determination for public policy purposes that as the Surgeon General says, there's no safe level. policy statement. That's a
What that means is in this region where
we really can't do studies, and we can't calculate actual risks and/or we can't quantitate dose very effectively, we are going to assume there's a linear relationship. down here. We are
We'll assume there's a risk level down here
even though we can't measure it, and that is a perfectly valid thing to do as a matter of public policy because we don't know if there's a risk here, and so we'll do what is called being safe rather than sorry. And this is done in all areas of regulatory policy; for example: drinking water? How much Benzene is allowed in Does five parts
Five parts per billion.
per billion, is that known to actually cause disease or cancer? People know there are no studies of five parts of
Benzene in drinking water, but we are going to take the studies where there are studies, and we are going to draw a straight line saying that risk never goes away until there is no exposure. That's the regulatory paradigm, It may well be for
which is fine for policy purposes. toxicological purposes.
I would argue; let's say for lung cancer,
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there's probably a -- lung cancer too, probably at this level of exposure, there's no risk. In other words, until
you reach a certain dose, you don't have an increased disease incidence. We don't know that for sure, but I think most toxicologists believe that there's, in fact, probably a threshold. So what Mr. Repace has done is he has taken this linear relationship that is used for public policy purposes, and he says Mr. Schuman is there. Mr. Schuman is not there; I mean, this is a made-up area where there is no data, and for policy purposes, it's assumed that there is only zero risks when there's zero exposure. Q. Thank you, Doctor. You just had the example of Are there other
the regulation of drinking water.
examples where government agencies have regulated substances and different things using this model? A. Civilian food, you know there are many There are aflatoxins, which is a
carcinogens in food.
mold toxin in peanuts, peanut butter, and there's a number that's permissible to be in our food based on regulatory risk assessment, and we have that in our peanut butter, but we don't know that it actually poses a risk at that level. It's assumed that it might for public policy
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purposes. Q. Which agencies, which government agencies
utilize this methodology or this assumption? A. Certainly EPA does; The Department of
Agriculture, Occupational Safety and Health Administration, among others, but those, and then the specific acts under which those are regulated and Clean Air Act, Water Act, and then so forth. And as a matter of policy, you know, William Ruckelshaus, who was the first director of EPA, called this what I have just shown you here a shotgun wedding between science and law. In other words, policy decision
is that we are going to assume no threshold, but that's an assumption; not a scientific determination. It's a public
policy determination, and you simply -- you can certainly apply that for regulatory purposes because that's what regulatory agencies do, and they are entitled to do it, but you can't convert it to a real risk in a real person because it isn't. Q. A. regulated. That's not what it is
Have any agencies regulated secondhand smoke? Regulated? I don't know about agencies
There is certainly secondhand smoke bans, but I don't
I don't know regulations of secondhand smoke. think so. Q.
Do you know if any agencies have considered
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banning secondhand smoke in public places, and referring mostly to federal agencies right now? A. Not to my knowledge. MR. SZYMKOWICZ: this. MR. GOECKE: Withdrawn, Your Honor. I object to the relevancy of
BY MR. GOECKE: Q. generally. So we have talked a bit about your fields Do you want to add anything more about the
personal health risk and public health risk and why that's important? A. Yeah. When we -- there are many, many times
when we have had; when I have had to do risk communication to community groups or individuals who have been very distressed about an exposure issue and believe, because of some regulatory paradigm, that they are at risk. For
example, one of the stories that people are well familiar with, I think, was the Benzene in Perrier water. maybe ten years -- someone found Benzene -MR. SZYMKOWICZ: Your Honor, I object. This This was
wasn't something that was covered. MR. GOECKE: THE COURT: Example to illustrate the point. I'll let him testify because I was
going to come up with an example myself, so may as well use this one.
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THE WITNESS:
Well, I mean, there were about
fifteen parts per billion, if I recall correctly, Benzene in Perrier water that was found. And the regulatory EPA,
for limit for Benzene in drinking water, is five parts per billion, so that's three times the level that is the regulated level. There was a great deal of distress over
that, and by the way, Perrier was taken off the shelves, and they recalled it and so forth, and responded effectively and quickly to people's concern, but people who drank fifteen parts per billion of Benzene in their Perrier water were almost, surely, at no real toxicological risk, even though the regulatory number is five, but it's -- the fact is that that five is not the bright line between hazardous and not hazardous; I mean, there's a continuum, and there's a great deal of uncertainty down at those very, very, low levels, so that almost surely fifteen parts per billion was not going to pose a risk for people, and yet it posed concern because it was a regulated number. And we see this. We see this all the time, and
I mean, I have been involved with power lines, for example, where people are concerned about leukemia risk for power lines because there were some reports talking about childhood leukemia and power lines. Most of the
studies now have been negative and pretty well debunk
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that, but there were a great deal of public concerns about people living near power lines; so, one often has to try to explain either the current literature and epidemiology vis-a-vis public perceptions and worries and/or public policies, such as the five parts per billion of Benzene versus fifteen parts per billion to people who are worried about things of this sort. Q. Now, applying those concepts to this particular
case, what do we know about a potential risk to Mr. Schuman? A. Well, I don't believe there's any risk to
Mr. Schuman; I mean -Q. A. Why not? I mean, I think the exposure level in secondhand
smoke from Mr. Popovic smoking a cigarette or two outside at night and given the kinds of readings that were given in his apartment of nicotine or of the PAHs reflects an extremely, extremely low amount of exposure; in my opinion as a toxicologist, too low, certainly too low to present cancer risk, but also too low to present an irritant risk. Q. Do you dispute that Mr. Schuman is experiencing
the symptoms he's complained of? A. I have no reason to disbelieve that he's
experiencing symptoms, and as I have mentioned before, people do develop symptoms and very real symptoms when
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they are worried and concerned about having that; they believe is affecting their health. MR. SZYMKOWICZ: Your Honor, the psychosomatic
effects weren't discussed in deposition. MR. GOECKE: Dr. Munzer's testimony on that This is rebuttal testimony. His
opened the door to that. THE COURT:
This is the first time?
deposition was prior to Dr. Munzer's? MR. SZYMKOWICZ: Well, the report was there.
It was a few days after Dr. Munzer's report; so, we asked him about the report, but he didn't talk about the psychosomatic issue. THE COURT: MR. FISHER: I'll sustain. Your Honor, the testimony from
Dr. Munzer on Friday went into issues with this concept of fright versus -- test fear versus symptoms. THE COURT: brought it up? MR. FISHER: Yes, Your Honor. Your Honor, I believe that was That the first time that Dr. Munzer
MR. SZYMKOWICZ:
in Cross-Examination, so, I mean. THE COURT: Cross-Examination. MR. FISHER: But, Your Honor, Dr. Munzer Well, that's true. That was
talked -- excuse me -- testified that his conclusions with
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respect to Mr. Schuman's symptoms and his causal connection between the secondhand smoke exposure to what Mr. Schuman described was something he did based upon what he heard and testified to in Court. I simply asked him
issues, whether it was possible, whether those -- whether the symptoms he described could have resulted from something other than secondhand smoke exposure, and then we talked about the concept of fear versus reaction; hypothetical about my daughter's fear of height. Dr. Munzer went into those issues, so I think it's certainly appropriate for Dr. Gots to testify to his, you know, his statements based upon Schuman's -- Mr. Schuman's testimony as well as that of Dr. Munzer. THE COURT: testimony. I'm trying to recall Dr. Munzer's
I think he said -- suggested there could be a He further didn't believe that
psychosomatic reaction.
that was the case with Mr. Schuman. MR. FISHER: THE COURT: MR. FISHER: THE COURT: Correct. Fair summary? Fair summary. Mr. Szymkowicz? That was a fair summary, Your
MR. SZYMKOWICZ: Honor. THE COURT: THE WITNESS:
Go ahead. Well, I don't like the term
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psychosomatic. anymore.
That's not a very commonly used word
That's kind of a passe' word; so, I wouldn't
have asked it the way Mr. Fisher asked, but there are clearly mind-body relationships and situations that produce concern, worry, fear; lead to symptomatology. One of the clear cut examples that we all know is stage fright. A person can be in front of an audience;
can be sweating, and palpitations irregularly and can pass out. Now, a person isn't passing out because he has been He's passing out because there's a relationship
poisoned.
between the inner life and the manifestation of that which are the somatic manifestations of concerns. And we see that all the time with chemical issues. I have probably reviewed a thousand matters in
the past twenty years or more, maybe more than a thousand matters in which people are clearly symptomatic from all sorts of exposures or perceived exposures; for example, perfume smelled across the room clearly at a level which does not produce physical toxicity. irritation. It doesn't produce
It's too low a level, but they smell it, and
they get sick, and people really do get sick; so, this is not an uncommon phenomenon, what one look at symptomatology, one hazard to consider in a situation of this sort, that that symptomatology has something to do with a perception of a hazard or a concern about harm.
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Q.
So you are saying the concern about a harm may
trigger a person's symptoms? A. Q. A. Absolutely. What might heighten a person's concern? Well, I mean there are many things. In the case
of whether -- there was a wonderful story -- wasn't a story; major saga that went on for five or six years in California involving the spraying of Med Flies with Malathion. There was a great deal of public process;
didn't want -- their neighbor had sprayed it, Malathion. Malathion is a fairly strong pesticide or reasonably safe to some others, but people on the helicopters went over to spray the Med Flies. There was a huge spike in calls to
doctors, and Emergency department visits and 911 calls by people with symptoms, and that was reported. There's a
series of papers that deal with this issue, but the interesting thing is that two years after the Med Flies spraying stopped, every time a helicopter went over, exactly the same phenomenon occurred: visits to Emergency
departments, visits to doctors, 911 calls complaining of a whole host of symptomatology; so, here was a populace of people who became symptomatic at hearing helicopters because they associated that sound with the spraying of dangerous substance, which worried them and caused them to be symptomatic.
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So hearing things can do it.
Smelling things
Reading about risks issues can do it; I mean,
the power line issue caused -- actually caused symptoms in this community that I visited about power lines because they read it was dangerous. So many things can trigger
the emotional substrate, if you will, for people to develop symptomatologies as a result of those kind of worries. Q. For example, in the Shreveport incident you
testified about earlier, moon suits -A. Exactly. Thanks for reminding me of that.
Folks saw -- there was a sign that said Danger PCBs, polychlorinated biphenyls, and the EPA came in with total protective gear, including respirators, and Firemen, Policemen weren't wearing those at the time, and so their natural belief was that they were at great risk because these people were protected, and they hadn't been, and then they actually had a doctor who reenforced that, who really didn't know much about PCBs, and who concurred with them that many of their symptoms were probably related to their exposures, which intensified the symptoms in those individuals. Q. A. Can smell trigger symptoms? Sure, absolutely; I mean, there are actually
some interesting studies that have been done many, many,
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but this is one example of a situation where actually this was medical students; where they blindfolded the students, and they had them smell either a ripe cheese or vomit, and they told them it was emesis. Vomited. They vomited. And
And if they told them it was cheese, they didn't.
they switched back and forth, so that sometimes they were smelling cheese, and they would vomit because they were told it was vomit and so forth. That's actually an
empirical study that has been published, and there are others like that where an odor connected to -- the same odor connected to different things, blindfolded individuals, leads to a different response. Q. What does that tell us between -- about the line
between smell and toxicity? A. There is no direct relationship between smell There are some
and toxicity except for certain agents.
that have close relationships, but many, there are not. For example, one of the most odoriferous things is butyl mercaptan, which is the odor of skunk. You can
smell that low parts per billion, but it's not very toxic; so you smelled it. It's horrible; really smells very
nasty, but it's not a very toxic substance; certainly not at those levels. On the other hand, carbon monoxide, I think mentioned here, doesn't have any odor here but can be toxic and kill
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people at levels where you can't smell it. Now, with cigarette smoke the agents are indiferous; in cigarette smoke particularly PYRIDINE that helps give cigarette smoke its smell, naturally a lot of agents which do that; can be smelled at ten parts per billion. That's the odor threshold for PYRIDINE. That's
a very, very low level; so, you can smell cigarette smoke at extremely low levels and know it's there, and yet, not have exposure to agents high enough to produce irritation and certainly not high enough to produce any other kind of risks. Q. So, hypothetically, if someone can smell
something that they know is bad for them might that trigger symptoms? A. Q. Absolutely. And if someone talks to a doctor or talks to an
expert and that expert warns them about exposure to a substance, might that cause concern and create a possibility that they can experience symptoms? A. It does it all the time. I have seen scores,
scores and scores of patients and reports and medical records in which physicians have contributed to -- there's also papers about that, iatrogenic, meaning doctor caused; the symptoms created by physicians who have made -inappropriately told someone they have been -- that they
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were being poisoned or have some adverse reactions to things. Q. A. Certainly. It's the power of suggestion?
Yeah, that's a simple of way of putting it, They are
power of suggestion or mind/body relationships. very real. Q. A. Q. A. Q. A. They are just not poison.
Like the stage fright example you gave before? Yes. Can smoke cause bronchitis? Can it cause what? Bronchitis? At a -- certainly, at a high enough level, it
can be an irritant, and it might -- it might intensify an existing bronchitis. I don't know of any studies,
frankly, that show that secondhand smoke can actually cause or refer, exacerbate bronchitis. It can asthma. We
know about that; for example, children, young children particularly, live in homes of smokers have a higher incidence of asthma. No question about that. Bronchitis,
I think the data is much weaker for bronchitis, and bronchitis is primarily an infectious disease, usually viral or bacterial, and I think the fact in this matter, Mr. Schuman treated with antibiotic for his bronchitis. Q. A. What does that tell us? The doctor thought it was bacterial. That's why
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he used antibiotics. Q. Did the doctor tell Mr. Schuman to vacate his
home or not expose himself to secondhand smoke anymore? A. Q. I didn't see that in the record. So you have heard of testimony here today right
in this Courtroom from Mr. Repace? A. Q. A. Q. Yes. And from Mr. Schuman? And from Mr. Schuman as well, yes. And based on what you have heard about their
discussions, what do you think the likelihood of Mr. Schuman's symptoms are? A. Q. A. symptoms. What do I think the likelihood? What do you think caused Mr. Schuman's symptoms? Well, to the extent -- depends on what his If he had some respiratory distress during the
time, he had bronchitis, then I would think bronchitis would have been an obvious cause of that or coughing. can't delineate each and every one of his symptoms and identify a specific reason for them. careful causal assessment to do that. One has to do a more I can tell you that I
I do not believe that there is sufficient irritants or any other factors associated with secondhand smoke in this situation to actually have been a physical cause of his symptoms; so, some of his symptoms may have had an
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emotional basis; some may have had an underlying other disease basis like bronchitis; others, I just don't know what his symptoms were from. Q. You can say that with a reasonable degree of
scientific and medical certainty? A. Q. Yes, sir. That's because the levels were too low that he
was exposed to? A. Q. Yes. Is it possible that his conversations with
Mr. Repace contributed to his symptoms? A. I would think that could be; I mean, Mr. Repace,
in this Courtroom, for example, delineated a series of symptoms in eighteen or so people whose situations he studied, which as he said, were similar to those of Mr. Schuman, and went through a whole list of symptoms which he has described to direct toxic effects of some sort of secondhand smoke. Well, I don't believe those be direct toxic effects if they had levels of exposure such as Mr. Schuman did, and so to the extent they had symptoms, I think that they were probably mind-body related symptoms, and, yes, Mr. Repace is insisting that those are -- toxicity could contribute to that. Q. Again, that's with a reasonable degree of
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scientific and medical certainty? A. Q. Yes, Mr. Goecke. Going back to your slide presentation, this is
one that you prepared called Threshold Concepts Are Not Part of Carcinogen Regulatory Science, and this builds upon what we have discussed already. this illustration to show us? MR. SZYMKOWICZ: was one of the subs. MR. GOECKE: threshold. MR. SZYMKOWICZ: Well, Your Honor, no safe I This is about the no safe Your Honor, I don't think this Can you just use
threshold, Court has taken judicial notice of that.
don't believe in a civil case the Court can hear evidence against that finding. MR. GOECKE: Your Honor, we don't dispute that
the Surgeon General has said there's no safe level or that you have taken judicial notice of that. trying to show what that means. MR. SZYMKOWICZ: But, again, I don't think it's We are just
a subject of expert testimony for the Court to take Judicial Notice of it. MR. GOECKE: The Court only took Judicial Notice
that the Surgeon General found there was no safe threshold.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. thing.
THE COURT:
Subject to a Motion to Strike, can Go ahead.
you tell us what this is? THE WITNESS:
What I'm showing her, Your Honor,
is the same thing that I drew on the flip chart, and that is that at the very lowest level of exposure, there is an assumption, as a matter of public policy, that there will be some people injured, and the analogy of that, people jumping off a building where you decrease the size of the building by ten fold, and you decrease the number of people that die by ten fold with each reduction in the size of the building. Q. If I may, Dr. Gots', analogous sort of like the
tall building? A. Yes, it's linear. No threshold relationship, so
even when people are jumping from something that is point O three inches high, nine people are going to die in this linear model. THE COURT: Just another way of doing the same
THE WITNESS: explained that. Yes.
Yes, I have already
MR. SZYMKOWICZ:
I object.
We have already
covered the epidemiological studies. BY MR. GOECKE: Okay. Coming back to the specific risk that
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Mr. Repace calculated for Mr. Schuman; talked a little bit about, even if we assume that his calculations and his measurements are accurate and clinically valid and appropriate, what did he find? A. Well, by his calculation, calculation -- well,
he calls a very severe risk, and you know, two in ten thousand in a populace study is a certainly a risk that is regulated customarily by the regulatory agencies, but he calculated a two in ten thousand risk understanding that that's not a true risk for Mr. Schuman for reasons that I have discussed, but let's assume that that were a true risk. The background risk of cancer is forty percent, so
it's point four; so, a two in ten thousand increase changes that risk from point four to point four zero zero two, and that just shows, you know, how that fits in with the context of background cancer. Q. So this -- if I read this correctly, you are
saying if men live long enough, eventually forty percent of them will contract cancer of some sort? A. A. That's correct, yes. Not forty percent of men contract; men at some
age or another? Q. And these conclusions, again, this is just based
on the initial report that Mr. Repace prepared, is that correct?
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A. Q.
Yes. Using the nicotine monitor trying to sample how
much nicotine was coming from the Popovics' unit into Mr. Schuman's unit? A. Q. That's correct. But we have not talked about, yet, the report
that Mr. Repace prepared just a couple of weeks before trial which measured the secondhand smoke coming from Mr. Popovic's patio into Mr. Schuman's unit. A. Q. Correct. Do you have any concerns about the methodology
he used in that report? A. I don't. I'm not going to comment about the I don't know what the ranges
actual testing methodology.
of numbers were because he gave a median number, which is a number half of which are below and half of which are above. Half of which are below -- so I don't know what
that actually looked like; what the scatter of those numbers was over time, but, you know, if you increase, you know, if you are looking at one nanogram per cubic meter, which is, I think, what he roughly calculated was potentially came in from Mr. Popovics' smoking, the urban air has from one to about twenty nanograms per cubic meter of PAHs, and the PAHs are quite prevalent in the areas. And drinking water, this water that I'm drinking
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here, has somewhere between two and twenty-four nanograms per liter, which is actually a lot more concentrated than one or two nanograms per cubic meter of PAHs; so, it's not -- it's an absolutely minute level. Whether it came It may
from the cigarette smoke or not, I don't know. well have. Q.
I can't tell, but it's hardly anything. Do you remember what the levels of PAHs that
Mr. Repace found in his report were? A. Well, I thought it was a background of one; he
went up to two or background of one-and-a-half; went to two-and-a-half. precise. I would have to look at that report to be
It was some increase over the background, maybe
even the doubling of the background, but the background was very, very low. low. MR. GOECKE: Court's indulgence for a moment? Even the double number was extremely
(Off the record discussion ensued.) THE WITNESS: I have it. Let's see. In the
dining room, it went from a background, he reports, as one, about one-and-a-half, and then after the smoking, went up to three, which, by the way, was the same level or lower than Mr. Repace reported in a published study dealing with his Delaware casinos and hotels. Q. That was the report I asked Mr. Repace about on
Cross-Examination?
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A.
That's right.
There were a lot -- well, there In fairness, there were some
was some that were lower.
half, one-and-a-half or two others, I believe, were nine in a nonsmoking building, and the list, living room, Mr. Schuman said it went from one to two but without better information about this data, I can't really interpret this. background was. I don't know what the scatter of the I don't know what the scatter of the test
was, but -- so it's nothing I can comment on except to say it's really, really low levels. Q. Were you in the Courtroom when Mr. Repace used
the same device to measure the air that was in this Courtroom? A. the same. Q. So what does that tell us about the potential Right. He said it was two, I believe, which is
risks that Mr. Schuman is being exposed to? A. It's a nonrisk. That rule of PAHs, that level I showed you a
of PAHs is absolutely phenomenally small. microgram of cubic meter.
A nanogram is a thousandth of
that, unbelievable small amount of material. Q. Mr. Schuman could smell the smoke. Doesn't that
mean it should be higher? A. No, because, first of all, they're different
PAHs, and the odorant agents in cigarette smoke aren't the
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same.
You can't smell PAHs.
They don't have a smell, so
you are smelling other things, and the odor threshold is really quite low, those other things. Q. So he could smell smoke; have rapid eye blink as
he describes it, nasal irritation, and still be exposed to the same amount of PAHs that are in this Courtroom, which is a nonsmoking building? A. Yeah, because they don't have anything to do
with each other; I mean, the agents which cause smell entirely different from PAHs. MR. GOECKE: THE COURT: Thanks, Doctor. Cross. Your Honor, may we take a break
MR. SZYMKOWICZ:
for a few minutes before we conduct the Cross? THE COURT: Go to lunch if you want. Yeah, let's do that. 1:00 o'clock. Thank you, Your Honor.
MR. SZYMKOWICZ: THE COURT: Okay.
MR. SZYMKOWICZ: (Recess - Lunch.) THE DEPUTY CLERK: Greenbelt Homes, Inc. THE COURT: Okay.
CAL10-06047, Schuman versus
Let's proceed. Good afternoon, Your Honor. We
MR. SZYMKOWICZ:
are resuming the Cross-Examination of Dr. Gots. CROSS-EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. smoke? A.
BY MR. SZYMKOWICZ: Dr. Gots, is there a safe level of secondhand
I believe there is, but no one has ever defined
it, actually what that level is; so, we don't have a number, but I believe there would be, yes. Q. A. Q. What would that number be? I don't know what the number is precisely. So you are saying that Mr. Schuman's exposure to
secondhand smoke was safe, correct? A. I believe, in probability, under a number that
would be hazardous, yes. Q. But you don't know; have any specific level that
you believe would be safe for Mr. Schuman to endure? A. I havent -- actually haven't done any kind of Again, one couldn't do it precisely
calculations of that.
because you can't tell any adverse effects at a certain level; so, it's impossible to know a precise cutoff of that. Q. How do you base your opinion that there is a Is it in respect to
safe level of secondhand smoke? published studies? A.
Well, sure; I mean, with respect to what we know
about mechanisms of action of various agents. Q. That's not what I'm asking you. Is there a
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published study that says there is a safe level of secondhand smoke? A. Well, Mr. Szymkowicz, there's not a study that There are studies of all
would lead to that conclusion.
of the chemicals or, certainly, a majority of chemicals; tar in secondhand smoke, and one can get information from those from a toxicological standpoint and make some determinations. Q. Are you aware that the Surgeon General has
stated that there is no safe level of secondhand smoke? A. Q. Sure. What you are telling me today is that you
disagree with the Surgeon General? A. What I'm telling you, that that statement needs
to be placed into its regulatory -- proper regulatory context. From a regulatory standpoint, that's a very
valid statement. From the toxicological standpoint, that's a different story. Q. Are there any legitimate medical professionals
that agree with you on this issue? A. Q. Thousands. Thousands.
So there is a legitimate medical professional
that has gone on record with its disagreement of the Surgeon General's finding that there is no safe level of
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secondhand smoke exposure? MR. GOECKE: THE COURT: THE WITNESS: Objection, Your Honor. It's Cross. There's no reason to disagree with
the statement of the Surgeon General because, again, as a matter of policy, as a policy statement, which is what I believe that is, it's a perfectly valid statement. BY MR. SZYMKOWICZ: Q. Do you agree with the Sugeon General's finding
that the evidence indicates multiple mechanisms with which secondhand smoke exposure causes injury to the respiratory tract? A. Q. Sure. Do you agree that current heating, ventilating
and air conditioning systems, alone, cannot control exposure to secondhand smoke? A. Well, they can reduce exposure. They may not
eliminate it totally, but they can certainly have an impact on it. Q. Do you agree with the Surgeon General's
finding that models can be used to estimate concentrations of secondhand smoke? A. things. Q. Models are often used to estimate all sorts of Models can estimate things, yes. And you would admit that many practitioners in
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this field have found Mr. Repace's measurements model to be the gold standard of measurements, correct? A. Well, you have asked a multi-part question If I could respond to that, I
there, Mr. Szymkowicz. would be happy to do so?
Many people have used the passive nicotine monitor. I frankly have never seen and I don't think any
exists, publications that have actually been done on what Mr. Repace has done; that have considered all the elements that I discussed in my Direct testimony; that have multiplied by factors of a hundred; that have calculated particulates the way he did, and then have done a risk assessment on a specific person. do that before. Q. I have never seen anyone
He's the only person that I know of.
Do you remember, in your deposition talking
about the Kolb study from Germany? A. Q. Yes. Didn't Professor Kolb quote Mr. Repace
extensively in his report? A. I would have to look at that study again. I Lot of people have
think there was some discussion. quoted Mr. Repace.
He's done a lot of work in the
secondhand smoke arena. Q. Didn't you testify, in your deposition, that
this Kolb study quotes Mr. Repace extensively and
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obviously, you know, respects his work and, you know, his analytical work? A. I have to see the context of what you are I would like to see the study.
talking about. Q.
I'm showing you what you stated in your
deposition on page thirty-six? A. Q. A. Sure. Can you read your statement, please? Yes, I was talking about the fact that in that
study, the limited detection for nicotine was point 08, which is almost twice as high as Mr. Repace's limited -found in his study; so, this was in the context of discussing the fact that Mr. Repace reported a point 05 nicotine level, and in this particular study by Kolb, their lowest possible detection limit -- wait -- point 08. That was the context of this discussion. Q. You stated earlier that you never made a
physical examination of the Schuman, Popovic or Ipolito units, correct? A. Q. That's correct. You did, though, go into Mr. Kaibni's unit in
the other case, correct? MR. GOECKE: to this case. THE COURT: You can ask that question. Objection, Your Honor. Relevance
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BY MR. SZYMKOWICZ: Did you go, in your investigation on the other
case in which I had you as the opposing expert witness, you went to that guy's apartment, didn't you? MR. GOECKE: Your Honor, again, I object. That
case is completely different from this one; involved different issues. THE COURT: This is impeachment, and the
question was asked on Direct if he at some point -- if he went and visited -- didn't visit the residences; didn't do an exam of Mr. Schuman, and from the basis of his opinions with regard to smoking in this instance, the fact that he may have gone in one instance and not the other instance, question of weight more than admissibility, I think. MR. GOECKE: But it's unfairly prejudicial
because there might have been reasons in that case for him to investigate that are not present here. THE COURT: THE WITNESS: THE COURT: Did you go visit the other one? I beg your pardon, Your Honor? Did you visit the place in the other
THE WITNESS:
I did.
BY MR. SZYMKOWICZ: You smelled the secondhand smoke, didn't you? MR. GOECKE: Objection, Your Honor. Can he tell
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you why he went there, Your Honor? MR. SZYMKOWICZ: do it here. Cross-Examination. He didn't
That's my whole point. Go ahead. Ask the question.
THE COURT: THE WITNESS:
What am I answering?
BY MR. SZYMKOWICZ: Q. You smelled the secondhand smoke in the Kaibni
unit, didn't you? A. I smelled smoke in his unit; didn't smell it in
anybody elses. Q. A. Q. A. You didn't go into anybody elses? That's correct. You didn't go into the Popovic unit here? I wasn't asked to frankly. I had the
information I needed. do that. Q. A. report.
There was no real reason for me to
What information did you have? I had all the reports. I had the measurements. I had Mr. Repace's I had the discussion of
when and how Mr. Popovic did his smoking and where he did his smoking. You know, I had what I needed.
I had that in the other case too; just the attorneys wanted me to speak to the Defendant about his smoking activities. Q. Yeah. I'm going to show you, through
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Mr. Schuman's computer, the Kolb study. to read that Kolb study, please. A. Q. A. Sure. Along with the conclusions. Can you make that larger? Okay. Q.
I would like you
Okay.
I'm sorry; what was the question?
I would like you to read the conclusion of
Mr. Kolb's study, beginning where "Repace and Lowrey's model." A. "Repace and Lowrey's model uses retrospectively
determined parameters like room volume, number of seats, ventilation rate as well as nicotine concentration per cigarette to calculate nicotine concentration as a leading parameter for the environmental tobacco smoke exposure. Data regarding smoke prevalence and number of smoked cigarettes per smoker an hour can be obtained from epidemiological studies, and if the working time is known, the additional lung cancer risks for exposed workers can be calculated and compared with epidemiological data of basic lung cancer risks of nonsmokers." Q. A. Do you agree or disagree with this conclusion? I agree that people do do that, and he's talking
about hospitality situations and so forth where you want to calculate the potential amounts of nicotine in a bar and so forth; been enough measurements of things like that
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to use other information as a surrogate for that, and then they calculate risks for general policy purposes. to regulate secondhand smoke. Q. Do you agree that Kolb recognizes that Repace's That is
model is the correct model to use in doing what Mr. Kolb is trying to get in this report? MR. GOECKE: I object, Your Honor. I'm just
confused as to what model we are talking about. Mr. Repace uses lots of different model samples. MR. SZYMKOWICZ: study. MR. GOECKE: that model was. MR. SZYMKOWICZ: Dr. Gots cited the study in his There's been no evidence about what It's the model used in the Kolb
deposition, so presumably, he's familiar, right, familiar with the study? THE WITNESS: I haven't read it for awhile.
Again, I'm not sure what model you are talking about either because there are a lot of things they were talking about in that study; also a lot of things Mr. Repace did; so, if you are talking about monitoring or converts to environmental tobacco smoke from nicotine or a risk assessment model, I'm not sure which model you are speaking of. BY MR. SZYMKOWICZ:
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Q.
But you agree you brought up this study in your It wasn't something that I gave to
deposition, correct? you, was it? A.
No, I brought it up for reasons that I have told
you, and that is because their limited detection was point 08 micrograms per cubic meter. point 05. Q. Mr. Repace's is
That's the reason I brought that up. Would you agree that this Kolb study states,
quote, "The validity of the Repace and Lowrey model of lung cancer risk was determined by air nicotine concentrations as the leading parameter for ETS exposure in the hospitality industry." MR. GOECKE: THE WITNESS: I object. I believe they are talking about I don't have any problem with
the risk assessment model.
Mr. Repace's risk assessment model as, again, a matter of use in public policy determinations. critiquing here today. Q. Do you also agree that the Kolb study states, That's not what I'm
quote, "The appropriate correlation of atmospheric and biological markers in studies of ETS exposure has been discussed in detail by Repace, et. al.," end quote. MR. GOECKE: Your Honor, I object. If he wants
him to read the report, he can read the report. THE COURT: He can ask.
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MR. SZYMKOWICZ:
Presumably, he read the report
because he doesn't have that memorized. MR. GOECKE: in the report. in the report. THE COURT: If he doesn't have it memorized, he You are asking him if he had that
If you want to ask him about his beliefs
THE WITNESS: referring to.
Yeah, I don't know what that's
BY MR. SZYMKOWICZ: Do you believe there is a risk Mr. Schuman will
develop lung cancer as result of his exposure to the Popovics' secondhand smoke? A. Q. What was the first part of that question? Is there a risk that Mr. Schuman will develop
lung cancer as a result of Popovic's secondhand smoke? A. Q. A. Q. I believe there's absolutely no risk. None at all? None at all. Is there a risk that Mr. Schuman will develop
heart disease as a result of Popvic's secondhand smoke? A. Q. Same answer. Is there a risk to Mr. Schuman would result in
bronchitis as a result of Popvic's secondhand smoke? A. No.
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Q.
Is there a risk Mr. Schuman will develop
sinusitis as a result of his exposure to Popovic's secondhand smoke? A. Q. No. Why is your answer no? What about Dory Ipolito? Dory Ipolito testified? A. Q. Yes. Dory testified that the secondhand smoke was Were you here when
bothersome to her, is that correct? A. Q. I believe so, yes. Do you believe there is a scientific basis for
her belief that Mr. Popovic's smoking was bothersome to her? A. Yeah, probably she smelled it, and cigarette
smoke smell bothers people. Q. Do you believe that Mr. Schuman's complaints
about the secondhand smoke from Mr. Popovic being bothersome to him has a basis in scientific fact? A. I have no quarrel with the proposition that
people are disturbed by secondhand smoke, and that you can smell it at very low levels. If he says it bothers him,
I'm not arguing with him with that proposition at all. Q. So you agree that the second smoke could be
annoying to Mr. Schuman, correct?
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A. Q.
I agree it could be annoying. Do you agree it could be inconveniencing
Mr. Schuman? A. I suppose. I'm not sure that's a scientific
term, "inconvenience," and that's probably a legal term. Q. Would you agree that second smoke is
subjectively annoying to most -- more than fifty percent of nonsmokers in the country? A. I don't know what the number is today. That is
Certainly, obviously, that has changed over time. a concern.
Awareness has increased; so have levels of Twenty years ago hardly anyone
annoyance and concerns.
was concerned about secondhand smoke; maybe fifty percent or more today. Q. I don't know.
So the complaints that Mr. Schuman made of the
eye irritation, the nose irritation, the trouble breathing, they are things that you have read in medical journals about people's typical complaints with exposure to secondhand smoke, is that not true? A. Q. They are complaints. I direct your attention to a book that you Is this a book
published called Chemicals Sensitivities. that you authored? A. Q.
I was one of the authors of that. I direct your attention to page seventy-seven.
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It said that before the bans on secondhand smoke, and then I quote, "Conference rooms and offices were often filled with cigarette, even cigar smoke," parentheses, "hence, the expression, smoke-filled rooms," end quote, end parenthesis, period. "What could be more contaminating
than the hundreds of irritating chemicals emitted by secondhand smoke?" Question, Paren, end quotes. "What could be more contaminating than the hundreds of irritating chemicals emitted by tobacco smoke?" A. That makes my point exactly. We are talking
about conference rooms where people -- everybody was smoking or, frankly, when I was in Medical School, half the class smoked pipes and cigarettes, as did the professors; so, we had lecture halls filled with smoke as well, and certainly, for some people who are nonsmokers, it was bothersome. That's very different from the amount
of exposure that we are talking about in this matter. Q. If you had a real medical practice with real
patients, would you advise your patients to -MR. GOECKE: Honor. THE COURT: moment. He can -BY MR. SZYMKOWICZ: He's not treating patients at the Objection, characterization, Your
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Q.
If you had a treating practice, would you advise
patients that it's safe to live next to Mr. Popovic? A. Oh, I would not advise them it was unsafe. I
would do what I have done a hundred times in risk communication with all kinds of groups. I would not tell If
people that they aren't bothered if they are bothered. they say that it bothers them, I have no basis to refute that, but as far as a health risk is concerned, I would not be concerned about the type of smoking that we have heard here as a health risk because I wouldn't advise patients it was a health risk for them. Q. So if a patient walked into your office and Is it safe
said, Dr. Gots, a smoker moved in next door. to live in this house? A.
What would you tell them?
I would tell them may well be -- may not be or
may well be because of how much they smoke and the nature of the material. Probably with a single smoker next door, It may be unpleasant, and that's
it would not be unsafe.
probably what I would say. Q. What about if the family had children, would you
advise that the children would be safe if exposed to secondhand smoke such as from the Popovic house? A. I would have to look again. You are asking me
questions which I wasn't prepared for today, but I would have to look again at the -- there is a lot of literature
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on secondhand smoke in children and asthma, and I have to see how much; what level of secondhand smoke has been connected to childhood asthma. families clearly has. I know two-parent smoker
I think there is less with And how low they have studied
one-parent smoker families. that.
I don't know the answer today but something I would I would look at the science of that question. So if there were children that have a history of
look at. Q.
asthma, you would tell them that it would be unsafe for their kids to live next door to a smoker? A. No, I didn't say that. I would look at the
data; look at the literature with children with asthma and secondhand smoke for determination. Q. I can turn it around. Would you go on the
record as telling your patients that secondhand smoke is safe to live next to? A. Depends on how much secondhand smoke. If it's a
relatively small amount of secondhand smoke, yes, I would. Q. A. You would say it's safe? I would say it was more probably than not safe;
for example, the situation that we are dealing with here, yes. Q. Can you point me to one study anywhere that
contradicts the Sugeon General's findings that there's no safe level of secondhand smoke?
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MR. GOECKE:
Objection, mischaracterizes his
THE COURT:
Been asked and answered.
He said
there were no studies. THE WITNESS: THE COURT: I'm sorry? I think you said previously, there
were no such studies; only conclusions that might be drawn from a number of studies. THE WITNESS: Sure.
BY MR. SZYMKOWICZ: Are you aware of any studies that have
questioned Mr. Repace's methodology in measuring secondhand smoke and determining risks from the secondhand smoke? A. I don't think anyone can get such -- can get
such a study published today. Q. A. Why not? Because there's a tremendous publication bias in No one has published
the whole arena of secondhand smoke.
a study that has questioned anything about secondhand smoke issues in 20 years. Q. risks -A. May be obvious to you, Mr. Szymkowicz. It may Isn't that because it's so obvious that the
not be obvious to everybody.
People don't study that, and
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they don't publish that. Q. Doesn't that put you on the fringe of prevailing
scientific and medical opinion? A. I don't think so because the opinion that I have
given here doesn't say anything about regulating secondhand smoke; stopping people from being exposed to secondhand smoke; I mean, I think that's fine. We're
talking about low doses, and actual risk and actual health effects. That's all I'm talking about here today, and I If you went to the
don't think that's fringe at all.
Society of Toxicology, and I'm a member of the Society of Toxicology -- there are seven thousand members of that organization. I think ninety-five percent would agree
that, toxicologically, there is a dose below which secondhand smoke, just like everything else, is not; does not pose a risk to people. Q. You talked about increases in risks from -- by Wouldn't you agree
the figure of two in ten thousand.
that it would be a pretty bad thing to be one of those two? A. Well, I mean, remember, those two are They are not real people, first of
theoretical people.
all, but obviously, if someone which is -- but your point and that question is exactly my point about regulatory risk assessment because when you have even a theoretical
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risk of two in ten thousand, and you have three hundred million people, that comes out to a theoretical risk of hundreds of thousands of people. Theoretical, okay.
There you regulate; so, two in ten thousand becomes a lot of people potentially theoretically, if not knowable theoretically at risk. Q. If Mr. Schuman's risk of unfortunate outcomes is
being defined as cancer, heart problems, is two in ten thousand, isn't that significant when you are talking about human beings? A. But that's not his risk. Again, you're
mistaking a public policy approach to risk assessment and saying that that is his risk. Q. A. Q. A. What is his risk? Probably zero. My opinion is zero. That's not his risk.
So where did you come up with? Because it -- at those extremely low levels,
there is no apparent risk. Let's take the PAHs. Let's talk about that.
That's one of the carcinogens; I mean, he gets more, more PAHs from driving a car in a city for a week than he would get from that one microgram or one nanogram per cubic meter from someone smoking outside. meat, loaded with PAH's. We eat that. Eating charcoaled
The grilling of meat makes PAHs.
Drinking water has more PAHs in it than his
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house did. Q. But you can't quantify Mr. Schuman's risk from
Mr. Popovic's smoking, can you? A. Can't be quantified because there is no basis
for quantifying it. Q. You have been paid for your testimony here
today, haven't you? A. Q. A. I have been paid for my time. How much have you been paid? I don't know the total, but four twenty-five an
hour for my review activities; I think four ninety-five for my testimony. Q. A. Q. A. Q. A. Q. trial? A. I don't know. Maybe fifteen, something like And how many hours have you spent on this case? Quite a lot. Didn't you spend 20 hours as of May, correct? Correct. So that would be about $10,000.00 roughly? Probably. In May, how many hours did you spend prior to
that maybe. Q. You have been here at trial. You have been
billing at about ten hours a day; now is the fourth day? A. Six hours, seven hours, but in that
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neighborhood. Q. case? A. Q. Probably. And this isn't the only secondhand smoke case So you have been paid at least $30,000 in this
you are working on, is it? A. Q. I think I have one other. The Hearshman and Wieman case, how much have you
been paid up to date on that case? A. Q. I don't know. So you are making a lot of money on the
secondhand smoke cases, aren't you? A. This is a minute fraction of what I do. This is
these two cases. Q. How often do you testify? How often have you
testified in the last five years for Plaintiffs as opposed to Defendants in Court cases? A. Q. A. Q. I think just once per Plaintiff. That's it? Yes. Most the people you testified for are
Defendants? A. Q. That's correct. And most of the findings that you give, if not
all of the findings, are that there's no relationship
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between the statements and claims made by the Plaintiff against the Defendant, isn't that the case? A. testimony. No, the findings are different from my I have found -- I find, not in an infrequent
basis, that there is a connection between alleged cause of something and the outcome; for example, the asthma in a child living in a house with mold in it. I have found
many times that there is such a connection; then I wouldn't be asked to testify that there wasn't such a connection. Usually, when I testify, obviously gets to the point where I'm testifying for the Defendant. I have
looked at all the materials, looked at the diagrams, looked at medical records, looked at history and found there's no identifiable causal relationship. Q. How many times have you testified in a court of
law in the last five years? A. times. Q. A. Q. A. How much have you made off of this testimony? Off of what, this testimony? No, as far as your expert witness? I have no idea. I had a large organization that Five years, I don't know. Twenty-five or thirty
did the billing and until fairly recently -Q. It was in the hundreds of thousands of dollars,
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wasn't it? A. Q. Yes. How much have you made off of Plaintiffs in the
last five years testifying in Court? A. Q. A. I haven't testified for Plaintiffs much. Zero? Right. Well, I think once; may have just been a
little longer than five years ago. MR. SZYMKOWICZ: Court's indulgence, Your Honor?
(Off the record discussion ensued.) MR. SZYMKOWICZ: Your Honor. THE COURT: MR. GOECKE: Redirect. Your Honor, if I may. I just want I have no further questions,
to make sure the record is clear. THE COURT: MR. POPOVIC: THE COURT: Mr. Popovic, do you have questions? Yeah, I have. Sure. Sorry. Thank you.
CROSS-EXAMINATION BY MR. POPOVIC: Q. Mr. Gots, you, at the beginning, you are You
explaining something connected with psychosomatic.
said it's out of fashion, symptoms and perceived problems and disorders, that sort of thing? MR. SZYMKOWICZ: We object to psychosomatic
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because that's not covered in what he testified to in his deposition. THE COURT: I haven't heard the question yet.
What is the question? BY MR. POPOVIC: Q. years ago. It came to my mind what happened a couple of I was at home and probably I was reading or
writing something until the wee hours in the morning; so, I was sleeping a little bit longer. My wife left home
early in the morning, and I remember that she told me that she washed the things and instructed me to put things from the washer to the dryer. A. I know that story; not from you, but from my
wife, washers and dryers. Q. After five minutes, something like that,
somebody was knocking at the door from the -- like the next house was in flames or something like that. And I opened the door. It was Mr. Schuman, very
frustrated, very angry, red faced, complaining that we are poisoning him, killing him, and that there is smoke all over the place. And I told him that nobody smoked in the house until the previous evening. morning. My wife left early in the I
She doesn't smoke early in the morning.
didn't have habit of lighting a cigarette before Noon, and
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then I understood when I saw outside.
He was showing that
it was a vapor coming out through the ventilation hole from the dryer; so, he mixed up vapor with cigarette smoke. And I could say that he was really suffering
because he was afraid. Is that a textbook example of that sort of symptoms and perceived problems and disorders? MR. SZYMKOWICZ: Your Honor, I object to the I
testimony then that was in the form of a question.
think it's irrelevant, and moreover, it's outside the scope of what Dr. Gots testified to in his deposition, which means we can't get into those kind of areas here. THE COURT: example. Like I said earlier, it's more of an
I was going to make one up myself. That the sort of thing you were talking about? THE WITNESS: THE COURT: THE WITNESS: I'm sorry? Go ahead. I can't answer specifically about
what was affecting Mr. Schuman on that occasion, but that kind of experience could be experienced as a previous smell of cigarette smoking, I guess. BY MR. POPOVIC: Q. You mentioned on the deposition, I think today,
I think some other agents, smokes and gases which are also similarly or equally dangerous as secondhand smoke.
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A. Q. A.
Oh, sure. Could you give us -You mean, other agents as dangerous as
secondhand? Well, all -- there's nothing terribly unique about the chemicals, including those that can be toxic under various circumstances in place of secondhand smoke. Carbon monoxide comes from lots of other places. PAHs we
have already been talking about; come from many other places, including grilled meat where you can get PAHs. How about wood burning fires? There's no difference
fundamentally between burning tobacco and burning fires in the fireplace. Those which often smell good to people Formaldehyde, chromium,
have lots of the same chemicals:
PAHs, carcinogenic chemicals in fire burning wood fires. Q. A. Q. Mr. Repace, I think, mentioned diesel? Absolutely. Diesel has lots of PAHs.
What about garden lanterns that people are using
against the mosquitos? MR. SZYMKOWICZ: Your Honor, I object to this.
That's not what is at issue in this case. THE COURT: The answer is simply there are lots
of things that can produce -MR. POPOVIC: THE COURT: Yeah. -- toxic chemicals.
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BY MR. POPOVIC: What I wanted to ask, for example, five garden
lanterns for hours in the garden is as equally dangerous as two or three cigarettes, for example, which could be smoked in 15 minutes? THE COURT: Is there a proffer that this is I'll
going to lead to some other testimony or evidence? give you an example.
If the testimony was that Mr. Schuman, for example, runs five garden torches every night, then it might be relevant or if beyond that, do you have any example like that that's pertinent to this case? THE WITNESS: I'm using garden lanterns for
example, but my question is -MR. SZYMKOWICZ: Your Honor, at the risk of
having to file another lawsuit, let's not go into this. BY MR. POPOVIC: Garden lanterns smoke? It wouldn't be quite the same frankly because
you are dealing with a pure and a different fuel, and you have some combustion products from the wick as well, but it's not the same as burning wood or burning tobacco, which give you many more chemicals. MR. POPOVIC: THE COURT: Okay. Okay. Thank you. Now, Redirect.
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MR. GOECKE:
Thank you.
REDIRECT EXAMINATION BY MR. GOECKE: Dr. Gots, you talked a bit about limit of Why did you bring that up
detection in the Kolb report. at your deposition? A.
Well, one of the things that I was concerned
about but hadn't had the chance to research at that point was the fact that all of the published studies, and I read maybe thirty of them or so, at that point measured levels that are higher as the lowest level than was measured here. In other words, here it was point 05 micrograms per All of those studies published higher In fact, most of the
cubic meter. levels.
No one measured point 05.
studies where they talked about a limit of detection had a higher level than point 05. I have since learned a bit
more about that, what that was all about. Q. A. What have you learned? Well, if you sample for a month, you get a lot
more air coming through the sampler, and you, therefore, can get a lower limit of detection, but really takes a month of sampling before you can find point 05. Most of
the studies do a week of sampling, maybe ten days, something of that sort. And then I tried to do some additional
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exploration with the laboratory that does Mr. Repace's testing; got kind of Stonewalled. Q. A. What do you mean "Stonewalled"? Well, I was interacting with a man named
Mr. Perrino, Charles Perrino, who runs the laboratory. MR. SZYMKOWICZ: Your Honor, I object to any of
this testimony because this didn't come out in anything we have discussed with him before. MR. GOECKE: He just brought up limited He opened the door to it.
detection on Cross-Examination. THE COURT: the Stonewalling. MR. SZYMKOWICZ: what the lab reported.
As far as Stonewalling, I'll allow
I don't think he can testify
If that was the finding or basis
of his opinion, he should have turned it over. THE COURT: He said he just did some recent
studies, but I'll sustain, recent research. BY MR. GOECKE: Q. Is there a published limit of detection for the
passive nicotine monitor that you are aware of? A. is. I'm not sure. Well, no, I'm not sure that there
In fact, I don't think the laboratory publishes its
lowest identifiable level. Q. In fact, I believe Mr. Repace testified that he
just called Charles Perrino to find out what the limit of
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detection was? A. Q. Right. In the Hearshman case that Mr. Szymkowicz keeps Is it the
referring to, who is your client in that case? landlord condo association? A. Q. A. Q. A. Q. his unit? A. Q. Yes. I think it was the Defendant. Who is the Defendant? The individual who is being sued. The smoker? Yes.
And was that part of the reason why you went to
Was there an issue about the ventilation system
in that case? A. Not that I recall. No. I think it was quite a
different sort of matter. Q. the unit? A. Yes, there was an engineer. I guess there were Was there an engineer with you when you went to
issues of ventilation; how the material travels, that particular subject. Q. have here? A. No. Were those garden style townhome units like we
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Q. A. Q.
What was that building like? They were multi-story. The studies that show that children of smokers
are more likely to develop asthma, are these studies on children? I'm sorry. I'm sorry; are those studies about smokers? Are those studies about children who live with
the smoker or who live next door to the smoker? A. Q. Live with the smoker. And, again, in the studies that we are talking
about to secondhand smoke, other carcinogens, those studies that evaluate populaces, the subjects have already contracted a disease, isn't that correct? A. Well, there are some prospective studies which
are longitudinal where you follow people for long periods of time who have not yet contracted disease. are individuals who have contracted disease, retrospective, yes, case-controlled studies. Q. But in this case Mr. Schuman has not been Most studies
diagnosed with any disease? A. No. MR. GOECKE: Thank you.
CROSS-EXAMINATION BY MR. SZYMKOWICZ: Q. Dr. Gots, if Mr. Schuman comes down with cancer
in ten years, do you believe that at that point he would
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have a cause of action for damage resulting from Mr. Popovic's smoking? MR. GOECKE: Speculative. THE COURT: Opened the door. Just opened it. Objection, Your Honor.
Well, that's a legal -MR. GOECKE: It's a legal conclusion. We need
more facts for the hypothetical. intervening ten years?
What happens in the
Does the smoke stay the same?
BY MR. SZYMKOWICZ: Q. I'll make it very simple, if you will.
Mr. Schuman moves out of his house today; goes to a place where he is never exposed to secondhand smoke, and he has lung cancer; been diagnosed in five years. Would you
believe that there's a factual basis for correlation between Mr. Schuman's lung cancer and the Popovics' smoking? A. You mean, causal attribution as opposed to an
association? Q. A. Whatever you want to call it? Answer is no. No causal attribution. No, not.
No one has ever been shown to get lung cancer from that kind of exposure. Q. Is there any level that you can conclusively
prove lung cancer as having been the result of secondhand
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smoke? A. There are levels that are high enough to make I
some inference that, at least, there's a potential. think it would be unusual to be able to make a more
probably than noninference, but you may get close with some of the hospitality workers, some of the casino workers, perhaps. Q. How can you explain all the deaths of nonsmokers
from lung cancer? A. People get cancers of all sorts without having Most cancers have no identifiable cause, Most lung cancers do not have a
explanations.
including lung cancer.
specific identifiable -- well, let me put this -- many lung cancers are caused by cigarette smoking. There are
many people who have never been exposed to cigarette smoke, either passively or directly, who develop lung cancer having nothing to do with smoke at no time. Q. What are the effects of exposure to secondhand
smoke to a nonsmoker? A. Q. Court? A. Q. A. None. None? I mean, unless -- excuse me. No, let me answer Depends on the amount of exposure. The exposure that you have witnessed here in
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properly.
Except obviously in the case of Mr. Schuman, he
complains of many symptoms when he experiences secondhand smoke. He doesn't like it. It bothers him, and he -He appears to have some
begins symptoms for -- for him. symptoms. Q.
Doesn't that indicate that he's suffering some
sort of irritation as a result of secondhand smoke? A. Q. A. Q. Not at all. What about Dory Ipolito? What about her? Don't you think that her symptoms that she
described are related to Mr. Popovic's smoking? A. Well, I don't know, and I can't -- I really
can't comment on the specifics -- specific causes of people's symptoms except to say that I don't believe this level of secondhand smoke actually causes irritation, but in order to say what was the actual cause of a person's symptoms, like trouble sleeping, one would have to look at records; have to look at the workup that was done for that; have to look at the diagnoses that were made and so forth. There's a series of steps that you go through to
look at causality, which really haven't been done fully. Q. I'm showing you a letter dated April 8th, 2011 Have you
from Jason Fisher, who is sitting right there. ever seen this document before?
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MR. GOECKE:
Your Honor, I object.
We are
outside the scope now, aren't we? THE COURT: We talked about the Hearshman Weiman
Go ahead. MR. FISHER: Mr. Szymkowicz, if I can just see
the letter when you have a minute. MR. SZYMKOWICZ: MR. FISHER: talking about. MR. SZYMKOWICZ: THE WITNESS: The cease and desist notice. You wrote it.
I don't know which letter you are
I haven't reviewed it thoroughly.
I think I saw it in passing. BY MR. SZYMKOWICZ: That letter was written by Mr. Fisher, who is
GHI's Counsel in this case? A. Yeah. MR. GOECKE: Objection. Hearsay, Your Honor.
MR. SZYMKOWICZ: I mean, that's -MR. GOECKE: is he a party. THE COURT:
Hearsay that he represents GHI?
He's not a witness to this case nor
I don't know what the question is.
BY MR. SZYMKOWICZ: This letter was written by Mr. Fisher, who is
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the attorney for GHI in this case, correct, but he also in this context, he wrote the letter as the attorney for the condominium association at issue in the Wieman and Hearshman and Kaibni case, correct? A. Apparently. MR. GOECKE: foundation for this. Objection, Your Honor. There's no
He hasn't seen this letter before. No, he said he did see it.
MR. SZYMKOWICZ: THE COURT:
Where are we going? I'm trying to find out if
MR. SZYMKOWICZ:
Dr. Gots admits, in this case, Jason Fisher's client, in that case the condominium association, found Mr. Kaibni's smoking to be a nuisance under their nuisance clause? MR. FISHER: THE COURT: MR. FISHER: THE COURT: I object. Sustained. I object on relevance, Your Honor. Sustained. I have no further questions.
MR. SZYMKOWICZ: THE COURT: MR. GOECKE: THE COURT: MR. POPOVIC: THE COURT: effectively.
Anything else? I don't think so, Your Honor. Mr. Popovic. No, thank you. You may have answered this
You would suggest there's no number below
which, in your view, that there is a safe level of
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secondhand smoke? THE WITNESS: THE COURT: THE WITNESS: levels of this sort. Yes, Your Honor. But there is no number? Yes. You can't do studies at
It's just too little to ever study.
There are lots of studies at levels substantially higher than this that have shown no effects; for example, lung cancer. There are many epidemiological studies with
levels of exposure of a hundred times higher than this which have not found lung cancer. That doesn't mean that
there might not be, even in those studies, one in fifty thousand risk, which you couldn't find because the study is just not big enough; so, the answer, you can't totally prove a negative in epidemiology. You can't totally prove
that something doesn't happen, but you can make inferences from toxicology, and you know how the body works, how it deals with chemicals, how it metabolizes things, how it repairs things, and come to some, I think, reasonable rational conclusion without putting a precise number on it because nobody can do that. THE COURT: Well, you might not prove the
negative, but at the same time, there's no question that secondhand smoke can be dangerous? THE WITNESS: Sure, at the levels that are
absolutely -- I mean there are levels that are known to be
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dangerous.
Clearly, best ones are the hospitality
workers, casino workers, bartenders and to some extent, spouses as well, but when you get to the levels a bit lower than that, it's very hard to find any effects. THE COURT: is always evolving? And is it fair to say that science They find new things; find new
research that demonstrates that some of the old research may have been flawed? THE WITNESS: THE COURT: field of science? THE WITNESS: course, that's true. Of course, that's true. Of Sure. I'm not limiting to this, but in any
There are what is called -- in
epidemiology, there are absolutely limits of how refined you can get. You can't study the effect of one person
smoking occasionally on somebody else epidemiologically because the effect -- you would have to study millions of people. You can't do it; so, it's not possible to do that
by epidemiological methods. THE COURT: of uncertainty? THE WITNESS: THE COURT: caution. THE WITNESS: That's why public policy people do Sure, there is. Better to err on the side of So there's always a certain degree
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that.
That's why we draw this straight line and say,
there's no threshold for policy purposes, but you can't use that to say we know that this person has X risk. That's clinically incorrect. THE COURT: And part of that is because each
person has their own repair system, immune system that differs from everybody else, is that fair? THE WITNESS: That's one part of it. The other
part is the whole methodology, the process by which that risk assessment is done is not -- is totally speculative and guesswork at the lower end of that straight line. It's complete speculation. for that. There's no scientific basis
It's a policy basis; so, if that's the case,
you can't actually say what really happens in that space at the lower end of that straight line. THE COURT: And not confining the question to
secondhand smoke, but are there studies where they can assess people's immune systems. THE WITNESS: Sure. I mean, absolutely. blood There
are studies of every imaginable parameter:
parameter, all kinds of parameters, functional parameters, laboratory parameters, absolutely. THE COURT: THE WITNESS: THE COURT: They do this on an individual basis? Sure. Would those -- now focusing in on
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carcinogens that might be present or may be present in cigarette smoke, are there studies that pinpoint that and compare it with George Burns smoked a cigar and bragged and lived to be a hundred; my sister was forty when she died. THE WITNESS: If you are asking about
differences in people, there's certainly an enormous number of studies that look at genetic differences and responsivity differences, for example, to carcinogens; how they effect different individuals differently; what makes some people more susceptible than others, genetic factors that put people at greater risk, all sorts of studies. THE COURT: Fair to say, even if a study was
done, it showed a, certainly, probability with a given person that it wouldn't necessarily be conclusive. THE WITNESS: That's true. I mean, there are --
I mean, there are some genetic markers for certain cancers, for example, very, very strong: BRAC 1, BRAC 2 for breast cancer. BRAC gene,
Those are -- fifty
percent of women who have that gene will get breast cancer; so, those are very, very strong studies. Some
women get mastectomies prophylactically if they have that gene. THE COURT: studies or tests? How hard is it to conduct those
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THE WITNESS: THE COURT:
I'm sorry? How difficult is it to conduct these
studies on an individual basis? THE WITNESS: We don't have that many yet. That
one is very easy, but there aren't that many individualized genomic studies that can be done to prevent risk, but there are some. REDIRECT EXAMINATION BY MR. GOECKE: Judge Northrop said, isn't it better to err on The government is aware of these
the side of caution? figures, correct? A. Q. Yes.
And has it erred on the side of caution by
regulating smoking in people's homes? A. Not to my knowledge. MR. GOECKE: THE COURT: Thank you. Mr. Szymkowicz. RECROSS-EXAMINATION BY MR. SZYMKOWICZ: One of the findings in the 2006 Sugeon General's
Report is that, quote, this is from page 64, 2006 report, "Secondhand smoke interferes with the normal functioning of the heart, blood and vascular systems in ways that increase the risk of a cardiac event. For some of these
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effects," in parens, "changes in platelet and vascular function," end parens. The immediate effects of even
short exposures to secondhand smoke appear to be as large those seen in association with active smoking of one pack of cigarettes a day." "The large body of evidence documenting that secondhand smoke produces substantial and rapid effects on the cardiovascular system demonstrates that even a brief exposure to secondhand smoke has adverse consequences for the heart, blood and blood vessels," period. Do you agree or disagree? A. Or at least some of them in the Sugeon General's
Report -- and none of them has anywhere near the low levels of exposure that we are talking about here. One of
them involved it was a Japanese group, and they studied a group of people who were brought in to a smoking room, I think twenty minutes or fifteen minutes, something like that, after the smokers had left, and they found some minor changes in a particular biochemical procyclidine (phonetic), I believe it was, that has some effect on platelet adhesiveness. That's one of the low level In fact, I think
studies that they are talking about.
it's the lowest level one anywhere in that report they were talking about, and whether that, in fact, is the mechanism or an important mechanism in cardiovascular
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disease is not fully settled. might be one factor, so. Q.
It was a hypothesis that
Do you disagree or agree with the Surgeon
General's findings? A. I can't agree or disagree without some
understanding of what the qualification of the answer. Q. correct? A. Q. Correct. And you don't know if you agree or disagree with So you're an expert of secondhand smoke,
the Surgeon General on this issue? A. Well, you read a very long thing, so what
question was part of that is it? Q. Whole thing? MR. GOECKE: Your Honor, if he's going to ask a
question of a witness -Could you show it to the witness, please. MR. SZYMKOWICZ: Sure. In fact, I'll bring up
the Sugeon General's Report. MR. FISHER: While we don't mind Dr. Gots
looking at something, as far as judicial notice of it, this goes even beyond the questions Your Honor's asked this witness. THE COURT: That's all right. I think we are
talking about the 2006 report.
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MR. SZYMKOWICZ:
I believe so, Your Honor.
(Off the record discussion ensued.)? THE WITNESS: Okay. So they are saying -- what
they are actually saying here is that there are effects, some effects that can be found -- various effects that can be found. I'm sorry. Effects that can be found from
secondhand smoke that are -- that are potentially related to certain cardiovascular end points, the platelet effects, vascular flow effects and so forth, and that's true. I mean, you can find -- with certain levels of secondhand smoke, you can find certain effects. find it with carbon monoxide, which is one of the components of secondhand smoke. You can, pure carbon You can
monoxide, which we also get exposed to by heaters in our home; it has an action on vascular flow; so, yes, you can find certain effects with certain levels of secondhand smoke, no question about it. Q. A. So which part of that do you disagree with? Just requires that explanation. I mean, it's It's not
not any secondhand smoke. this equals heart disease. Q. A.
It's not all of it.
There are various things.
So, in general, you agree with the statement? I certainly agree that it is a correct statement
as stated, but if we are going to use it in a proceeding
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like this, we have to understand what it is they are really talking about. Q. In the 2010 Surgeon General's Report, in the
preface, you would agree that the Surgeon General found there are four hundred forty thousand deaths each year caused by smoking and exposure to secondhand smoke. you agree with that number? MR. GOECKE: it to the witness. THE WITNESS: said. Yes, I believe that's what he I Again, Your Honor, if he could show Do
That wasn't primarily a secondhand smoke report. There are a lot of deaths related to
agree with that.
smoking; mostly direct smoking. BY MR. SZYMKOWICZ: Q. I would like you to read the final paragraph;
preface the 2010 report starting with, The harmful effects of tobacco smoke do not end with the users of tobacco? A. Sure. MR. FISHER: Your Honor, I think we are taking
Judicial Notice of aspects of the record. THE COURT: That's all right.
(Off the record discussion ensued.) THE WITNESS: Okay. What's the question?
BY MR. SZYMKOWICZ: Q. Do you agree or disagree with any of the
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statements contained in that paragraph, "And let me talk about the harmful effects of tobacco smoke don't end with the users of tobacco." statement? A. Certainly, under some circumstances, the Do you agree or disagree with that
secondhand smoke, people exposed to secondhand smoke can have harmful effects; that with the qualifications -Q. I take it you disagree with the next sentence,
"There is no safe level of exposure to tobacco smoke"? A. Understand, I'm not disagreeing with what they
are saying in the context of what they are saying as a matter of public policy. I agree with that statement; as
a matter of scientific toxicological reality, I don't. Q. And do you agree or disagree with the statement,
"Every inhalation of tobacco smoke exposes our children, our families and loved ones to dangerous chemicals that can damage their bodies, and life-threatening diseases such as cancer and heart disease." A. statement. That's really a broad and almost inflammatory You can say exactly the same thing about this You
cup of tap water because you have the same chemicals. have thousands of them. That, as a general rule, any
inhalation exposes you to deadly stuff is, I think, is a little overstated. Q. This is the statement of the United States
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Surgeon General Regina Benjamin, herself. A. Q. A. Q. A. She signed that. You agree she did? Yes. So you agree she signed that? I agree she signed that. MR. SZYMKOWICZ: Your Honor. MR. GOECKE: THE COURT: THE WITNESS: THE COURT: MR. GOECKE: No questions, Your Honor. Thank you, sir. You can step down. I have no further questions,
Thank you, Your Honor. Next witness. Your Honor, could we take a short
break before the next witness? THE COURT: MR. GOECKE: THE COURT: be? MR. GOECKE: I think both she and Mr. Boswell, Who is the next witness. Ms. Sylvia Lewis. How long do you anticipate she will
about a half-hour combined, Cross and Direct. THE COURT: half. I would like to go about an hour and
Let's put her on. MR. GOECKE: Okay.
(Witness sworn). THE DEPUTY CLERK: Thank you. You may be
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seated. Please state your first and last name and spell them for the record? THE WITNESS: L-E-W-I-S. THE DEPUTY CLERK: MS. GOECKE: THE WITNESS: Thank you. Sylvia Lewis, S-Y-L-V-I-A,
Good afternoon, Ms. Lewis? Good afternoon.
SYLVIA LEWIS, a witness produced on call of the Defense, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. GOECKE: Q. Homes? A. Q. In 1968. Who do you live there with or who have you lived Can you tell me when did you move to Greenbelt
there with? A. Well, we moved there, my husband, and myself and
our two young children, in 1968. Q. A. Q. A. Q. You raised your children there? Yes. Do you like it there? Oh, I love it. Why?
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A.
Well, when we originally moved there, we did it My husband was going back to We lived in Bethesda, where We needed a place
primarily for the children. school. I was going to work.
we had to chauffeur them everywhere.
where they could walk and have more independence. Q. like? And what's the community of Greenbelt Homes Can you describe what it's like to live there,
besides the independence your children have? A. Very mixed, probably the most mixed
economically, socially, lifestyle, singles, families. It's an interesting place to live. Q. And have you ever served on the Board at
Greenbelt Homes? A. Q. A. Q. I served on the Board for 11 years. When did you begin serving on the Board? In Two Thousand. Why did you begin serving on the Board around
that time period? A. Well, I retired from work in '95. I hadn't had
time to be very active before that.
I got involved on
committees, and then was elected to the Audit Committee, and after I served on the Audit Committee for two years, I was asked to run for the Board. important job. I thought it was an
I wanted to be able to do my bit for GHI,
so that's why I served.
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Q. Board? A. Q.
Does it require a lot of time serving on the
Yes, it does. Can you estimate how much time you spent each
week on the Board related activities? A. Well, I was immediately elected as the
Treasurer, and I was treasurer, I don't know, for about five years, I guess, before I was elected President. Being an Officer is extremely time consuming. Let's see.
I would think probably at least five hours a week, 20 hours a month, something like that. Q. A. Q. Did you enjoy the work? Yes, I did. Why is that? MR. SZYMKOWICZ: It's irrelevant whether she She is a Board member.
enjoyed what she did or not. THE COURT: THE WITNESS:
Go ahead. GHI is very important to me, and
so I wanted to make sure that I did what I could to sustain it. It's sixteen hundred units, very different
people, and it takes not just work, but a lot of consideration to see that it works. Q. Along those lines, from time to time, members
have disputes with one another, don't they? A. They are bound to, sixteen hundred units.
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That's over twenty-five hundred people now. Q. Can you tell us a bit about what recourse is
available to someone when they have a complaint against fellow members? A. Well, the first recourse would be going to
either the Member Services Director or the Managing Director and to staff. The staff level thing, they could
try to come to some resolution of the problem. Q. A. stops. Is that Ms. Overdurff's office? Absolutely, yes, and usually, that's where it Usually, staff is able to take care of the
concern. Q. And if staff is unable to resolve the concern,
then what happens; what may happen? A. Then Ms. Overdurff would bring it to the Board
and tell the Board what the situation was, and the Board would decide whether it was something that should go to the Member Complaints Committee. Q. Then what is a Member Complaints Committee,
Member Complaints Panel? A. Okay. There are nine members of the Board, and
so we divide into three Member Complaints Panels, three members to each, three Board members to each panel. That
panel would meet with the members that were having the disagreement or whatever, and meet with the -- with them
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and try to reach some resolution that each side could live with; then make a recommendation to the Board what the Board actually should be -- what recommendation they would make to the members; to the Board what letters could be sent -- that's right -- what letters could be sent to the members. BY MR. GOECKE: Q. of that? it? A. It takes place in the boardroom of the GHI. The Okay. The meeting, itself, what was the format
Where does it take place; who participates in
participants are usually the three members on the complaint panel, and the two members who have the disagreement, we meet with them individually. They may
have -- they may bring witnesses; they may be spouses, and Ms. Overdurff and the Director of Member Services is usually there too, and an Audit Committee member. Q. A. What is an Audit Committee member? We have an Audit Committee which oversees --
which comes to all Board meetings, all executive meetings, and some committee meetings to make sure that the Board is not stepping out of its bounds; is complying with bylaws, and so they always -- since member complaint issues are held in executive session, they are always there to make sure that the business is conducted properly.
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Q.
By properly, you mean in accordance with the
governing documents? A. In accordance and treating the members
correctly, yes. Q. A. Are the auditors members of the Board? No. No, they are elected by the membership, but The Board has no
it's completely a separate committee. jurisdiction over them. Q. A. Q. A. Q. A.
They report to the membership.
So this is a process you have in place? Absolutely. To police yourself? Yes, absolutely. In other words, the auditor acts as a watch dog? Yes. Now, three members elected by the
membership. Q. Is the person who is complaining in the meeting
at the same time as the person against whom they are complaining? A. No, not in the Member Complaints Panel hearing. We want to make sure They can bring
They are held in executive session.
that people fill free to speak freely.
other people with with them as witnesses, but the individuals, the two individuals involved are heard separately. Q. Are there other types of complaints; only member
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versus member? A. Oh, no, sir. Lots of the complaints are GHI
versus member, where a member is not complying with the rules, and GHI -- when the staff is not able to get compliance with the rules, then the member comes to -- is brought before a Member Complaints Committee. Q. After the committee hears the evidence and the
testimony of the people, then what does it do? A. Q. A. In the case where there are? Member against member? Member against member. It tries, as it meets
with the individual members, it tries to find out what they would be willing to do to help ease the disagreement, whatever it is, and then it, the Board, the Member Complaints Committee would write a letter stating, okay, we'll take these steps which you have identified as things you are willing to do to make the situation better to make it possible for you two members to get along or, at least, get along a little better than you are getting along now. Q. What devices are at the committee's disposal to
try and force members to do things? A. Well, the committee can't do anything. The
committee can only recommend to the Board if further action is needed, and the only device to force a member to do something, if you can't persuade, the only way we have
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to force a member to do something is to terminate membership. Q. Did I hear you correctly; the only way to get
them to do something is to terminate membership? Why couldn't you fine them? A. bylaws. Q. A. We are not allowed to fine according to our Our bylaws forbid fines. That's a pretty drastic option, isn't it? It's a very drastic option, and we don't take
it -- we only take it if the actions of a member were extreme, really extreme, out of the ordinary and very damaging to the overall cooperative. Q. Okay. After the Member Complaints Panel, are
there other hearings or opportunities available to people to complain? A. Well, if the Member Complaints Panel recommends
to the Board that further action should be taken, a member should take further action, then the Board could say, you take this action. If you don't, we will hold an informal
hearing before the whole Board. And that is -- but that is only done if we, the Board, would be willing; if that -- if there is still no compliance, to move for a formal hearing before the Board, at which time termination of membership could be acted on Q. Okay. I understand.
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Like to turn now to this particular situation. When did you first become aware of Mr. Schuman's complaints? A. 2009. The first I heard about it was in the Spring of Well, let's see. Was it 2009 when Gretchen
Overdurff, in an executive session, told the Board that Mr. Schuman was complaining about the smoking of his neighbor? Q. So to tie this back to what you described
before, Mr. Schuman had contacted Ms. Overdurff or her staff and raised this issue with them? A. Right, and I did not hear about it until the
executive meeting of the Board in the Spring of 2009. Q. Do you recall what you learned about the dispute
at that time? A. Well, I learned that this was a recurrence after
a complaint that had happened before I was on the Board, and at that time, the Board had -- I think there had been a Member Complaints hearing then but, obviously, a different panel, and the GHI had then sealed the walls between Q. dispute? A. Q. Previously or 2009? Spring of 2009? Mr. Schuman and Mr. and Mrs. Popovic. Did the Board decide to convene a panel for this
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A.
Yes, Spring of 2009 was when the Board decided
that it should go to a Member Complaints Panel, and my panel was Panel One; was selected, and I was the chair of that panel. Q. Okay. And did your panel convene a meeting for
Mr. Schuman and the Popovics? A. Q. A. Yes, we did. Do you remember where that meeting took place? It was in the fall. There was some things that
happened that where it couldn't be held until the fall. It wasn't convenient for either one of the members. Q. Do you remember what Mr. Schuman presented to
the panel at that meeting? A. Well, he had the -- I'm sorry; the names escape
me -- the report, and also, I think Mr. -Q. A. Q. A. Mr. Repace's report? Yes, was also there at that hearing. And? And so he presented the report, and he presented Yes.
his concern about the smoking of his neighbor, and that he could not -- he wanted us to stop the member from smoking. Q. Just, generally, what was his complaint? What
was the injury to him? complaining about? A.
What was the annoyance that he was
Well, he was -- he feared for his health because
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of it. Q. Did he claim that the smoke was coming from the
Popovic unit into his unit? A. Q. A. yes. Q. dangerous? A. We agreed secondhand smoke could be dangerous. Did you agree that the secondhand smoke could be Oh, absolutely, yes. Did you believe him? We had no reason not to believe what he said, Yes, that was --
We did not know if the secondhand smoke in his unit was dangerous. We weren't scientists. We are not doctors; What we were
so, that was not what we were looking at.
looking at, how can we resolve the difference between these two members? Q. Is this an issue that had come up before at
Greenbelt with a member complaining about his or her neighbor smoking? A. It hasn't come to the Board before. I don't
know if it's come to staff before. Q. Greenbelt? A. I was a smoker for many years; so, I smelled Have you ever smelled secondhand smoke before at
smoke, but in my home, so -- so, yeah. Q. Did neighbors ever complain to you about your
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smoking? A. Q. A. Q. No. When did you quit smoking? 1995, when I retired. Going back to Mr. Schuman's presentation with
Mr. Repace to the Member Complaints Panel, what was it exactly that he wanted the panel to do? A. He wanted us to tell the Popovics that they
could not smoke and to enforce that. Q. Did he ask you to install fans or filters or
anything like that? A. Q. at all? A. We got the impression, and this is why we No. Did he require or request any mitigation efforts
reported it to the Board as we did, that there was nothing that would satisfy Mr. Schuman except that his neighbors stop smoking. Q. A. Why did you get that impression? Because he had not -- the opinion seemed -- his
opinion seemed to be that you couldn't seal against the smoke, and any level of secondhand smoke would be dangerous. Q. In Mr. Schuman's opinion, there was no level of
smoke he could tolerate?
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A.
Yes, that was the impression that we got.
That
was why we made the report to the Board. Q. And was Mr. Popovic at that meeting or
Mrs. Popovic there? A. Q. It was Mrs. Popovic that we met with separately. And can you tell us, generally, what information
she presented to the panel? A. I can't remember a great deal. I know that I
think she was willing to try to decrease smoking, but there was no way she was going to promise to quit smoking. Q. A. Q. A. Q. Did she refuse to quit smoking? Well, she refused to promise to quit smoking. So she was going to try to cut back? That was the impression that I got. Did Mrs. Popovic tell you about any remedial
efforts that she had undertaken in her unit to reduce the effects of secondhand smoke? A. I can't remember specifically what she said that
there had been some -- she and her husband had made some efforts, but I can't remember specifically. Q. So the Panel is presented with the stories from
both sides, and tell us a bit about your deliberations. What factors did you consider in this process to the extent you can recall? A. Well, usually in a situation like this, we like
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to be able to say -- to have some steps that can be taken that would be agreeable to both sides. It was extremely
frustrating because there were no steps that we could make either side take because on the one hand, Mr. Schuman said that the Popovics had to stop smoking. On the other hand,
the Popovics said that they would not promise to stop smoking. And so that is why when we went to the Board, we
had to to say we had no recommendation to give to the Board on how to resolve this issue; so, then the Board took up the deliberations of what should be done. Q. A. It was an all or nothing situation basically? Absolutely. It's very frustrating because
usually we try to be able to move towards some kind of lessening of the problem. Q. And so if you granted Mr. Schuman's request and
asked the Popovics to stop smoking, and they refused, as Mrs. Popovic -- she indicated they might, what would be a recourse against the Popovics? A. Well, I don't think we could do that because we We could not say the
tried to treat everybody equally.
Popovics can't smoke unless we were willing to make that a rule for the whole cooperative, and we are not a nonsmoking community, and so we did not see that as an option. We tried -- we do try to treat people equally,
and we have got a lot of smokers in GHI, and so I don't
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see how we could have said, you know, as responsible Board members, we could not lay down the law for somebody or a standard for one family that we were not willing to lay down for the whole community, and that was the difficulty we were in. Q. And so if you did try to force the Popovics, and
they refused, then you would have to terminate then, right? A. Yes, and then if you terminate a member, the
member has a right to appeal to the membership, and the possibility or the likelihood, even the possibility of the membership upholding us introducing a nonsmoking requirement for one household, I don't think that would happen. I really don't because immediately every smoker
would say, well, is my neighbor going to tell me that I'm going to have to stop smoking? option. Q. And so that was not an
That really wasn't an option. Did Mr. Schuman present standards on when it
would be allowed and when it wouldn't be allowed in the co-op? A. Q. What do you mean, for the Popovics? To secondhand smoke in general? Your point is
if you were to pressure the Popovics to stop smoking, then you open the door to having to force all the smokers to stop smoking?
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A.
I don't think that Mr. Schuman was looking -- I
think, in fact, he might have stated, I'm -- I don't know whether it was there or later. I don't know, but he
had -- he stated that he was not interested in pursuing no smoking for the whole community; so, that was not a consideration that -- that he had at that time. Q. Just to take a step back for a moment. Is the
Board required to terminate someone's membership? A. No, the Board only terminates if it's really
extreme behavior that is damaging to the co-op. Q. A. Q. the co-op? A. Q. Right. Right. And even then it's discretionary? And even then it's discretionary. That's pursuant to the governing documents of
If the Board decided to terminate a membership,
what recourse does the member then have? A. Well, as I mentioned, the member would then go
to the co-op, to the total membership, and they can ask for this to be taken up and at an annual meeting or they can ask for a special meeting to be held. If the
member -- if the Board has terminated a membership, the membership has the right to -- the member has the right to repeal to the total membership. Q. They have a right to appeal to the total
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membership? A. Absolutely. Well, they have to within --
within -- I forget.
It might be 30 days of the
termination, but I'm not sure of the time they have to tell the Board that they are going to appeal to the total membership. The action is then stayed until the actual -The Board can decide to
until the appeal can be held.
hold a special meeting or to take care of it at an annual meeting, but I think it's always, the ones I have seen, the appeals I have seen I think are being specially called for the appeal; so, perhaps that's the way it is Q. Does the Board take into consideration how the
community may react to a termination when it makes that decision? A. It has to. It has to because there's a lot of The
time and money involved in holding these hearings. members have to get -- every member has to be mailed
information about the case, and we have to pay for the use of the hall that would hold the membership. Q. A. They are expensive? There are expenses involved. We wouldn't want
to spend the time if it was obvious that the appeal was going to fail. Q. So keeping that in mind, what types of
circumstances will the Board terminate someone's
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membership? A. The most recent ones have been regarding
hoarding, where the member has -- where it's dangerous; the situation in the member's home is dangerous. stuff right against the baseboard heaters. on top of the stove that -Q. A. Fire hazards? Fire hazards. We are row houses. The whole row There's
There's stuff
could go up.
That's been -- there have been other Someone -- I don't think it was the
dangerous situations. member. window. behavior.
I think it was a guest firing a rifle out of the There have been cases where it's extraordinary We have situations in GHI -- we have eccentric
people; makes the place interesting, but sometimes where the eccentricity goes beyond that, and it's a real mental health issue, and the member is really not capable of being a responsible member. Q. And so based upon the Board and the Panel's
review of the evidence in this case, based on what was presented to you, did it conclude that this was extreme conduct? This was dangerous conduct that needed to be
responded to? A. No, because as I said before, lots of GHI
members smoke, and we had no evidence that the Popovics smoked anymore -- that they were the worst smokers in the
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community; so, there was no basis then, to call for a termination. Q. Did Mr. Schuman present any evidence or did
Mrs. Popovic disclose how much smoking took place inside the Popovic unit at that time? A. Q. I don't remember. Uh-huh. They might have.
What other steps may a member take when
they have been aggrieved; for example, in the situation Mr. Schuman went to the committee process, and he was dissatisfied with the result. could have done? MR. SZYMKOWICZ: Your Honor, I object to this Is there any other thing he
because they didn't give him any other opportunities to do anything. THE WITNESS: MR. GOECKE: May I respond? Your Honor has already concluded
their interpretation of the letter is inaccurate. THE COURT: THE WITNESS: You can certainly cross-examine. Any member has the right, for any They can do this
purpose, to go to the total membership.
by asking to be brought as an agenda item at the annual meeting. It only takes ten signatures on a letter to get If it
an item put on the agenda of the annual meeting.
goes on the agenda and every member gets a letter and a packet of stuff that is going to be discussed at an annual
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meeting, all of the documentation that person wanted to go to support the -- whatever item he's putting on the agenda would be included; so, GHI would send -- would send out the agenda and the backup documentation for that agenda item; so, it can be done that way, and that just -- I don't know. It's less than a month's notice that they
would have to do that before the annual meeting or if they don't do that, any member can get up a new business at an annual meeting, and ask that the Board or the membership do something and whatever, depending on what it is; for example, the last time this was done was in the -- that I remember this being done actually at the annual meeting was in the year 2010 where someone wanted the annual report, the financial information, the annual report to be presented in a different way. Okay. So he gets up and it I was treasurer at
was quite a surprise to all of us.
that time; asking for the financial information to be done differently; so, the Board formed a finance committee, formed a sub committee; put this member on the sub committee to help determine what would be the better way of presenting the financial information, but anything could come up. He could ask the membership be polled on a certain issue. You could ask the Board to take action on a
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certain issue. I mean, it's the membership rules the co-op, and they vote for the Board members to carry out policy, and if they don't like what the Board members are doing, they can change that at the next annual meeting. Q. the Board? A. You ask -- you go to the Nominations Committee, That's an important point. How does one get on
and you say, I want to be a Board member or the Nominations Committee might come to you and say, hey, how about running for the Board? And then your biography is This is a weekly
printed in the Greenbelt News Review.
newspaper which is delivered free to every household; not only in GHI, but in most of Greenbelt, and profile. The
Boards, the nominee's bios are in there, and then at the annual meeting -- well, actually it starts out at the annual meeting. The election takes place in the evening, All people can vote
the annual meeting, and the next day. absentee.
They can for the member or they could give a
proxy to another member if they are not going to be able to vote; so, every member has a chance to vote for their Board. limits. Q. A. So it's a very open process? Very open. All terms are for two years, and there are no term
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Q. A.
Anyone can participate? Anyone can run for the Board, anyone. MR. GOECKE: Court's indulgence, Your Honor?
(Off the record discussion ensued.) BY MR. GOECKE: Q. A. a stipend. Q. Do you know how much Board members receive Do you get any payment for serving on the Board? Yes, I'm not on the Board anymore, but I did get
currently as a stipend? A. gets. I'm sorry; I don't know what a Board member I know what I got as an Officer, and the Officers I got a hundred and twenty-nine
get somewhat more. dollars a month. Q. A month.
For about how much time per month
would you say that is? A. Q. A. At least 20 hours, at least 20 hours. So you did this for the money? Of course. No, actually the first time, as I
say, I was on the audit committee first, and they also get a stipend, much smaller one, I think, but when I got the first check, I was surprised. mistake. Q. I thought GHI had made a
I did not realize you got paid for it. You said before that there was an auditor that
set in on the Member Complaints Panel meeting?
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A.
A member of the Audit Committee, so they have
something to do with the outside auditor, you know, our independent auditor, but they are also -- main job is to make sure that, for example, we are not talking about things that should not be discussed in open session, in executive session; that we are complying with bylaws when we take action, yeah. Q. Did the member of the Audit Committee that was
in your Member Complaints Panel come back and complain to you or to the Board about any improprieties or errors from how that meeting was conducted? A. Q. No. Can't the member -- isn't a member also allowed
to go to the audit committee to make a complaint? A. Q. A. Yes. How do they do that? Well, when I was on the audit committee, they
probably come and call me or talk to me, and I would ask them to put the complaint in writing, and then I take it up with the other members of the Audit Committee. Q. Earlier when you spoke about the petition a
member could submit to the Board either for the annual meeting or I think you said at any time during the year to schedule a special meeting, is that correct? A. No, no, this would be for the annual meeting. A
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member can have anything put on the agenda of an annual meeting if they get nine other members to sign. Q. meeting? A. Q. A. Q. A. Q. A. Middle of May. Did you have a meeting in May of this year? Yes, we did. Do you know if Mr. Schuman was at that meeting? I don't know. I don't know. When does Greenbelt Homes conduct its annual
Do you know if he was at last year's meeting? I don't know because I don't keep track of
members that attend. (Off the record discussion ensued.) BY MR. GOECKE: Q. Has -- to your knowledge, has this issue of
secondhand smoke ever been brought up to the Board by anyone in the membership? A. It hasn't come to the Board to my recollection.
Now, this was the only one I can recall coming to the Board. I don't know if it came up with staff. It might
have because, as I told you before, a lot of complaints don't go beyond the staff level; usually, usually, staff is able to take care of them. Q. Looking back on your participation in the
committee, and the fact that we are here today on the 4th
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day of trial, and all the litigation that has gone on for a long time now, is there anything you would do differently? A. to follow. Do you have any regrets about the process?
I think we followed the process we were supposed Given the intractability of both parties, I
don't know what else the panel could have done or the Board could have done in this situation. I wish I -Q. A. Because Mr. Schuman tied your hands? Yeah, and the Popovics won't stop smoking. That
was what Mr. Schuman required. Q. A. Q. A. Did the Board do anything wrong here? I don't think so. Were you negligent? Oh, I don't think we were negligent because -MR. SZYMKOWICZ: THE COURT: that question. THE WITNESS: BY MR. GOECKE: Q. situation? A. Yes, we were. It was very obvious that he was I was very Were you empathetic with Mr. Schuman's Okay. Objection. Hold up. Don't answer
Sustained.
concerned, and that he wanted something done.
sympathetic to that, and I only wished we could have done
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something. MR. GOECKE: THE COURT: Thank you, Ms. Lewis. How long you anticipate? Three hours. Longer than I
MR. SZYMKOWICZ:
think Your Honor wants to go. THE COURT: back -MR. SZYMKOWICZ: THE BAILIFF: (Recess). THE COURT: Let's proceed. CROSS-EXAMINATION BY MR. SZYMKOWICZ: Q. Are you familiar with the dispute, GHI back in Probably about a half-hour. Take our midafternoon break; be
All rise.
1963, with a lady called Ms. Green? A. Q. 1963? Okay. I didn't come to GHI until 1968. Did you ever have the occasion to discuss
this case with anybody within GHI? A. Q. The case? It was a lawsuit that was filed between
Ms. Green and GHI? A. I have no idea what it was. You'll have to tell
me because I don't know what it is. Q. Okay. Are you aware that GHI terminated
Ms. Green's membership in GHI for, quote, persistently and
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aggressively, end quote, violating the Mutual Ownership Contract by failing to provide sanitary care for her pets; failing to maintain adequate housekeeping standards and creates offensive odors? MR. FISHER: this lacks foundation. Objection, Your Honor. I think
She has no idea about this;
relevancy of an issue in Nineteen -THE COURT: case? THE WITNESS: THE COURT: I have never heard of it. Okay. Have you heard anything about this
BY MR. SZYMKOWICZ: Q. Are you aware of GHI ever terminating people's
contracts for things other than nonpayment of dues? A. Q. it? A. Q. Yes. So creating offensive odors could lead to Yes, I am. This would be one of those situations, wouldn't
termination of a contract, couldn't it? A. Usually, it's much more complicated. It's very
rare that it's one single thing will terminate the contract. It might be one of the main things that is
cited in the termination, but as I think I mentioned, hording includes hoarding of pets; what has been a
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problem, and on, perhaps, two occasions that I can remember, that was the basis of termination that was taken to appeal anyway. MR. SZYMKOWICZ: Your Honor, I ask the Court to
take judicial notice of Green versus Greenbelt Homes, 232 Md. 419, 1968 case in which, as I said, the GHI ordered the member to vacate the premises for failing to care for her pets, maintain adequate housekeeping standards, and finally, creates offensive odors. MR. FISHER: Your Honor, we haven't taken a look
that he's referring to -MR. SZYMKOWICZ: MR. FISHER: Cited in our appellate brief.
-- see if there's a recorded case Certainly, Your Honor
recorded in the State of Maryland.
can do that as part of any argument submitted in the case. I leave it to Your Honor to read the case, if that's what you intend to do, in its full context versus what -THE COURT: wish. BY MR. SZYMKOWICZ: Q. Ms. Lewis, I'm directing your attention to Have you even seen this document before? Plaintiff's or Defendant's? Forty-one, Plaintiff. I saw it about an hour Certainly can cite any case you
Exhibit No. 41.
MR. GOECKE:
MR. SZYMKOWICZ: THE WITNESS:
I have.
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ago. BY MR. SZYMKOWICZ: Q. Okay. There's a comment in here that it appears It says, Lewis, quote, "This is the
to be a transcript.
first step in the member complaints procedure", comma, "next is an informal hearing, and then a formal hearing if not resolved." Period. "Secondhand smoke is damaging, Period.
and it is nothing we have to discuss." A. Q. What page? Page one.
Where are you on that?
"I would like to hear from Mr. Schuman." Period. What do you mean by "Secondhand smoke is damaging, and it's nothing we have to discuss"? A. What I meant was we were not -- we were not
there to discuss whether or not secondhand smoke was damaging. What we were there was to discuss the problem
between the two homes, where Mr. Schuman was saying secondhand smoke was bothering him; so, we were not questioning the secondhand smoke is damaging. not a question. That was
The question was, how can we try to ease
the problem between the two neighbors? Q. So you took it as a given that secondhand smoke
was damaging, didn't you? A. Yes.
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MR. GOECKE: THE COURT:
Objection. It's all right.
BY MR. SZYMKOWICZ: The answer is yes? Not secondhand smoke is damaging generally. We
were not talking specifically about this.
We were not --
I think the reason I mentioned that was because we had the report, and I wanted to make it clear that what the complaint panel was there for was not to discuss the report, which would have taken us much longer and which we did not have the expertise to discuss. scientists. We are not something else. We are not We were there to
discuss the problem between two neighbors. Q. But to clarify, you took it as a given that
secondhand smoke was damaging in general, correct? A. Q. In general, yes. And Mr. Schuman brought a copy of his secondhand
smoke report, didn't he? A. Q. A. Q. A. Yes. And did the Board even look at it? I don't know what the Board did. Did you look at it? I did not study it. Let's put it that way. I know I I
can't remember whether I looked through it.
think that other members of the panel did, but that was
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not what I saw our concern was. Q. Mr. Repace, Mr. Schuman's secondhand smoke
expert, testified at the Board hearing, didn't he? A. Q. A. Q. At the Member Complaint. Member Complaint? Yes. Did the Board listen to his testimony? Did the
Member Complaint listen? A. Yes, we were there. We did, but that was not We were there to discuss
what we were there to discuss.
what could we do; what steps could be taken by these two people so that we can make it, life easier for the members. Q. Did Mr. Popovic present any evidence in
opposition to Mr. Schuman's written report that he submitted to the Board, Member Complaints Panel? MR. GOECKE: there, Your Honor. BY MR. SZYMKOWICZ: Q. Okay. Did Mrs. Popovic or Mr. Popovic present Objection. Mr. Popovic was not
any evidence in opposition to the written report that Mr. Schuman presented to the Member Complaints Panel? A. I cannot -- I can't remember whether anything
was presented that evening, but it would not have been discussed because we were not there to discuss the pros
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and cons of secondhand smoke. there for.
That was not what we were
We were there to try to get this problem
between two neighbors taken care of. Q. But you are not answering my question.
Did Mr. or Mrs. Popovic -A. Q. I said, I don't remember. Did Mr. and Mrs. Popovic ever present any
evidence in opposition to the oral testimony that Mr. Repace gave at the hearing? A. I don't remember. MR. FISHER: answered this question. BY MR. SZYMKOWICZ: Q. A. "I don't remember." I don't remember if they presented because that, Objection, Your Honor. She has
to me, was not the issue. Q. A. Did anybody other -As I said, we took it as a given, secondhand We were not questioning that.
smoke can be damaging. Q.
Did anyone, other than Mrs. Popovic, testify on
the Popovic side at the Member Complaints Panel? A. Q. I don't believe so. I don't believe so.
Did the Popovics present anything in writing to
the Member Complaints Panel during this process? A. I don't believe so. I'm not sure, but I don't
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think so. Q. So there was no evidence presented that was in
controversy; controverted Mr. Repace's testimony, did it? A. Q. That was not what we were there to discuss. Why is it that the Board wasn't there to discuss
whether Mr. Schuman was suffering damage or an injury from Mr. Popovic's and Mrs. Popovic's smoking? A. We are not physicians. We are not scientists.
We are there to try -- to try to alleviate the problem between two members. Panel is for. Q. And the Member Complaints Panel, when it That's what the Member Complaints
convened this meeting in September 2009, it already knew that the Popovics weren't going to budge and Mr. Schuman wasn't going to budge, correct? A. No, I'm not sure we did. It became clear in the
meeting that they wouldn't. Q. obvious? A. Q. A. What's the difference? There was no way either side was going to budge? That was our understanding. That was the It became obvious; not just clear; it became
premise that we took when we went to the Board with no recommendation. Q. And, at that point, wasn't it GHI's
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responsiblity to escalate this to the Board for its decision on whether there was a nuisance presented by Mr. Schuman's complaint? A. You mean, go to an informal hearing? Is that
what you are asking? Q. A. Yes. We did not see the purpose of that because if
you go to an informal hearing, you have to be willing to go to a formal hearing; at which time, you could terminate membership. If you don't see that the termination of
membership is possible given the situation, then you would not -- the Board chose not to go to an Informal hearing. Q. But the Board didn't give either Mr. Popovic or
Mr. Schuman the option of escalating it, did they? A. Both Mr. Popovic and Mr. Schuman could have If the Board does not choose
taken it to the membership.
to go beyond the Member Complaints Panel then and listening to the recommendations or nonrecommendations of the Member Complaints Panel, any member can go to the total membership to have them take action or to -Q. But, again, you didn't answer my question. The
Board did not give Mr. Schuman the opportunity to present his grievance to an informal hearing, did they? A. They didn't have to. They did not, and they
didn't have to.
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Q. landlord? A.
Isn't it true that GHI is Mr. Schuman's
No, Mr. Schuman is one of sixteen hundred
members who owns GHI. Q. That's not the case. MR. GOECKE: Honor. THE COURT: Sustained. Isn't it true that --
Objection, legal conclusion, Your
BY MR. SZYMKOWICZ: Q. Are you aware that GHI's governing documents
establish a relationship as landlord to tenant between GHI and its members? MR. GOECKE: Same objection, Your Honor. In
addition, the document speaks for itself. MR. SZYMKOWICZ: She is a member of the Board of
Directors for 11 years; presumably, she would know, and she is also an owner of GHI. stuff -THE COURT: Membership Agreement. THE WITNESS: The only times I have heard the You read that language in the I think this is basically
landlord tenant situation is because when we do have nonpayment of member fees, it goes to landlord tenant Court; however, what members have, since they are part owner not only of the sixteen hundred units but also 80
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acres of woodland, what they have is the opportunity to make decisions to override the Board, which no renter would have in terms of a renter-owner situation; so, it's very -- we are kind of like a fish and a fowl. real property, and we are not rental property. very different situation. BY MR. SZYMKOWICZ: Q. I direct your attention to Exhibit No. 20, We are not It's a
specifically on the first page; specifically paragraph D, the background section: "Under Maryland law, this
contract creates a legal relationship between GHI and Member as that of landlord and tenant." Does that refresh
your recollection sufficiently for you to answer this question? A. Yes, it does. Legally, under Maryland law,
that's what we are.
That's why we go to landlord tenant
Court for nonpayment of fees; however, our members have far more rights than tenants do in a rent situation because they are the ones that elect the Board, and they are the ones that can bring any issue to the total membership to override any Board decision, and every member has the right to do that. Q. How long would it have taken in terms of months
for Mr. Schuman to petition the membership after the Board made its decision in roughly -- roughly October 2009 for
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him to get a decision from the membership? A. It would have taken -- when was that, September,
October, November, December, January, February, March, April, May, eight months. Q. A. Q. Eight months? Eight months. And what was Mr. Schuman supposed to do during
the intervening eight months with regard to Mr. Popovic's smoking? A. Was he supposed to just suck it up literally? Well, it would be quicker, I would think, to go
to the membership than to start a lawsuit. Q. A. But it would have taken at least eight months? But compared to, you know, it would -- at least
at that time, he would have been moving towards something to get the membership, his fellow members to, and he would be preparing his documentation, and he would be getting his -- letting the Board know this was what he was intending to do, so it could be incorporated in documents that are sent to the membership in early April for the May Annual Meeting; so, there were things for Mr. Schuman to do. Q. Did the Board receive any evidence, at the
Membership Complaints Panel, that Mr. Schuman broke any sealing that was previously done on his unit by his renovations in 2007, 2008, 2009?
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A.
Well, the Board heard about the 2009 complaint The Board got a report about the
in the Spring of 2009.
work that had been done by GHI prior to the previous complaint and then also the renovations that had been done by Mr. Schuman later, I guess in 2008. Q. And what was the finding? Yes.
Was the finding by
the Board that these renovations broke a seal or did they just make no determination whatsoever? A. What they determined was there had been at least
no complaint -- the Board determined there had been no complaint to the Board between the time that GHI had done the work and the time that the renovations had been made by Mr. Schuman to his unit, and so my conclusion and I assume since the Board's conclusion was the renovations had had an effect; had had an effect on the effectiveness of the seals that had been put in place by GHI. Q. But the Board never actually made a finding of
any kind that there was any intrusion that Mr. Schuman created by his renovations? A. Q. A. It was an assumption. It was an assumption.
What was that assumption based on? It was based on not hearing any complaints for
the intervening years between the work that GHI had done on the unit and the renovations that Mr. Schuman had done. That was part -- that was part. It was not the total
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consideration, but it was certainly part of the deliberation. Q. But there was no evidence presented by the
Popovics, was there? A. Q. About what? About the breaking of the seal by the Schuman
renovations? A. Q. By the Popovics? Did the Popovics present any evidence that the
Schuman renovations caused or contributed to the seepage of smoke into the unit? MR. FISHER: Objection, Your Honor. How could
the Popovics know what happened on the Schuman side? BY MR. SZYMKOWICZ: Q. Did he present evidence? THE COURT: THE WITNESS: remember. Evidence presented? I don't remember. I don't
I'm not sure that we would have asked It was -- he was not making the complaint
Mr. Popovic.
for that kind of evidence. BY MR. SZYMKOWICZ: Q. A. Q. GHI didn't present any evidence either, did it? Evidence of what? That Schuman's renovations somehow broke the
seals that separated this unit?
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A.
The evidence was that no complaint had been made
in the years between GHI's work and the renovations that Mr. Schuman made. That was the evidence that I took
anyway; that there was probably -- probably some damage done to the seals. Q. So it surmised, without proof, that Schuman
broke the seals, correct? MR. FISHER: THE COURT: Objection, Your Honor. I don't think that's what she said,
and the question has been answered, and her answer was that there was an assumption that the renovation may have had an effect. Q. A. Was that assumption based on any facts? The fact that there had been no complaints in
several years, 11 years I think, since the work done by GHI and the renovations done by Mr. Schuman. Q. Did anyone from the Member Complaints Panel
personally visit the Schuman or Popovic units to determine for the panel members the belief that there was a problem in this case of any kind? A. visit. Q. A. Why not? I think -- I think that I asked about this, and I did not visit. To my knowledge, I did not
Mr. Schuman said that that would be fine, but that the --
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that it wasn't very bad anymore or at that time, that the smell or -- was not very bad, very bad, and so I didn't follow up on it. Q. Wouldn't it have been helpful for members of the
panel to go and visit the Schuman and Popovic houses to see for themselves before rendering any opinions in this case if there was a problem in their own individual opinions? A. Well, if there had been some way of mit -- of
saying, okay, if the Popovics smoke outside at certain times, but that was not even an option for us; so, what there was, seemed to be no reason; then after it was clear that the only thing that Mr. Schuman was looking for was for the Popovics to stop smoking, there seemed to be no reason. There was no way that that would have changed my
mind, especially if, as Mr. Schuman said, it wasn't very bad then. Q. Mr. Schuman never asked the Popovics to stop
smoking generally, did he? A. It was my understanding -- I don't know whether
he asked them, the Popovics, but he certainly implied, if not explicitly, that nothing else could help unless they stopped smoking in the house or in the yard. Q. But that didn't force the Popovics to not smoke
in their cars, at the shopping mall or at their places of
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business, did it? MR. FISHER: THE WITNESS: Objection, Your Honor. There was no way we were going to
tell the Popovics they couldn't smoke in their home if we were not willing to tell all members of the co-op they couldn't smoke in their home. had to treat people equally. standard. BY MR. SZYMKOWICZ: Q. Isn't what Mr. Schuman was asking for, treating We couldn't do that. We had to have the same We
people individually meaning if the Popovics smoking was coming into his property, the Board could tell people, hey, you can't -- you could tell the Popovics, rather, you have to stop smoking because it's intruding on Mr. Schuman's property? A. We cannot tell the Popovics not to smoke if we
are not willing to tell the whole membership not to smoke. We can't do that. The membership could. The members We are
could make that decision. not a nonsmoking community. Q.
The Board could not.
I direct your attention to Exhibit No. 21.
It's
the Mutual Ownership Contract for the Popovics. it's the same for Mr. Schuman.
I believe
Specifically page three
paragraph D, I direct your attention to the sentence, "It shall be the duty of the member to respect the comfort and
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peace of mind of neighbors as well as of all members and tenants of GHI, not to engage in conduct that is objectionable conduct and to ensure that all persons occupying or visiting in the premises so act. Member
agrees not to do or allow to be done, or keep or allow to be kept upon the premises anything that will increase the rate of insurance on the premises or" -MR. SZYMKOWICZ: one. THE WITNESS: No, I think it's there also -No. I believe it's cut off on this
MR. SZYMKOWICZ: THE WITNESS: No.
(Off the record discussion ensued.) MR. SZYMKOWICZ: -- "or do or allow to be done
any act or thing that shall or may be a nuisance, annoyance, inconvenience or damage to GHI or its members or tenants or to the occupants of adjoining dwellings or of the neighborhood." A. Q. A. Uh-huh. What does that phrase mean to you? Well, I don't have the whole thing in front of
me now, but -MR. SZYMKOWICZ: Your Honor, we respectfully
request the Court to allow us to -- it appears that the exhibits -- this sentence was cut off -- to forward a
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correct copy that's -MR. GOECKE: THE COURT: No objection, Your Honor. Okay. We'll do that in the next few
MR. SZYMKOWICZ: days, Your Honor. THE WITNESS:
"Objectionable conduct," I'm
taking that phrase -- if you have something else you can ask later -- is very subjective. What is objectionable to
one person is not objectionable to another; so, the Board, in making a decision on whether a complaint is based on "objectionable conduct" has to use commonsense; has to look at conduct which is extreme or completely out of the ordinary, and in this case, it did not find that the Popovics smoking in their home was extreme because other members do it. It's not out of the ordinary because many
GHI members smoke; so, that we, you know -- yes, Mr. Schuman objects. He sees it; it's objectionable, but
in -- the Board's looking at is this conduct objectionable; they can't do it in a vacuum; has to look in it in the context of the whole community Q. What about the phrase, Member agrees not to do
or allow to be done any act or thing that shall or may be a nuisance, annoyance, inconvenience or, quote, present damage to GHI or its members or tenants, period. A. Again, it's very subjective. I think I
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mentioned in the the deposition I have a neighbor who had a band that came every week and practiced in his home. loved it. I thought they were great. Another neighbor I
objected; so, they didn't take it to the Member Complaints Panel. The members moved and practiced somewhere else, It was objectionable
but it was not objectionable to me.
to another person; so, it's those terms are -- they are not specific. level. Q. So it depends on each individual situation and They are not definite. There's no definite
circumstance, correct? A. The Board has to decide whether this wording in
the Mutual Ownership Contract, whether that that does; would reasonably be considered objectionable conduct. Q. it? A. Yes, it did. I decided that the Board could not But the Board didn't do that in this case, did
say that this is extreme; could not go and tell the Popovics not to smoke. Q. Where does it say that in any of the letters
sent by the Board? A. It did not say that specifically, but by not
taking action; by telling Mr. Schuman that given the fact that he did not think that any further sealing would be effective, the only thing that could happen was the
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Popovics stop smoking or one or other of the members moved. Q. So given the fact that Mr. Popovic was not going
to stop smoking and given the fact that the Popovics weren't going to move, isn't it fair to infer that -A. Q. No, no. -- that the Board presented Mr. Schuman -THE COURT: Wait for his question.
BY MR. SZYNKOWICZ: Q. -- isn't it fair -- I'm going to start this
question over. You just stated that there were three solutions, correct? A. No, we didn't say there were solutions. We were
saying the Board could not provide a solution. to the members to provide the solution. to tell them what they had to do. Q.
It was up
We were not going
But you would agree, at that time, the Board
presented the parties at issue, Schuman and Popovic, that there were three options? A. Q. No. What could the Popovics and Schuman have done to
resolve this issue? A. That was up to the Popovics and Schuman. We
were saying that we could not decide for them because we
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could not say -- tell the Popovics not to smoke, and that seemed to be the only thing; so, it was up to the two members. Q. But they weren't going to resolve their issues
on their own, were they? A. Then they go to the membership. The Board was
not going to -- the Board could not apply a standard to one member that it was not willing to apply to all the members. Q. Would it surprise you that other condominium
associations in the Washington, D.C. Area have had nuisance clauses in their contracts and bylaws; have interpreted these contracts and bylaws to apply to a smoking situation? MR. GOECKE: THE COURT: Objection, Your Honor. Sustained. Your Honor, I think it's
MR. SZYMKOWICZ:
important to set the standard -THE COURT: Sustained. If you can show me a
Mutual Ownership agreement similar to what GHI has with its members, then I'll take a look. I'm unaware of any
other community in the Metropolitan Area who resembles the GHI contract. MR. SZYMKOWICZ: Well, there are certainly -- in
fact, may I approach, Your Honor?
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MR. GOECKE: provided in discovery. first time.
None of these documents were We are hearing about this for the
MR. SZYMKOWICZ:
Well, I don't need to produce
one of them because it was written by your partner. May I approach, Your Honor, with these? MR. FISHER: Your Honor, I'm happy to address
The case that Mr. Szymkowicz continues to try to
refer to in this case, that involves his client in another matter, is not a cooperative. condominium association. Contract. It's a condominium,
There is not a Mutual Ownership
There are different facts and circumstances and
different applications of laws that apply in a condominium association than a co-op. In fact, although he's trying to allude to it here, the facts of that case are completely different. fact, there has been no finding, as of yet, with respect to how that condominium association is dealing with the issue, and so Your Honor is correct there is no similar contract to the cooperative. The Wintergate at Lawnmeade In
(phonetic) Condominium Association, which he's referring to, is a condominium; not a co-op; not a Mutual Ownership contract. There's no lease. They own the units. They
have sued in that other case the smoker; not the condominium; so, it is not similar, at all, to the case.
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THE COURT:
Sustained. Your Honor, may I approach and
MR. SZYMKOWICZ:
allow the Court to review this? THE COURT: Have it marked.
Is it hearsay? MR. FISHER: THE COURT: It is, Your Honor. You can have it marked. I would like to mark the Lerch,
MR. SZYMKOWICZ:
Early & Brewer letter, dated April 8, 2001, and Exhibit No. 43. I'm sorry. 2011. Plaintiff's Exhibit No. 43 is
THE DEPUTY CLERK: marked for identification.
(Whereupon, Plaintiff's Exhibit No. 43 was marked for identification.) MR. SZYMKOWICZ: And Plaintiff's Exhibit No. 44,
it's from the Essex Condominium, February 18th, 2009. THE DEPUTY CLERK: is marked for identification. (Whereupon, Plaintiff's Exhibit No. 44 was marked for identification.) MR. FISHER: Your Honor, with respect to the Plaintiff's Exhibit number 44
second one, is Forty what? THE COURT: MR. FISHER: Forty-four. Forty-four, Your Honor, I would
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object; don't know anything about the Essex Condominium; haven't seen the document; never been provided to me. I would ask before he even shows the witness that, I take a look at it. If he intends to introduce it
in this case, I need to take a look for it hasn't been introduced since discovery. THE COURT: MR. FISHER: Hasn't been offered as of yet. As a courtesy, I would ask for a
copy if Mr. Szymkowicz has one? Your Honor, I'll make my objection when he attempts to use it, but I'm going to object to that document as well. THE COURT: All right. Would it surprise you there
MR. SZYMKOWICZ:
were two other condominiums in the Washington, D.C. Area that had a nuisance clause in their bylaws or governing documents and found that the smoking constituted a violation of these or at least presented, in the case of Mr. Fisher's client, Wintergate, that the smoker's conduct should result in a cease and desist notice. THE COURT: you?" MR. FISHER: Your Honor, if I may? The question is, "Would it surprise
Your Honor, I would question the relevancy along with the foundation of these documents.
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THE COURT:
I'll let her answer it, the question
"Would it surprise you?" THE WITNESS: I don't know these condominiums. I don't know
We are a co-op, which is not a condominium.
the rules for condominiums; so, I have no idea whether it would be a surprise or not that they do that. BY MR. SZYMKOWICZ: Would it be a surprise to you that in the
multi-unit dwelling, that one neighbor had a complaint against another neighbor. They took it to the managing
Board, and the managing Board of the condominium, in those two cases, found that the smoking could be a violation of the nuisance clause? MR. GOECKE: MR. FISHER: THE COURT: Objection. Objection, Your Honor. Sustained. We don't know anything
about this condo; don't know if it's a townhouse or apartment. co-op. We don't know if it's a condo. It's not a
She is unfamiliar with both of them. Unless we can draw a closer analogy, I'll
sustain the objection. BY MR. SZYMKOWICZ: Do you admit that Mr. Schuman's health concerns
were discussed at the Member Complaints Panel hearing? A. Mr. Schuman brought his health concerns to the
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Member Complaints -Q. Did the Member Complaints Panel take any action
with regard to his health concerning -A. Q. action? A. What we took into consideration was We are not doctors. I'm not not asking you -- did they take any
Mr. Schuman's concerns because we want to look at the concerns of all our members; so, we were trying to see what we could do that would alleviate his concerns; however, the action, the only action he would accept was one we were not able to take or recommend to the Board, which was termination -- not termination, but that the Popovics stop -- with GHI requiring the Popovics to stop smoking. We could not do that. the Board that they do that. Q. Did the Member Complaints Panel ever attempt to We would not recommend to
ascertain from Mr. Popovic or Mrs. Popovic that if the Board or Member Complaints Panel told them to stop smoking in their house and yard, that they would abide by that rule? A. Mr. and Mrs. Popovic said they were trying to
cut back, but they couldn't promise to; so, if from the Member Complaints Panel we make recommendations based on
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what the members have said they were willing to do, and when a rule is not being -- is not being broken, that's about all we can do. Q. But that's not what I asked. I asked you if the
Member Complaints Panel or Board ever asked the Popovics, Mr. and Mrs. Popovic, if we tell you you have to stop smoking, will you abide by this? A. Board had. We didn't because that is not an option that the The Board did not think it had the option to
ask them to stop smoking; so, why would we have asked that question of them. Q. Wasn't the underlying reason that the co-op
didn't take any action in this case is because it was afraid of being sued by a smoker? MR. GOECKE: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. No.
BY MR. SZYMKOWICZ: Q. No one on the Board ever discussed a lawsuit by
a smoker if the Board took action in this case? MR. GOECKE: Objection, Your Honor. She can't
testify about what every one on the Board has ever testified about or talked about. THE COURT: THE WITNESS: To your knowledge? Go ahead?
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That was -- I think the premise, your premise was the overriding concern of the Board. No, it was not.
That was not the overriding concern of the Board. Q. Board? MR. FISHER: Your Honor, if I may just object Was it something that was discussed by the
for the record; note that to the extent that Ms. Lewis' answers would involve any attorney-client privilege communication the Board may have had with its Counsel at that time, that I instruct her not to discuss any advice that they may have received from Counsel at the time. THE COURT: Fair enough. You don't have to talk
about any discussions with your lawyers. THE WITNESS: You were asking whether it was an It wasn't. The
overriding concern of the Board.
overriding concern of the Board is can we instruct a member to do something that was not the rule for all members and -BY MR. SZYMKOWICZ: That's not what I asked. No. You asked if it was the overriding concern,
and it wasn't. Q. Then I asked a different question. Was a
lawsuit by a smoker against GHI, if GHI took the action that Mr. Schuman requested, ever discussed by any Board
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member in your presence? A. Q. I can't remember. I can't remember.
I'm showing you what has been marked as Exhibits Have you ever seen these documents before?
No. 35 and 36. A. Q. Yes.
I direct your attention to Exhibit No. 35. "This is a difficult
What
do you mean by this sentence:
situation, and it appears that there is no solution unless your neighbors are willing to stop smoking or one party or the other wishes to relocate"? MR. GOECKE: Objection, Your Honor. The witness
did not author this letter. THE COURT: The question is -If she knows.
MR. SZYMKOWICZ:
BY MR. SZYMKOWICZ: Q. What did the Greenbelt Homes mean when it It appears that
stated, "This is a difficult situation.
there is no solution unless your neighbors are willing to stop smoking or one party or the other wishes to relocate"? A. Yeah, and I direct your attention to the very
first sentence of that paragraph which says, "You provided the panel with documentation which stated that further sealing or use of mechanical methods to control this smoke would not prevent it from entering your unit." This is
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the basis for the conclusion that was reached in that last sentence of the paragraph. It was based on the premise
that Mr. Schuman had made that no other action would work for his unit except the Popovics stopping smoking; so, that was why, okay, if they don't stop smoking and that's not going to -- so you are still going to have a problem, then obviously the problem is going to exist while you are both living next to each other. Q. So what did the Board envision Mr. Schuman doing
after it received this letter? A. I have no idea. It was up to them. We haven't
envisioned anything. can on this. the unit.
We were saying we have done all we You had renovated
We sealed up the unit.
You are saying that any of the sealing is not All you are requiring, in effect, is us to
going to help.
tell your neighbor not to smoke, and we cannot do that. It's out of our hands now. It's between you and your
neighbor to come to some conclusion of this problem. Q. What options does the Board believe that
Mr. Schuman had upon receiving this action with regard to dealing with the Popovics smoking? MR. GOECKE: Honor. Objection, asked and answered, Your
We keep coming back to this. THE COURT: Sustained.
BY MR. SZYMKOWICZ:
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Q.
Nothing in this letter discusses the outside No amount of sealing
smoking; about the sealing, does it?
in the world would prevent the secondhand smoke from coming from the patio through Mr. Schuman's open windows? MR. GOECKE: THE COURT: Objection, foundation. Well, he's saying from the patio I don't know sealing and an open
through the open window.
window aren't mutually exclusive. What's the question? BY MR. SZYMKOWICZ: Q. If Mr. Popovic was smoking on his patio and
Mr. Schuman's windows were open, isn't it logical to conclude that, at least at certain times of the day or certain times of the year, secondhand smoke from the Popovic cigarette could enter Mr. Schuman's house via an open window? A. Q. So, yes. So nothing in this letter of October 8th Just addresses
addresses outdoor smoking, does it? Mr. Schuman's renovations, correct? A.
I don't think -- what it addresses is what the
Board can do, and that the Board cannot do anything more in this issue. Now, as far as the outside smoking, that would be one of the things that they could discuss and come to
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some conclusion between themselves. the Popovics not to smoke outside.
The Board can't tell The Board can't tell
Mr. Schuman to close his windows when they -- it's up to them to come to some conclusion. Q. Isn't it the purpose of the Member Complaints
Panel to allow the members to present complaints about each other to the Member Complaints Panel and for the Member Complaints Panel to come down either way on the issue, but to make a decision in any event? A. That's what we tried to do. In this case, there
was no way we had a recommendation for the Board because our hands were tied, our hands and the Board. We could
not recommend to the Board -- the Board looked at the situation and what options it had and decided that since it's obvious that Mr. Schuman is not interested in further sealing of the unit, it's up to the two members to come to some agreement. Q. And I would like to direct your attention;
hopefully, to conclude, to Exhibit No. 36? A. Right. MR. GOECKE: Plaintiff's 36? Correct.
MR. SZYMKOWICZ:
BY MR. SZYMKOWICZ: Q. Quote, "It appears that smoke from your unit is GHI is
contributing to his distress and health concerns.
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not a smoke-free community; however, the right to smoke is not protected by law and is considered a nuisance by some Courts. Just like any activity which prevents one from
experiencing a peaceful enjoyment of his or her home, unwanted smoke is considered a hazard in this situation." What did the Board mean by that statement, if you know? A. I thought it was self-explanatory. It's not a
smoke-free community. a nuisance.
Sometimes courts have considered it
And, obviously, Mr. Schuman has expressed
concerns about his or her -- his health with regard to the effect, but as I said before, we are not a smoke-free community, and it's stated so, stated in the letter. Q. What courts have determined that secondhand
smoke is a nuisance? MR. GOECKE: THE COURT: THE WITNESS: Objection. If you know? I have no idea.
BY MR. SZYMKOWICZ: Q. Do you know why GHI placed this sentence about
secondhand smoke "is considered a nuisance by some courts"? A. Presumably, some Courts have considered it a
nuisance, and we were hoping that the Popovics would take that into account in making their decision as to what they
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were planning to do. Q. I direct your attention to the following line:
"just like any activity which prevents one from experiencing peaceful enjoyment of his or her home, unwanted smoke is considered a hazard in this situation." Did the Board find that the unwanted smoke is considered a hazard in this particular situation? A. In terms of the relationship between these two
members, yes. MR. SZYMKOWICZ: Your Honor. THE COURT: MR. POPOVIC: THE COURT: MR. GOECKE: Mr. Popovic, any questions for her? No. Any Redirect? Yes, Your Honor. I have no further questions,
REDIRECT EXAMINATION BY MR. GOECKE: Q. I believe in the exhibit, Plaintiff's Exhibit
No. 42, I believe, which is -- I'm sorry -- a partial transcription of the Member Complaints Panel minutes. you have a copy of that in front of you? A. No, I don't. MR. GOECKE: If I may approach, Your Honor? Do
BY MR. GOECKE: Q. I'm directing your attention to page two of the
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Plaintiff's Exhibit 41.
Mr. Schuman says, "When I first
noticed it," I guess referring to the secondhand smoke smell, "it was throughout the entire house. This year in
the bedroom it is on the first floor, and the clothes closet over the staircase and kitchen cabinets." Then you respond, "Would it be possible for two of us to go and view the unit? Would that be possible?" It is not
And Mr. Schuman responds, "Of course.
bad tonight, but again, if they are still smoking, the smoke is still coming in." Did I read that correctly? A. Q. Yes. So you asked Mr. Schuman if it would be okay to
go to his unit, correct? A. Q. A. Q. Yes. And he told you it wasn't that bad that night? Right. And then, ultimately, no members of the
Complaint Panel or the Board did inspect Mr. Schuman's unit? A. members. Q. Do you know if members of the GHI staff ever I know I didn't. I don't know about other
went to inspect his unit? A. I believe so, but I couldn't answer that.
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Q.
Is it possible that you relied on their
inspection? A. Q. Absolutely. Does that refresh your recollection about
whether or not you spoke with them? A. It really doesn't. I can't say specifically,
but that's usually what we do. Q. And you based your decision on what you heard at
the Member Complaints Panel as well as your other experiences at Greenbelt Homes, isn't that correct? A. Q. is it? A. Q. A. Q. No, it isn't. You don't make findings of fact or law? No, no. You are there as a facilitator to try to help Yes. And the Member Complaints Panel is not a court,
the members resolve the dispute? A. Yeah, we try to also help the members understand
the situation, each others situation, and you know. Q. To get the member to consider the other person's
perspective? A. Q. Yes. In fact, isn't that what GHI was trying to do
with these letters to the Popovics?
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A. Q. A. Q. A. Q. A. Q.
Yes. It was saying, under certain circumstances? Yes. Secondhand smoke may be; a nuisance? (Witness nods head up and down). Is that correct? Yes. It also said that some courts have found that
secondhand smoke may constitute a nuisance? A. Q. from? A. Q. A. Q. No, I don't. Did Mr. Schuman provide it to you? I don't know. I don't remember. Yes. Do you remember where that information came
Do you know if Greenbelt Homes consulted an
attorney during this time? A. Q. I'm pretty sure we did. Without telling me what the attorney may have
told you, did you rely on the attorney's advice in coming to your decision? A. That was part of it, but we know that the Board,
any change in the no smoking policy has to be made by the members; not by the Board, and the membership would be the place to go if you wanted to change the law.
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Q. A. Q. A. Q.
And as you have testified -Or rule. I'm sorry? If you wanted to change the rule. If you wanted to change the rule, that's right. As you testified, Greenbelt Homes allowed
smoking in the community, isn't that right? A. Q. Yes. Since you lived there beginning of 1968, you
were smoking initially, isn't that right? A. Q. A. Q. Yes. Lot's of people smoke there? Yes. And so when Mr. Schuman presented his case to
the Member Complaints Panel, I'm assuming you based your decision, in part, on your special experiences at Greenbelt Homes? A. Let me put it to you this way -- I'm sorry. No. Q. Go ahead.
Were you convinced, based on what Mr. Schuman
presented to you at the Member Complaints Panel, that this was the most egregious situation of smoking you had ever seen? A. Q. No. Did you think it was extreme conduct that
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warranted the termination of the Popovics' membership? A. Q. No. Was it a nuisance in your opinion? MR. SZYMKOWICZ: conclusion. THE COURT: But the Board is charged with trying Objection, calls for a legal
to abate a nuisance and invariably have to have some idea of what they consider a nuisance. MR. SZYMKOWICZ: Honor. THE WITNESS: Yeah. It was obvious that We withdraw our objection, Your
Mr. Schuman saw it as a nuisance, but as I think I have already said, nuisances can be interpreted by different people in different ways. MR. GOECKE: Court's indulgence, please?
If I may approach, Your Honor? THE COURT: MR. GOECKE: Uh-huh. Going to show the witness what has
been marked and, I believe, admitted as Plaintiff's Exhibit 20. BY MR. GOECKE: Q. Pointing your attention to page eight of this
document, subsection nine, lower case C, Roman numeral lower case ii. It's called, Failure to Comply with
Contract, Rules or Bylaws, and it reads, "GHI may
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terminate this contract upon 30 days written notice subject to and in accordance with the bylaws and rules if the Board determines that member, for sufficient cause, is undesirable as a resident of GHI because of" the -"because of objectionable conduct on the part of the member or of any person occupying or visiting the premises." Q. A. Q. Did I read that correct? Yes. Then it goes on to say, "Notwithstanding other
conduct that may be determined by the Board to be objectionable conduct" in all caps, "to violate or to fail to comply with any provision of this contract or any rule after written notice of such violation or failure has been given by GHI to member shall be deemed objectionable conduct, per se, and may be the basis for termination of this contract for cause." Did I read that correctly? A. Q. Yes. So, ultimately, again, this comes down to the
discretion of the Board? A. Q. Yes, it does. And the standard is whether the Board determines
that the member is undesirable as a resident of GHI? A. Yes.
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Q.
Mr. Szymkowicz asked you about what the Popovics
had stated in terms of whether or not they would continue smoking or stop smoking, do you remember that? A. Q. Yes. In your role in the Member Complaints Panel, did
you have an opportunity to read the letter that was exchanged between the parties and with each other and with GHI? A. Q. Yes. So you would be familiar with that
correspondence? A. Q. Yes. I'm showing you what has been marked as
Defendant's Exhibit 45, and this is the letter dated January 26, 2009 from Svetlana Popovic to Gretchen Overdurff, and it says, However, we know that Mr. Schuman recently, during the summer of 2008, did major structural reconstruction works in his Unit Q. He pulled some walls
down and did make structural changes to the original plan that may have caused the problem of smoke penetration; therefore, we are thinking whether GHI should intervene on his Unit Q and seal the walls. Did I read that correctly? A. Q. Yes. So when Mr. Szymkowicz asked you whether they
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had presented you with any evidence about what had been unsealed or the reconstructive renovations in his unit? A. Q. A. I did not remember that. So this refreshes your recollection? Yes. MR. GOECKE: Your Honor, I move for admission of
Defendant's Exhibit 45 into evidence? THE COURT: Any objection? Can I see it for a second? May
MR. SZYMKOWICZ: already be in there.
Your Honor, this is already -- this is Exhibit No. 28; I mean, I don't know why -MR. FISHER: Our apologies. We didn't realize
it was already admitted. THE COURT: MR. GOECKE: THE COURT: Plaintiff's 28 has been admitted. Apologize for that, Your Honor. All right.
BY MR. GOECKE: Q. I'm now going to approach the witness with what
has been marked as Plaintiff's Exhibit 42. MR. FISHER: MR. GOECKE: If I may approach? THE COURT: Yes. Already been admitted, Your Honor. Which already has been admitted.
BY MR. GOECKE:
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Q.
Again, this is the minutes, we'll call them, of
the Member Complaints Panel, number one, which took place on September 28th, 2009, and this is the incident we have been discussing this afternoon, correct? A. Q. Right. From Mrs. Popovic, the highlighted section He tore down the
reads, "He made a change in his unit.
dividing wall and moved the washer dryer to the upstairs.kStructural change occurred in his unit. the problem appeared again. I think
Structural renovation and
original architectural structure dramatically changed." Did I read that correctly? A. Q. Yes. Again, this is another example that the Popovics
presented the panel with evidence that his renovations may have contributed to the smoke? A. Yes, and also Ms. Overdurff had mentioned the
previous renovations, I think, when in her -- when she introduced this in the Spring of 2009 in executive session to the Board. Q. Did the panel take this into consideration when
it analyzed the situation? A. Q. A. Yes. What did you think? We assumed, since no complaints were made in the
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twelve years intervening until after the work had been done in the Summer of 2008, that that had significance for the infiltration of smoke, secondhand smoke. Q. bylaws? A. Yes. MR. GOECKE: Honor? Showing the witness what has been marked as Defendant's Exhibit 1, which is the Greenbelt Homes, Inc. bylaws as amended on May 19th, 2010. BY MR. GOECKE: Q. Now, before, we were talking about what options If I may approach again, Your Are you familiar with the Greenbelt Homes, Inc.
Mr. Schuman had after the Member Complaints Panel, and Mr. Szymkowicz made the point that it would have been eight months before the next annual meeting? A. Q. Uh-huh. Isn't it true that he could call a special Do you know offhand?
meeting at any time? A. Q.
I would like to read. Of course. Of course, reading this would
refresh your recollection? A. Q. Yes, yes. Okay. So we can make a record, I'll read this It's called
Article IV, Membership Meetings, Section 2.
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Special Meetings.
"Special Membership Meeting shall be
held within forty-five days following the filing with the secretary of a request thereof by the President or by the Audit Committee or by the Board of Directors or by a petition signed by, at least, one hundred members, except that a special meeting shall not be be held within 30 days prior to the annual membership meeting. Such request or
petition shall state the motion or motions to be acted upon at the meetings." Did I read that correctly? A. Q. Yes. So Mr. Schuman had the option, if he were up to
99 additional signatures in this case, to hold a special meeting? A. Q. Anytime. I had forgotten that.
In addition to the special meeting he could have
requested; he could have also raised this issue with the Board in the monthly meetings, correct? A. Q. Yes, he could in open session, yes. In section three, talks about the agenda of the I'm going to read that. Follow along with
Board meeting. me.
It says, "Agenda.
Any matter of business shall be
placed on the agenda of membership meeting of the corporation on written request to the secretary for such action by ten or more members at least 35 days in advance
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of such meeting." Did I read that correct? A. Q. Yes, uh-huh. So at the next monthly meeting, Mr. Schuman,
assuming he could get nine other signatures, could have petitioned the Board to take this up at its monthly meeting? A. Yes, it could. MR. GOECKE: Your Honor, I would like to move
for the admission of Defense Exhibit 1. MR. SZYMKOWICZ: Your Honor, I don't have a
problem in general except for the fact that's a very long document. Since Mr. Goecke only referred to one page, I
ask, after having done the record extract in the appeal case, that we only admit that page or maybe even the title page and that page? MR. GOECKE: document is critical. Your Honor, I think the entire This is the bylaws. This is what
they are claiming the breach of contract is on. MR. SZYMKOWICZ: are relevant. THE COURT: Here is -- I'll admit the document. But if none of the other pages
No objection to the document? MR. SZYMKOWICZ: right). (Shakes head from left to
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THE COURT:
If and when it becomes necessary to
provide a record extract, the Rule, if I recall correctly, permits the parties to detach unnecessary or surplusage; that I'm almost certain that's the Rule. off the top of my head. MR. FISHER: THE COURT: MR. FISHER: THE COURT: Your Honor is correct. What? Your Honor is correct. I know it's correct. I can't cite Can't cite it
I know it's in there somewhere. MR. SZYMKOWICZ: MR. GOECKE: Thank you, Your Honor.
Thanks, Your Honor.
Defendant's Exhibit No. 1 has been admitted? THE COURT: Yes.
(Whereupon, Defendant's Exhibit No. 1, previously marked for identification, was admitted into evidence.) MR. GOECKE: BY MR. GOECKE: I just want to go back to one thing that came I believe you testified, just Thank you.
out on Cross-Examination.
now, that the Board did not find whether or not there was a nuisance for the smoking, is that correct? Let me rephrase. Whether the Popovics smoking in this situation,
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whether or not it constituted a nuisance, did the Board make a decision one way or the other on that? A. I can't remember whether we did on that specific
purpose, but -Q. A. So you don't know? We did not see that the behavior of the Popovics
met the extreme standard that we would be looking at. Q. standard? A. Yes. We did not think that the Popovics' And you found that it did not meet that extreme
behavior met the extreme standard that we would take into consideration. MR. GOECKE: Thank you, Ms. Lewis. Just briefly, Your Honor.
MR. SZYMKOWICZ:
RECROSS-EXAMINATION BY MR. SZYMKOWICZ: Q. Do you have any recollection as to whether
Mr. Schuman was seeking a change in overall policy with regard to smoking in places other than the Popovic house? A. To my recollection, he said he was not; however,
that meant we would have to make a determination for the Popovics which we were not willing to make for the whole populace. Q. Why would a determination that the Popovics
smoking, in this unique circumstance, would have any
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impact on anybody else smoking, with their neighbor next door? A. I don't know why it would be a unique Now, is
circumstance because several people in GHI smoke.
the unique circumstance that Mr. Schuman is complaining? Q. A. Yes, that's a very unique circumstance. Well, but it does not -- we did not see that
Mr. Popovic and -- Mr. and Mrs. Popovic's behavior was extreme. We could not make that determination. We did
not make that determination. Q. But is there anything in the GHI governing
documents that talks about extreme? A. When we look at the -- at how to interpret the
nuisance clause of the MOC, we have to see that the nuisance is out of the ordinary. It cannot be something This
everybody finds a nuisance in neighbors sometimes.
has to be something that would warrant going beyond the member complaint level of our complaint procedure. Q. Is it true, to your knowledge, nobody else was
complaining about their neighbor smoking except for Mr. Schuman? A. Nothing had come to the Board; however, we can't
make a determination for one member that we are not willing to then hold the cooperative accountable for. cannot do that. We have to treat people equally. We
That's
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what a cooperative is about. Q. But if one person in the cooperative is playing
their music loud, and the next-door neighbor complains, doesn't the Board have the right to tell the offending member to turn their music down? A. We don't have the right to say, Turn the music If
down or we are going to terminate your membership.
with -- with music and loudness, what decibel level would be important, and also the time of day or night of the playing would be important because there are laws. There
are city laws and there are county laws that we would then invoke. Q. Isn't it true that a noise could be repetitive
and not violate a county or city law but still violate the nuisance clause in GHI? A. That's right; then we would meet -- if a member
brought it to the Member Complaints Panel, we would work with both members what would be acceptable, okay. This is
annoying your neighbor, so could you tone it down, but we won't; couldn't require them to do it, you see, unless we are going to do it across the Board, and most of the time, most of the time, neighbors want to get along, and so they would accommodate one another, and that's when we can work with them. We can write letters saying okay, Mr. A says
he will not play the music above a certain amount, and he
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won't play on Sundays or whatever the particular concern was. And Mr. B is accepting of this change, and if you
make these changes, there will be no other; then everything will be fine. Q. conduct -A. Q. That's right. -- before a member can be found to be in But you agree there doesn't have to be illegal
violation of the nuisance clause, correct? A. I don't think I said that, but anyway, it does
not have to be a law, a breaking of a law for the -- for the Board to state that behavior has to be changed; however, that has usually already been worked out between the members. Yes, they agree to do this, and then it's
put in writing, and then they would be held accountable for that. Q. If the members can't cooperate and they can't
come to an agreement, it wouldn't take an illegal action for the Board to find that member's behavior is a nuisance if the facts and circumstances warranted such a finding, would it? MR. GOECKE: THE COURT: Objection, asked and answered. Lot of times kind of dance around.
Would it take an illegal action before the Board could find some extreme conduct that would warrant --
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A.
That makes it easier.
If it's legality, that
definitely makes it easier; however, there are occasions where it can be found to be damaging to the co-op as a whole, where we have made that determination. MR. SZYMKOWICZ: Your Honor. THE COURT: MR. POPOVIC: MR. GOECKE: Mr. Popovic, any questions? I don't have any questions. Just briefly, Your Honor. I have no further questions,
REDIRECT EXAMINATION BY MR. GOECKE: Q. Mr. Szymkowicz' hypothetical, if the noise was
too excessive; so extreme, then the panel could find it was a nuisance, isn't that correct? A. Because it would probably be, you know, above
the decibel level that is allowable, but, yeah, and if -you know, it depends on the situation. Q. A. If it was that extreme? Exactly. Has to be out of the ordinary and not
something -MR. GOECKE: THE COURT: Thank you. Anything based on that? No, Your Honor.
Anything else? You may step down.
Thank you, ma'am.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor.
Thank you. Got two more witnesses. We are
going to start tomorrow, but it's two more? MR. FISHER: have one more witness. Court's indulgence, though? (Off the record discussion ensued.) BY MR. FISHER: Just just one more witness, Your No, Your Honor, if we do, we just
THE COURT: MR. GOECKE:
We'll start at 9:00 o'clock. Okay. Thank you.
MR. SZYMKOWICZ: record, two things.
Your Honor, while we are on the
Mr. Fisher has agreed to provide the
pages, the two pages that were cut off, and coincidentally, of all pages to get cut off, it was at the nuisance clause; so, we are going to supplement these right now. THE COURT: That's no problem. And the other thing, to limit I
MR. SZYMKOWICZ:
and to give the Court an overview where we are going.
would object to any additional witnesses that are merely cumulative, and may be that's what we will find tomorrow, but I have a feeling Mr. Boswell is just going to be cumulative, but based on the -- what we had so far today, the only witness we have in rebuttal will be Mr. Repace,
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and I can't imagine that he would be very long. THE COURT: This is all we got tomorrow, so
pretty good shape but -MR. SZYMKOWICZ: THE COURT: We always forget Mr. Popovic. No, we don't.
No, we don't.
THE DEPUTY CLERK: with the nuisance clause? MR. SZYMKOWICZ: or 1 and 2. MR. FISHER:
What was the exhibit number
I think they were 20 -- 20, 21
It's 20 and 21.
Actually the
binder that I have has the complete copies, so I can either provide you a copy. THE DEPUTY CLERK: MR. FISHER: What number do you have?
I have the copy of Plaintiff's
binder as well, but mine is actually printed out as opposed -MR. SZYMKOWICZ: THE DEPUTY CLERK: MR. SZYMKOWICZ: Court. Object, Your Honor. This one. I can clear it up with the
The problem is this was a legal paper and -MR. FISHER: If I may approach, when it got
copied, it got cut off. If you want to make a copy of this? THE DEPUTY CLERK: MR. FISHER: No. Because we have it in here.
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THE DEPUTY CLERK:
No, that's the other one.
(Off the record discussion ensued.) THE COURT: You do have a reduced copy? Yeah, I do. I have it with me.
MR. SZYMKOWICZ: THE DEPUTY CLERK:
Judge, I'm going to make that
MR. SZYMKOWICZ:
Your Honor, we have it.
Your Honor, we already have it reduced to -it's legible for a letter copy. MR. FISHER: fourteen anymore. (Off the record discussion ensued.) THE DEPUTY CLERK: The Court is ordering -- we Nobody likes eight-and-a-half by
are just switching that exhibit; keeping the number? MR. SZYMKOWICZ: THE COURT: Yeah.
We are just substituting it. Of all the pages to get messed
MR. SZYMKOWICZ: up, it was that big one.
(Court adjourned for the day.)
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REPORTER'S CERTIFICATE I, Diana L. Wakefield, an Official Court Reporter for the Circuit Court for Prince George's County, Maryland, do hereby certify that I stenographically recorded the proceedings in the matter of David S. Schuman vs. Greenbelt Homes, Inc., et al, Civil Action Law 10-06047, on August 22, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers one through 230 constitute the official transcript of the testimony of the witnesses as transcribed by me from my stenographic notes to the within typewritten matter in a complete manner to the best of my knowledge and belief. In Witness Whereof, I have affixed my signature on this the 16th day of September, 2011.
_________________________________ DIANA L. WAKEFIELD, RMR Official Court Reporter
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REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Trial Before the Court) VOLUME V OF VII Upper Marlboro, Maryland Tuesday, August 23rd, 2011
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Diana L. Wakefield, RMR Official Court Reporter P.O. Box 401 Upper Marlboro, Maryland DARKO POPOVIC, PRO SE For the Defendant GHI: JASON FISHER, ESQUIRE APPEARANCES: For the Plaintiff: J. P. SZYMKOWICZ, ESQUIRE RITA TURNER, ESQUIRE
20773
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seated.
P R O C E E D I N G S THE DEPUTY CLERK: Greenbelt Homes, Inc. MR. FISHER: Good morning, Your Honor. For the CAL10-06047. Schuman versus
record, Jason Fisher on behalf of the Defendant, Greenbelt Homes, Inc. With me is Gretchen Overdurff, general manager. Michael Goecke sends his regrets, but he's tied up in another matter today. MR. POPOVIC: Michael Goecke. Good morning, Your Honor. I'm not
I'm Darko Popovic. I'm not Michael Goecke. It's
MR. SZYMKOWICZ:
J. P. Szymkowicz, and that's Rita Turner, and David Schuman is here; so, we are all ready. THE COURT: MR. FISHER: Ready for our next witness? We are, Your Honor.
I call Tokey Boswell, Your Honor. (Witness sworn). THE DEPUTY CLERK: Thank you. You may be
Please state your first and last name and spell them for the record. THE WITNESS: My name is Tokey Boswell,
T-O-K-E-Y, B-O-S-W-E-L-L.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. please. A. Q. A. Q. A. Q. Homes? A. 4A Laurel.
TOKEY BOSWELL, a witness produced on call of the Defense, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. FISHER: Mr. Boswell, can you tell me where you live,
Live in Greenbelt.
Where is that located? That's right in the center of GHI. How long have you lived there? My wife and I bought that unit in April of 2009. Where did you live prior to moving to Greenbelt
We lived in D.C. about four years in Tacoma on
the D.C. side off Tacoma Park. Q. A. What type of residence was that? It's an apartment building, fairly new building
that was right beside the Tacoma Metro Station. Q. A. Q. Part of a co-op or condominium? No, just an apartment. You were in Court yesterday, and you heard
Sylvia Lewis testify with respect to a Member Complaints Panel process and her position on the Board, correct? A. I did.
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Q.
Are you; have you ever been affiliated with the
Board of Directors or any of its committees when you moved into GHI? A. Pretty soon after I moved in, I decided to run
for the Board of Directors; was elected in May of 2009; was reelected in May 2011. This year, as of May, I'm the
President of Greenbelt Homes, Inc. Q. of GHI? A. There were lots of things about GHI interesting And what interested you in running for the Board
to my wife and I that made us decide to move there in the first place. We felt D.C. was kind of a transiet town.
Most of the people we knew weren't there long term. Didn't seem like people really had a stake at making things better where we were living; so a couple of my coworkers lived in GHI. Ipolito invited us out several We went to the
times to see their Christmas proceeding. music show at the New Deal Cafe.
We toured around the
lake and just saw that it was important, like a community that we experienced growing up; both from small towns; so, that kind of small-town atmosphere and close knit, a place where people felt like they had roots was enticing to us. And the extension of that, getting on the Board of Directors, seemed to be a natural thing. I have been
involved in Board of Directors before for nonprofit
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organizations and service groups.
There was also kind of
a natural break where moving from D.C. to Greenbelt, I had to give up some of my old acitivities just because the distance; so I was coming to Greenbelt with a whole lot of free time, no other commitments, and that seemed like a good time to get on the Board. Q. Sir, all your time isn't free. What type of
work do you do when you are not volunteering for GHI? A. Work for the National Park Service in their
headquarters office in the Planning Division. Q. A. What do you do for them? There are about four hundred national parks
across the country, and each one of them is required to have a management plan. Management plan is supposed to be
like a 20 year vision; how they want to improve in the future; if they want to have more development of different facilities; if they want to allow or disallow some type of uses, like rock climbing, mountain biking. If they want
to focus on educational programs, we assist the parks by doing the program maintenance functions. funding. We insure
We provide assistance to teams when they run We write guidance, and we assure compliance
into issues.
with other federal regulations for those plans. Q. As part of your position, do you review those
regulations on a regular basis?
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A. Q. as well? A. Q.
On a regular basis. You are familiar with GHI's governing documents
I am. And prior to moving to the D.C. Area, did you
have any prior experience with city government or operations like GHI? A. It's hard to say, anything like GHI. City
government, definitely.
For awhile, I was on the Board of
Directors for the Habitat for Humanity, and I was -- when I was a student there. And they have some similar
features, in that members must apply to become members of GHI and members must -- and for Habitat for Humanity, prospective homeowners must apply for that process as well. So that's one example of a group that provided I also worked for
housing and had a membership process.
the City of Iowa City Planning Division. Q. A. What type of work did that entail? That was really land use regulation. My
position as assistant or intern city planner was focused on zoning regulations, variances for developers who wish to have new properties developed and also looking at redevelopment of particular areas of town, and I liked that work in particular because Iowa City is a pretty small place, and you could put a new policy into effect,
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and a couple of years down the road, you could look at the developments that sprang up as a result and actually see if that was a good development for the city or not. You
could get pretty quick feedback on if you are going the right direction. Q. Bringing us back to your experience with GHI You have heard some of the
again, you have been in Court.
testimony from Ms. Lewis yesterday; so, I'll try not to be redundant to what was already covered. She talked about
the Member review panel process that was employed with the situation with Mr. Schuman and the Popovics. Tell me a little bit about what you recall about how that issue came to you. panel as well? A. I was not on the Member Complaints Panel. I was Were you on the member review
on the Board at that time, and the way Sylvia characterized, that's correct. We have subsets, the Board
of Directors, that sit as the member complaint process, and they report back to the main Board with any findings and recommendations. Q. Mr. Boswell, let me put this in context since we What time
have been in this case talking different times. frame are we talking about here? A. Q. Spring to Fall 2009.
Based upon your earlier testimony, you were not
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involved in the 1997 issues with the units, correct? A. Q. That's correct. Okay. As part of the review that you undertook
in 2009, what do you recall in terms of how it came to you and to your knowledge for the first occasion? A. Right. I believe that they may have already had
assigned the member complaint process by the time I got on to the Board. They had received the original complaint
from Mr. Schuman before I arrived or shortly thereafter; so, my first true involvement was when the Member Complaints Panel reported back to the Board of Directors in, you know, in September or October of 2009. Q. And what type of hearing was convened for that?
Was that an executive session? A. That's right. The Board of Directors meet in
executive session before every Board meeting; sometimes on special occasions if we need to; so, the complaints panel would have reported back at that time their findings, recommendations. Q. Do you recall a specific discussion that took
place with respect to this issue? A. actually. I recall quite a bit about the discussion We spent quite a bit of time on it. It was
clear that the Member Complaints Panel wasn't comfortable recommending any further action.
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Now, the Board talked about that quite awhile, and it was clear to all of us on the Board that there were certain actions that we could take next. Q. What types of actions were those? And let's back up a moment. So the issue comes to you as presented by Sylvia Lewis who was on the Member Complaints Panel, correct? A. Q. That's right. Okay. So she provides the information to you at Are you provided any
that executive session meeting.
information or documentation actually before the executive session's decision to review? A. Definitely. All the Board members would have
been provided a timeline; battered (phonetic) out a timeline, all the Board, a timeline of the issues that the general manager would have prepared, and the timeline would discuss, in general, probably the 1997 complaint, how that was resolved, any intervening issues when the complaint was filed in 2009, any correspondence that was received from either members, Popovics or the Schuman's. Q. And are you provided the information and
notations from the staff, such as Ms. Overdurff, with respect to what staff may have done as well in addition to that correspondence? A. Certainly. We would ask Gretchen what the staff
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involvement would have been because so many times these issues are resolved by staff before we ever hear about them; so, it's always critical for us to hear what things are going on that we didn't hear about. Q. Again, you began to say, Ms. Lewis brought to
you a -- Member Complaints Panel was not prepared to take further action. Tell me what the Board discussion included with respect to how the Board was getting information at that time? A. I think it was clear that the Board realized we We could do absolutely
could do one of several things. nothing.
It's possible that we would do nothing, and
after a Member Complaints Panel if there was a one-time incident, it was fairly innocuous. Say someone, for
example, burns food very badly in their oven, and the next-door neighbor complains. Well, that's something that
where, okay, if you filed a complaint, there may be a nuisance here; may be an annoyance; probably a one-time thing; so, the Board is basically going to ignore this and tell you this is a one-time thing. Second option would be to ask -- to ask the members, either one or more of the members, to go back and do a little bit more work on this topic. to resolve the situation on your own? What can you do
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And the third option would be that the Board to convene an informal hearing with the intent to determine whether or not to terminate a membership. We spent quite a bit of time talking about all those options, and I think it was clear that all of them were open to us. Q. And tell us what the Board did in considering
its options ultimately? A. Uh-huh. We did not spend a lot of time talking That really
about whether a nuisance was present or not. wasn't the focus of that discussion.
We were thinking
about what are the next items for GHI and the Popovics and the Schuman's. Q. When you say that you weren't focused on the
nuisance, certainly that was the issue that was before you? A. It was one of the issues that was before us, but
it wasn't the most pressing. Q. A. What was the most pressing? The most pressing, really, is what's appropriate If we read the memorandum -- pardon
and what's next?
me -- MOC for all Greenbelt Homes residents, the language in the MOC is very, I would say, high minded, almost almost visionary in that it says, Members agree not to do anything which may be considered a nuisance or an
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annoyance. Almost every single member in the co-op is going to violate that provision at some point in time during their tenure. Q. Because everybody is going to complain about
something at some point in time? A. It's not about the complaint. It's about the
bar which is set by the MOC.
If you have a new puppy or a
colicky baby or if you get bronchitis, those sounds are going to be heard by your next-door neighbor. Next door
neighbor is annoyed by that, technically, you have violated MOC, even though you haven't done anything wrong. Likewise, if you are cooking meat, outdoor barbecue, that smell may annoy your neighbor; technically, you have done something that may be an annoyance to your neighbor; therefore, MOV violated, so. Q. Q. How does the Board consider that? Well, the Board, it's clear from the bylaws,
that the Board is empowered to terminate a membership for violation of MOC rights; permissive language says, "we may terminate." Certainly doesn't say we must or we should or
we have to; so, the bylaws, clearly that's put in the realm of the Board's discretion. And when the Board is looking to exercise discretion here, there are a couple of factors that we
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consider.
If there has been a violation of MOC, do we One of those factors I think Ms. Lewis
decide we want to terminate?
certainly would be is this egregious? used the word "extreme."
Do we have any evidence that
this situation or this violation is beyond what is experienced by most members? Q. So you put it in some context in terms of the
place where you live? A. Absolutely. We really have to do that because If we said any
of the permissive nature of the bylaws.
violation of MOC should result in termination, we could terminate almost any member for almost anything based on a single complaint of one other member. appropriate. That's not
The egregious, putting the film of egregious
or of extreme on it allows us to really make sure that we are taking into account the membership as a whole. Q. That's not to say you don't take into
consideration the specific facts of cases presented to you? A. Absolutely not. Specific facts of the case are
really what allow us to determine if this is an egregious matter or a kind of mundane matter. Q. considers? A. I would say -What are the other factors that the Board
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Q.
Let me rephrase it.
What are the other factors
that the Board did consider in this case? A. Sure. Another factor that we definitely look at
is there a history of member interests on this particular issue; on this particular issue, I mean secondhand smoke? There's some things in the cooperative where over the sixty year history of GHI, members have said or made it clear that there is significant interest that we need a special rule on this; for instance, in our rule book, there's a limit to the height of grass to which you can allow your yard to grow. There's also an annual
inspection process for members' yards; so, we learned, over time, that the appearance of their neighbors' yards is actually kind of important to our members. an extra of processes. To secondhand smoke, that is not the case. don't have a special rule related only to smoking in units. We didn't have any other indication that this was We They put in
of interest to the general membership; never come up as a special meeting called for that purpose. It had never
come up for an annual meeting by members who wanted to put it on the agenda; never come to the Board as a direct request to formulate a secondhand smoke policy, and, in fact, this was the only complaint that we were aware of where secondhand smoke was being brought to a Member
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Complaints Panel.
All those factors together made us
think that the membership, as a whole, was pretty content with the status quo, and that the MOC was andequate vehicle to protect members' interest from secondhand smoke. Q. Were there any other factors considered, such as
the specific circumstance of the two members here? A. Right. I would say that in every case where I
have been on the Board where we are reporting back from the member complaints process, one of the factors we look at, have the members done all that they could do individually or together to mitigate or mediate the situation, and that's important because if we decide to proceed with termination, we want to be able to tell the membership that everything else had been worked out that was possible, and that the Board's action to terminate was the last remaining step that was going to resolve the situation. So in this case, we did look to see what the members had done to make the situation better for themselves and what they were willing to do, and I think it was quite clear from the Member Complaints Panel that that they had not taken all the action that they could to make the situation better. We felt there was a lot they
could do individually and together that would resolve a
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significant portion of this complaint. Q. And, ultimately, what did the Board find? Let
me ask you this:
Was there anything else that you recall
specifically that the Board considered in terms of the factors and decision-making process other than things you have kind of gone through? A. Ed James was a Board member. I believe he was
on the Member Complaints Panel at that point in time, and he had helped to remind us that one of the things we got to think about, if we decide to move forward with termination, is how we could present that case to the membership. If members are terminated by the Board of Directors, they are allowed an appeal process. The way
that that works is that GHI would have to call the member, would have to question, and GHI would call a special meeting for the purpose of appealing the membership termination. GHI, the Board and the staff would present
their case to the membership, and then the member who was terminated would present his or her case to the membership as well, and then everyone at the meeting gets to ask questions; so, he had encouraged us to think through this a little bit, about how this could go at an appeal meeting. come up. And we talked about some questions that might
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. smoking. scenario.
I know that, for myself, I kind of envisioned a We are at the special meeting. We have made
our cases, and then members get up or members are asking me about this ahead of time. this went. So in my mind, this is how
Member asked what -- asks what rule did
Mr. Popovic break? Q. A. What did you consider with that? Right. So we would have to say, Mr. Popovic
smoked in his unit, and it impacted his neighbor, Mr. Schuman. They would say, there's no specific rule against
That's right. the nuisance clause. Okay.
It's a violation of the MOC and
So where did you go from there in terms of your
consideration? A. Yeah, we played out these questions a little bit
further actually, and thinking what else members might ask us. Did Mr. Schuman get sick from this? We could say, well, we are not entirely sure. Did he get really sick; have lung cancer? No evidence he had lung cancer. He may have had
a sinus infection or some other things like that.
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Well, was the Popovics' smoking much worse than other members in GHI? A. No, actually we don't have any evidence of that.
We are not prepared to say that because that's not clear. Well, okay, so this must be a recent occurrence where the Popovics' smoking is something that is really bothering Mr. Schuman? Well, no, actually that's not the case either. They lived next to each other ten or twelve, however many years now. And members would ask, Well, oh, what was happening in the last ten or twelve years? We would say, you know, we have had no correspondence. Been no complaints. It's GHI did receive We had no
a complaint in 1997.
We sealed the unit.
further complaints from that time. Members would ask, well, what happened? made this recurrence? change? Well, actually, no, we don't have any evidence that the Popovics' smoking habits changed. believe that to be the case. Q. But you did have some information about We don't What
Did the Popovics' smoking habits
something did change? A. The only thing we could look at; objectively say
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that had changed, Mr. Schuman completed renovations on his unit shortly before he filed his complaint. I think it is reasonable for the Board, at that point, to assume that those renovations were likely a factor in Mr. Schuman's perceived differences in the secondhand smoke in his unit. Q. You had reviewed; we talked a little bit with
Ms. Lewis about this yesterday, but you had reviewed the information from the Popovics as part of your package as well? A. Q. We had. That was actually an issue that they had raised,
is that not true? A. They had raised that the renovations were
completed recently, and we speculated a little bit about what could happen there. The fact that the washer and
dryer units were moved upstairs, you would have to do a certain amount of ducting and rewiring If the walls were modified to any extent, for that type of work, it's entirely possible that new pathways were opened up. It's entirely -- that those new
pathways weren't sealed to the level that they had been sealed before, and that smoke was infiltrating the home. Q. And why did the Board hear ultimately, again,
without covering what you already talked about, why did
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the Board here decide not to move forward because you did have that option, correct? A. We did have that option. We knew it was -- it Why would we
was an option.
We discussed it at length.
decide to move forward for an informal hearing? Ultimately, we decided not to because we didn't think it was appropriate for several facts. First, we didn't
think -- we didn't have any evidence to say this was an egregious matter. We didn't have any evidence to say that
anything had changed with regard to the Popovics; so, if they had been smoking like this five years ago or ten years ago, and they were not in violation, and we weren't going to terminate them, why would we do something now. Thirdly, we didn't think the membership would support this. GHI Board of Directors is really a We are supposed to look out for We thought
representational body.
the membership of the cooperative as a whole.
if we took this to an appeal to the membership, they would not be behind this because it was not a reasonable solution. Q. Were there options to Mr. Schuman? Was that
something considered by the Board?
Again, you, here, you Did you
said, okay, the Board has decided not to proceed.
talk about what options Mr. Schuman had irrespective of the Board's decision?
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A.
We did.
We attempted to put some of these down
in writing; although, I think we could have been more clear in our letter. If I, reading the bylaws of GHI,
would have noted that there are other options to Mr. Schuman to resolve this situation if the Board decides not to move towards an informal hearing -- Mr. Schuman can take this to a special meeting, as Sylvia pointed out, with a hundred signatures. He can add it to the agenda of He can bring it He can
the annual meeting with ten signatures.
to the Board of Directors regular meeting.
actually raise it in open session at the Board meeting with no prior notice. We have never heard from a member come to the Board of Directors and simply say, we think you should look at secondhand smoke and smoking policies in GHI. Doing that could be very effective. Q. Did you consider, at all, the specific actions
taken by the Popovics and Mr. Schuman? Again, we talked a little bit about yesterday about the actions to seal. Ms. Lewis talked about the
fact that the Popovics had done some things on their side of the wall, so to speak, and did you talk anything about what Mr. Schuman or the Popovics, themselves, had done to try to resolve it between themselves? A. Right, that was another big issue for us.
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Sylvia noted the intractable nature of both members did tie our hands to a certain extent. lot they could continue to do. We felt there was a
We had the letter from
Mrs. Popovic -- pardon me -- the testimony of Mrs. Popovic in the Member Complaints Panel where she said that they would try to stop smoking but couldn't promise it, but that was, at least, a glimmer of something that they were willing to modify their behavior somewhat. We also knew
that Mrs. Popovic was interested in burning candles or trying to do other things that would remediate the situation. We didn't get the sense that Mr. Schuman had In fact,
done anything on his side to mitigate the smoke.
he seemed totally unwilling to consider those options, and may have actually undone one of the mitigating factors that was working for the previous ten years. Q. fault? Certainly, you didn't believe Mr. Schuman was at Did you find him to be obstinate or what was the
feel of Mr. Schuman's position on this? A. It definitely wasn't Mr. Schuman's fault the Right, he's not
secondhand smoke was entering his unit.
responsible for the smoking, but he didn't seem willing to be cooperative and to say, what are the effects of the secondhand smoking? What are you actually experiencing in You know, what That
the unit, and how can we make that better?
would be the effect of HEPA filters and ventilation?
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just seemed to be a total nonstarter for him, which was unfortunate because we feel that actually could have improved the circumstances in the unit. Q. And did you review information from Mr. Repace
that had been provided? A. Q. We had access to Mr. Repace's report. Was that something that was taken in
consideration as well? A. We took it into consideration. I think the
Member Complaints Panel helped us to summarize that, and Mr. Repace's report said that -- report said that secondhand smoke can be harmful to people, okay. That's
something that is widely understood, and you know, I think, so that was not a shock. Also, I think said that
secondhand smoke is entering Mr. Schuman's unit, which, again, is not terribly a surprise. Anybody who lives in
GHI housing knows that sound and smell travel through the walls. That's part of living in GHI, is learning how to
deal with those. MR. FISHER: THE COURT: No further questions, Your Honor. Cross. CROSS-EXAMINATION BY MR. SZYMKOWICZ: Q. What do you mean by it's not terribly a surprise
that secondhand smoke was coming into Mr. Schuman's unit?
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A.
I think that any member who has lived next to a
smoker would tell you that the odor of secondhand smoke comes in, and that's just true. Q. A. Okay. So you accepted that as being true? We could say that,
I think that we could, yeah.
just as the odor of smoke, cooking and other things enter as well. Q. Didn't Mr. Schuman present evidence through
Mr. Repace that the use of HEPA filters wouldn't work to rid his unit of secondhand smoke? A. That was definitely Mr. Schuman's proposal and
was in Mr. Repace's report, if that's what you're saying; however, the Board didn't feel we were adequate experts to judge the validity of that statement. You know, we're --
our standard is different than the standards of Court. Our standard is is what is reasonable; what would the membership believe if we were to take it to the membership appeal. We would find it hard for the membership, as a
whole, to say there would be no beneficial impact to those types of improvements. Q. No evidence was presented, either by Mr. Popovic
or GHI, that Mr. Repace's statement that HEPA filters wouldn't work is false? There was no evidence contrary to
Mr. Repace's report, was there? A. That's right. There was no evidence contrary to
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that statement; however, we put that statement in the context of what we all believed and had experienced in our own lives. Q. But you are making a finding that the HEPA
filters might be a solution without having any proof that that might be true, correct? A. I don't know that we could say without any proof
that that might be true. Q. A. You didn't have any evidence? No, as we said, we had our own personal
experience where having lived next to smokers, having worked in buildings where smoking had occurred in the past; now is not; having worked in different kinds of environments where smokers are nearby, all of those things -Q. You just testified that you guys weren't
experts in this area? A. Q. That's right. So how can you believe cynically that your
subjective belief is true in order to rebut Mr. Repace's scientific evidence that HEPA filters won't work? MR. FISHER: THE COURT: Objection, Your Honor. Fair question on Cross.
BY MR. SZYMKOWICZ: Q. I mean, you are taking a scientist's testimony
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and report; rebutting it with your lay people -A. Q. A. That's right. -- beliefs. That's true, and we had -- because we are lay
people, we had no bases on which to say whether or not Mr. Repace's report was valid. Q. But didn't -- under any kind of dispute
resolution, there's a burden of proof, and the burden that Mr. Schuman has to prove that HEPA filters wouldn't work is met through Mr. Repace's testimony and report, and that fact or that belief would have to be rebutted by Mr. Popovic, and it wasn't done here, was it? A. No. Again, I think your mischaracterizing what The purpose is not to find a
the purpose of that is.
burden of proof; that is, there's no burden of proof in our Member Complaints Panel process. to identify what are the issues? What can GHI do? The process there is
What can members do?
Even if we believe that HEPA filters
would not work; would not give any relief, which we did not believe at the time, I think that we still would have ended up at the same place where there is more the members can do themselves individually and together to alleve the situation. Q. problem? What could Mr. Schuman have done to mitigate the
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A.
As you said before, it did appear that the duct
work and the improvements in Mr. Schuman's -- it appeared to us that that was the likely cause of smoke entering his unit compared to the previous decade; so, any kind of improvements made, we felt should have -- we definitely wanted to make sure they were properly sealed just as well as it had been in the decade before when GHI did the work. We also thought that direct conversation and continued conversation with Mr. and Mr. Popovic was probably in the best interest of both members. A. We thought that that could continue to be
effective, as he expressed what he was experiencing, what his desires were. Q. But this, quote, discussion had already gone on
for months at this point, correct? A. Q. That's quite possible. And no amount of talking would -- between the Would
members, anybody believed, would solve the problem. you agree with that? A. No, I would not agree with that.
I don't think The Board
that was the position of the Board at all.
believes that discussion among members is how GHI works. It's the basis of all of our governing bodies, all of our governing documents. Q. Didn't you state earlier that Schuman and
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Popovic were stuck in their positions? A. Q. A. It did seem they were stuck. How would any more talk help the problem? It's my perspective that's one of the best ways, It seemed that they were
to talk to help the problem.
unwilling to consider each others viewpoints in direct conversation, and continuing to understand a little bit better why the other person is feeling this and experiencing this is probably the best way for people to learn and to change their opinions over time. Q. So you are blaming Schuman for doing his
renovations which either caused or contributed to the smoke seepage, correct? A. Well, I wouldn't say we would blame him. We
believe that Mr. Schuman decided that he wanted to stay in his unit and do the renovations. We were pleased. We
found there was nothing we could point to that was a difference between the two units from the past ten years other than the renovations. If there hadn't been a
complaint before, why was there a complaint; nothing else we could point to that made sense. Q. Did you ever ask the Popovics if they changed
their smoking habits during those periods? A. I believe we did. I believe we asked them about It was clear from
that; what would have been different.
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the Member Complaints Panel reported back to us that the smoking wasn't worse; that, in fact, the Popovics were trying to quit smoking or, at least, Mrs. Popovic was trying and willing to quit smoking. Q. Are you aware of anyone from GHI ever asking the
Popovics if they would abide by a decision preventing them from smoking in their unit or on their patio? A. Well, as Ms. Lewis reported yesterday, I believe
that the Member Complaints Panel asked Mrs. Popovic if they could promise to stop smoking. Q. But that's not the question I asked. The
question I asked is very simple. Mr. Popovic and Mrs. Popovic tried to seek GHI's advice regarding the smoking issue. Am I correct they
prospectively were trying to find out if they could smoke and what their responsibilities and duties were? you agree with that statement? A. Q. I'm not sure that I agree with that. I would like to show you -MR. FISHER: I object to these. I don't Would
believe this witness indicates he spoke directly to Mr. and Mrs. Popovic. MR. SZYMKOWICZ: THE COURT: Go ahead. Is he aware?
Is he aware?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 moment. before. Q. A. Q. No. 28.
BY MR. SZYMKOWICZ: Showing you what has been marked as Exhibit Have you ever seen this document before? MR. FISHER: Defendants? MR. SZYMKOWICZ: MR. FISHER: THE WITNESS: Okay. Plaintiff's. Excuse me, Plaintiff's or
Thank you. Excuse me. I'm reading this for a
I don't think that I have seen this letter
Okay.
Reading?
That was addressed to the Board; took over in I got on the Board in May.
January of 2009. Q.
But you would have reviewed this letter in the
course of reviewing all the other correspondence, wouldn't you? A. Not necessarily. You know, we often ask the
general manager to summarize and give us the timeline of events. It's not entirely certain that she would have
given us every single piece of correspondence about the issue. Q. Would you agree that the statement, quote, "My
husband and I need your advice related to cigarette smoke issue addressed in a letter," in parenthesis, "January 26, 2009, sent to you and on our address by our neighbor,
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David Schuman from Unit Q," period, end quote, which is Exhibit No. 28, that the Popovics are trying to behave in a cooperative matter? A. I think so. MR. FISHER: THE COURT: Objection, Your Honor. That's all right.
BY MR. SZYMKOWICZ: Q. A. You think so? I think so. The context of this letter, that
their neighbor, Mr. Schuman, has registered a complaint, and so I think that Mr. Popovic and Mrs. Popovic are trying to say, we recognize that this is an issue. can we do as neighbors to help the situation? Q. Exactly right. And at no point in time was What
there any visible animosity between the Schumans and Popovics that you are aware of? A. I was never aware of that, although I was not on
the Member Complaints Panel. Q. It never got to your attention they had hatred
toward each other, and they had animosity toward each other outside the secondhand smoke problem? A. Definitely not. The first time I ever had any
sense of that is when Mr. Popovic was talking yesterday, so. Q. You are not aware of any physical confrontations
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between them? A. Q. No. And as far as the Board is concerned, they were
behaving -- they were both behaving in a cooperative manner? A. I don't know. We can say that they weren't -Behaving in a cooperative manner
let me think about that. involves many things. Q.
They had an issue.
They might have been
intractable on their points, but they weren't behaving unprofessionally or disrespectfully. that statement? A. I would agree with that. In fact, it seems that Would you agree with
Mr. and Mrs. Popovic wanted to make sure what their responsiblities were and to behave properly. Mr. Schuman was bringing his complaint to the Board because he wanted to know what else could be done. Q. Did the Board ever directly ask the Popovics if
we issue an order that you can't smoke in your house or on your patio, will you abide by that? A. I can't be certain because I wasn't at the We
Member Complaints Panel where they met Mr. Popovic. didn't talk about that at a full Board. Q.
So when the Board was deliberating on what to
do, the subject of whether the Popovics would abide by a
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rule issued by the Member Complaints Panel or the Board was not even discussed, was it? A. I think that that's true. The issue was really
if we were willing to move towards an informal hearing; if we were going to be willing to move towards an informal hearing to talk about termination of membership, that's when we would issue contingencies or constraints; that's when we would say, you must do this or else we'll move towards termination of membership. Because we weren't willing to move in that direction, we didn't consider what those particular constraints could be. Q. But on the spectrum of things that's like the
termination of membership is the death penalty, correct? A. Q. Nuclear option. Nuclear option. So we are way over here on the
nuclear option with termination? A. Q. Uh-huh. Did GHI ever, you know, sort of before that
drastic step, did they ever go to the Popovics and say, Look, Popovics, if you start, if you smoke in the unit or on your patio, you could be infringing on Schuman's rights; so, therefore, if we issue an order that says you can't smoke in your unit or on your patio, will you abide by that restriction?
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A.
Again, I don't think that we discussed that at We
length because there is no "or else" in that sentence. have to be able to put an "or else" on that sentence. Q. A. But I didn't ask you that? We did request the Popovics to reform their The letter that
smoking habits to work with the member.
went from the President, as a result of the Member Complaints Panel, the letter from the President to the Popovics, quite clearly this is an impact on Mr. Schuman. We think you ought to change your habits. Q. But that's not what I asked. I asked, did you
ever -- did GHI ever directly ask the Popovics if you -strike that. Will you agree to abide by the restriction on smoking inside your house or on your patio? MR. FISHER: several times. THE COURT: THE WITNESS: He said no before. I'll answer that again. The Objection. Asked and answered
answer is no, but you're making a logical step there. Before we can ask them if they will abide, we have to be willing to put that injunction in place. Q. No, you don't. MR. FISHER: You are just asking a question. Objection, Your Honor.
BY MR. SZYMKOWICZ:
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Q.
Why do you need -THE COURT: It's all right.
BY MR. SZYMKOWICZ: Q. -- another enforcement mechanism? You are just
asking them a simple question. A. That's not a simple question. That question is
definitely two parts.
That question is, A, is GHI going
to put an injunction in place; B, will you abide by that? We can't get to that second part before GHI is willing to make that injunction. Q. We weren't willing to go there.
If Mr. Popovic testifies today that he and his
wife would abide by a restriction on smoking in his house and on his patio, would that change your answer about what you could do? MR. FISHER: THE COURT: Objection. Sustained. Calls for speculation.
BY MR. SZYMKOWICZ: Q. You testified that you didn't believe that the
membership would enforce a decision to ban smoking in the unit or on the patio? A. That's not what I testified. What I said was
that I didn't believe that the membership would uphold our termination of the Popovics for smoking. Q. This is a yes or no question. You never gave the membership that option, did
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you? A. That's true. The members had an option to
terminate Mr. Popovic's membership, themselves, through the special meeting process. Q. But I'm talking, you never gave the membership
the option to uphold the decision of the Board, did you? A. That's true. We, as the Board, as
representatives of the whole membership, made a decision based on our discretion and our judgment that we felt was appropriate. Q. There were other smoking complaints in GHI
around this time, weren't there? A. It depends how you define complaints. There
were no other complaints about smoking that had risen to the level of the Board. Q. I direct your attention to page sixty of
Gretchen Overdurff's testimony at deposition on July 19th, 2010. I would like you to read the question on line ten. "Have you ever been informed of any other complaints about secondhand smoke during your tenure at GHI?" Answer: "Yes."
"By whom?" Answer: "Several different members."
"How many?"
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"Seven." Does that refresh your recollection? No. Again, I think you are talking about two This is Ms. Overdurff's deposition
different things.
about complaints, so those may have been complaints that rose to the level of staff intervention. What I talked about was the complaints that had risen to the Board intervention, and there were none that I was aware of. Q. But you had the opportunity to talk to
Ms. Overdurff to see if anybody made informal complaints to her office about this issue, didn't you? A. That's true. We did. Usually the complaints
are resolved at the staff level; are not truly Board concerns. They are issues between members that the staff
has helped the members to work out on their own. Q. But the fact that Gretchen's office had seven
informal complaints about secondhand smoke indicated that there was a problem, didn't it? MR. FISHER: foundation. Objection, Your Honor. Lacks
Mr. Boswell has testified that he's not aware To the
what the staff was doing; what was going on.
extent he was aware of it, it's one thing, but he just said he didn't know what happened. THE COURT: If you know?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem.
I'm sorry, sir? Can you repeat the question. Could the court reporter read
MR. SZYMKOWICZ:
back the last question, please? (Whereupon, the court reporter read back the last question.) THE WITNESS: Indicated there was some level of
I think it would be interesting to put that in
perspective with how many complaints Ms. Overdurff gets over a period of ten to 15 years about dogs, yards, cooking, babies, angry members, et cetera. MR. SZYMKOWICZ: I would like to mark this as
Exhibit No. 40, Member Complaint Procedures. MR. FISHER: Sorry, in the -No.
Plaintiff's 40. I think it's 45 because we had
MR. SZYMKOWICZ:
two yesterday we didn't seek to introduce. MR. FISHER: that document? MR. SZYMKOWICZ: THE COURT: It's in your Member Handbook. Mr. Szymkowicz, you have a copy of
So it's part of the handbook that is
already in the record then? MR. SZYMKOWICZ: didn't get in. No, because your handbook
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Handbook.
MR. FISHER:
Oh, I see.
(Off the record discussion ensued.) THE DEPUTY CLERK: marked for identification. (Whereupon, Plaintiff's Exhibit No. 45 was marked for identification.) BY MR. SZYMKOWICZ: Can you tell me what that document is? So the front page is part of the Member It's the Member Complaints Procedure. I assume Plaintiff's Exhibit No. 45 is
that's what the rest of the pages are; printed from the web. Q. And you testified that there's this option that
Mr. Schuman has that he could have taken the decision to the membership, correct? A. Q. That's correct. We believe that's an option.
But you remember the members complaints
procedure, Mr. Schuman didn't have the right to take this to the membership, did he? A. Actually, a different procedure. The members
complaint procedure is pretty clear on what the options are for the Board. What the options are for members are
outlined in the bylaws and in other places; so, I believe that the sections we were reading from yesterday about how you take an item to a special meeting of the membership
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are in the bylaws and clear. Q. But with regard to the Member Complaints Panel,
Mr. Schuman had no rights to appeal that, did he? A. Q. A. Q. A. That's -- well, I have to think about that. Read it. I believe that's true. Read the Members Complaint Procedure? Members Complaint Procedure is directing to the
Board how to proceed; so, it's a Board decision. Q. No, but the appeals to the membership are not in
favor of Schuman, but rather in favor of Popovic if the Board had found that his membership should be terminated? A. All the members. MR. FISHER: Objection, Your Honor. Is that a
question or is that testimony? MR. SZYMKOWICZ: THE COURT: THE WITNESS: It is a question.
Question. All members whose membership is
terminated by its Board of Directors have a right to appeal the membership as a whole, that's true. For other
members on other matters, there is -- I don't know -- I would call it appeal to membership. to take a question to the membership. talking about yesterday. Q. But with regard to the member complaints There is a procedure That's what we were
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procedures that we were operating under here -- correct? A. Q. Uh-huh. -- there is no right of appeal to the members by
Mr. Schuman from a Board decision? A. It's not necessary because he has the general
right to approach the full membership through the other processes. Q. But as far as the member complaints procedures
that are here as Exhibit 45, there is no right of Mr. Schuman to appeal to the membership in this section, is there? A. In this section, that's true. It doesn't
specifically say if the Board does not take the action that you want, you can appeal the Board's action to the membership. Q. So the Complainant, in a Member Complaints
Panel, does not have the right to, under this section, to take his or her grievance to the members if the complainant loses in this procedure, correct? MR. FISHER: Objection, Your Honor. I think
just been asked and answered several times already. THE COURT: THE WITNESS: All right. This section does not specifically
say what a member should do if we wants to take a decision of the Board to the full membership.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q.
BY MR. SZYMKOWICZ: Okay. Now, Mr. Popovic, however, has the right,
under the member complaints procedure, to take an unfavorable decision to him to the membership, correct? A. That's if a membership is terminated. That's an
extreme circumstance.
The reason that that provision is
in here is because the full membership deserves a checkup on the Board. If they believe that the Board has acted
inappropriately to terminate a membership, that's a serious consideration that the membership should be able to weigh in on. Remember, as a cooperative, it's the membership as a whole that governs how things operate, and they have checks and balances on the Board of Directors. Q. I direct your attention to page one, Policy Quote: "It is
Statement on Handling Member Complaints.
the policy of Greenbelt Homes, Inc. to ensure fair and equitable treatment for each member. The Mutual Ownership
Contract pledges that his or her comfort and peace of mind shall be respected by all neighbors as well as all members of the corporation." What does that statement mean to you? I think that's pretty clear that the members
will uphold the Mutual Ownership Contract. Q. But doesn't it also guarantee the complainant,
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the potential complainant, that his comfort and peace of mind would be respected by all members of the corporation? A. Yeah, I mean, one of the goals of the Member
Complaints Panel is to make sure that the concerns of all parties are considered during that process. Q. And this exhibit also shows that, quote,
"Provision has been made for detailed investigation of the facts." Would you agree with that? A. Let's read the rest of that paragraph just to
make sure of the context there. So the entire context is "Provision has been made for detailed investigation of facts and for clarification of charges at any early date to help prevent a minor" compliant -- should be complaint -- "from growing to one of huge proportions, possibly affecting many members of the corporation." Q. Do you believe that the Member Complaints Panel
undertook a detailed investigation of the facts in this case? A. I think that we did. We had the history of We We
that, the complaints from Mr. Schuman and Mr. Popovic. had the timeline of the acitivities that took place. had Mr. Repace's report.
We had the Popovics' claim that We had all that
the renovations were a factor.
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information at our disposal when we made a decision. Q. But you also had the situation where Mr. Repace
was making claims that were unrebutted by the Popovic side, correct? A. the Board. Q. But nobody rebutted Mr. Repace's findings, did Again, unrebutted is not a term that we use on
they, before the Member Complaints Panel? A. That's right. That's not what the Member
Complaints Panel was -Q. But how did the Member Complaints Panel
undertake a detailed investigation of the facts if they were presented evidence by one side that the other side didn't challenge? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. That's all right. So the detailed investigation is
simply all of the information that is available to us at the time. We took all this in. We weighed it. We talked
about what is good for the corporation as a whole; what are the other experiences in the cooperative, and we made our decision based on our judgment of where those things fit in context. Q. Did anyone from GHI go to the Schuman and
Popovics' units and investigate whether the smell was
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transferring; whether the smoke was actually entering the units; whether the smoke was going from one patio to the next? MR. FISHER: question. THE COURT: THE WITNESS: Did anybody go to visit the site? I definitely did not. I'm not Objection, Your Honor. Compound
aware of anybody else that did when we were talking about that in the executive session. BY MR. SZYMKOWICZ: Q. Wouldn't that be required if the Member
Complaints Panel were actually undertaking a detailed investigation of the facts? A. I don't think so because so much of this is My wife's sense of smell is much more acute
subjective.
than my own; so, if she says there's a problem that stinks, and I don't smell it, I still have to respect her sense that there's a problem; so, regardless of what any of our members would have found by going to Mr. Schuman's unit, if Mr. Schuman said there was an issue, we had to believe, okay, there was an issue. Q. Do you know if anyone from GHI investigated the
claim that the seals caused the problem? A. I don't think that we did. When we were talking
at the Board meeting, we discussed what we could do
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further.
We could look a little further into Mr. Repace's
report, but that would require us to be specialists in science, science and secondhand smoke. We could ask
Mr. Schuman for his medical records, but that would require us to be experts in the medical field. We could
require or ask Mr. Schuman to present evidence that he had properly sealed the unit, but that would require us to look at construction. He also just sealed up the unit
after -- just finished renovations with the unit after a lot of work; so, we didn't think it was reasonable to ask him to tear down walls and review those things. We did
not -- we didn't look at any of those things in detail. We were more focused on what were the next steps and what is reasonable; where logically can we go from here. Q. You would agree that GHI approved the building
permit that Mr. Schuman's contractor filed before work was started, correct? A. Q. Must be the case. You agreed that GHI inspected the work as it was
going along? MR. FISHER: Objection, Your Honor.
Foundation, beyond the scope. THE COURT: THE WITNESS: All right. I'll allow it. We have a
That must be the case.
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permitting process.
We usually follow it.
BY MR. SZYMKOWICZ: Q. correct? A. I do, but I don't think that has anything to do Most construction permits have nothing You agree that GHI approved the final buildout,
with the sealing.
to do with how sealed the unit should be from one member's house to the next. Q. How would the entire issue of sealing have
anything to do with the patio to patio transfer of smoke? MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: Q. It wouldn't, would it? THE COURT: THE WITNESS: Go ahead. I agree.
BY MR. SZYMKOWICZ: Q. A. What about the patio to open window transfer? Again, the sealing between units would probably
not affect that. Q. What about the fact that Dory Ipolito was having There's no
problems in 2009 from the Popovics smoking?
evidence that any seals were broken on her side, was there? MR. FISHER: Objection, Your Honor. There was
no discussion of Ms. Ipolito on Direct.
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THE COURT:
Sustained.
BY MR. SZYMKOWICZ: There was no evidence of any seals being broken
on the Popovic side of the wall of the Schuman wall, was there? MR. FISHER: Objection, Your Honor. We are Beyond
getting into things that he may not know about. the scope. THE COURT:
No testimony or evidence or anything Sustained.
about any sealing on the Popovic side. BY MR. SZYMKOWICZ:
I direct your attention to page three of Exhibit
45, Member Complaints Procedure? A. Q. Which section? Section Seven, Complaints Panel's Action. The
statement states, quote, "The panel considers additional information presented by the member. recommend to the Board" three things. The panel may It says, "A, That
no action is needed as the complaint was not valid or that the member will take corrective action or," two, "That the Board should meet with the member as preliminary step in possible further proceedings which may lead to formal complaints hearing or, C, That the Board should hold a formal hearing with the complaining member, and respondent and any witness called for the purpose of determining the
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merits of the complaint and any possible action to be taken." Do you agree that the Member Complaints Panel never determined that Mr. Schuman's complaints were, quote, not valid? A. I was trying to figure out the negatives. I agree that the Member Complaints Panel did not find Mr. Schuman's complaints were not valid. Q. Based on the fact that the complaints panel did
not find that Mr. Schuman's complaints were not valid, why didn't the complaints panel escalate this to the Board for further action? MR. FISHER: Objection, Your Honor.
Mr. Boswell was not part -THE COURT: complaints panel. If you know. But he wasn't a member of the complaints panel. MR. SZYMKOWICZ: Because, Your Honor, I believe He was not a member of the
there's testimony the Board said we couldn't do anything about it. THE COURT: That's not the question. The
question is why did the Member Complaints Panel not respectively follow one of these three options? BY MR. SZYMKOWICZ:
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Q.
Do you know why the Member Complaints Panel did
not present any recommendation to the Board for a formal hearing? A. The Member Complaints Panel did present their
recommendation, and their recommendations were that we take no further action at this time beyond writing letters to the member. The Board had considerable discussion on
that matter and talked about the options that were open to us, and in the end, we confirmed the Member Complaints Panel recommendation. Q. No. 35. A. That's what we decided to do.
I direct your attention to Plaintiff's Exhibit Have you ever seen this document before? Yes, this is the letter that was sent from GHI
President to Mr. Schuman after the Member Complaints Panel was held and had -- Board had their deliberations. Q. Based on this letter, what do you believe the
options that were given to Mr. Schuman to go forward in his complaints about Mr. Popovic were? A. I don't think that the letter had to spell out
all of those options; that all of those options are presented in the bylaws, and rules and everything else. don't think that this letter directs that Mr. Schuman to do anything. It asks him to examine additional areas that I don't see any other direction in I
need to be sealed.
here to Mr. Schuman.
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Q.
I direct your attention to the phrase, "It
appears there is no solution unless your neighbors are willing to stop smoking or one party or the other wishes to relocate." statement? A. It was definitely the impression of the Member Do you know what was meant by that
Complaints Panel, after they had met; we talked about earlier about the kind of intractable nature of that; it didn't seem that either of the members were, you know, willing to go into mitigative factors; although, we did have some statement from Mrs. Popovic that they would attempt to change their smoking habits. But, again, the Member Complaints Panel felt that this was likely to be an issue that was unresolved for quite some time. Q. Let's take the statement in pieces. The
Popovics indicated that they were unwilling to stop smoking, correct? A. They indicated that they were unwilling to
promise to stop smoking. Q. Okay. The Popovics never indicated that they
wanted to move, right? A. Q. Not to my knowledge. So that left Mr. Schuman with the final option
that he could relocate?
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A.
No, I don't think that's the only option.
In
fact, we had, some would say, evidence that Mr. Schuman didn't want to move either. He had just put a I would assume
considerable amount of money in his unit.
that anybody who is willing to spend that much on renovating their home intends to stay there quite some time; so, we didn't expect him to move out either. Q. Board? A. In fact, I think that we said, we hope that the So what did you expect Mr. Schuman to do, as a
members will consider the problem more fully and be willing to be part of the solution. Q. But they weren't going to because the Board
wasn't making them do anything? A. anything. It's not the Board's job to make them do We want members to work together. How a cooperative goes. police. Q. For nine months, the parties were not able to We are not the smoke
work together? A. Q. For ten years, there was no complaint. But for nine months since this started in
January of '09, the parties weren't able to work together, were they? A. I said both, that's true.
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Q. A.
The Board knew that? The Board knew that. It seemed this was pretty
well entrenched on both sides. Q. Isn't the purpose of the Member Complaints Panel
to resolve the complaints? A. To the extent -- definitely, some of the larger
purposes are to make sure that the members fully understand what the other person has to say about the situation. Q. But everybody understood what everybody's
position was, didn't they? A. together. Q. But they did get together, and it came out Schuman wanted Well, that was never clear before you get
everybody's positions were crystal clear. them to stop smoking.
Popovic didn't want them to stop --
didn't want to stop smoking? A. yeah. Q. But, again, you never asked the Popovics if they Popovics didn't want to promise to stop smoking,
were ordered to, would they stop, right? MR. FISHER: THE COURT: Objection. It's been asked and answered.
BY MR. SZYMKOWICZ: Q. So based on the fact that the parties were,
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quote, "entrenched," the Member Complaints Panel had to do something to make a decision, correct? A. Member Complaints Panel has to make a
recommendation to the Board. Q. And the Board has the duty, when the parties
disagree and their positions are entrenched, to make a decision, don't they? A. The Board has a decision to make regarding the It doesn't say
membership status of all the members.
specifically that we are required to resolve the complaint. Didn't say that we have to solve every problem That simply is not going to be There
between members. reasonable.
The members can disagree all the time.
are sometimes when members will disagree for a period of years and years and years; not the Board's job to make them come to a conclusion. It's the Board's job to make sure that there are no significant violations that ought to result in termination. Q. I direct your attention, again, to Exhibit No. Please read the
45, the Member Complaints Procedures. first sentence? A. Q. A. Page what. Page one?
"This publication formally documents steps that
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are taken to resolve compliants which are lodged against members of Greenbelt Homes, Inc." Q. So wouldn't you agree that under the Member
Complaints Procedures, that GHI's Board has the duty to resolve the complaints? MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: Q. Not leave -- not throw it back to the parties to
resolve their own complaints? MR. FISHER: THE COURT: Objection, Your Honor. Been asked and answered.
BY MR. SZYMKOWICZ: Q. Do you agree that Ms. Agans' letter, dated
October 8th, 2009, which is Plaintiff's Exhibit No. 35, basically throws the issue back to the parties for them to resolve amongst themselves? MR. FISHER: THE COURT: asked and answered. BY MR. SZYMKOWICZ: Q. 36. Okay. I direct your attention to Exhibit No. Objection, Your Honor. Exactly what he said before. Been
Have you ever seen this document before? A. Yes, I have seen this. This is the letter that
was sent to the Popovics following the Member Complaints Panel.
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Q.
I direct your attention to the sentence,
"Mr. Schuman expressed concerns for his health and the effect of secondhand smoke, which have been documented in numerous studies and reports." You agree that Mr. Schuman presented studies regarding the negative health effects of secondhand smoke, do you not? A. I think these are two separate things.
Mr. Schuman definitely expressed concerns for his health. Period. He expressed concerns about secondhand smoke.
The health effects have been documented. Q. So you agree that the health effects of
secondhand smoke are documented? A. Q. Yes, absolutely. And there was no evidence to the contrary
presented by Mr. Popovic or by GHI during the member complaints procedure? MR. FISHER: THE COURT: Objection, Your Honor. Asked and answered. Okay.
MR. SZYMKOWICZ:
BY MR. SZYMKOWICZ: Q. The Board and the Member Complaints Panel took
it as a given that the smoke was transferring in from the Popovic unit to the Schuman unit, correct? A. I think we were prepared to concede that based
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on the sense of smell and the other discomforts that Mr. Schuman was reporting. Q. And the Board also took it as a given that
courts have decided that secondhand smoke could present a nuisance to adjoining owners of multi-unit dwellings, correct? A. That's a large statement. I think, you know,
the letter is clear that secondhand smoke is considered a nuisance by some courts. say. Q. And the Board also agreed that the unwanted That's what we were prepared to
smoke is a hazard? A. I was -MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. It's all right. I was kind of surprised to see the I don't feel, when we were a
word "hazard" in this case.
full Board discussing this issue, that the word "hazard" ever came up. Often, what we'll do, as a Board, is kind
of discuss what the general tone of a letter should be; delegating the writing to -- delegate the writing of the letter to the general manager and to the President; so, "hazard" was not something we discussed. Q. You approved this letter before it went out as
the Board, didn't you?
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A.
I wouldn't say that's accurate.
The Board
doesn't approve a letter.
We talk about substance; then
the President and the general manager finalize them. Q. You would agree that the President believed that
the unwanted smoke was a hazard in this case, correct? MR. FISHER: Objection, Your Honor. Calls for
speculation; also no dispute that the President of the Board sent this letter. THE COURT: the President. (Off the record discussion ensued.) MR. SZYMKOWICZ: THE COURT: Sure. Court's indulgence, Your Honor? Speaks for itself. I think you would have to ask
Yeah.
BY MR. SZYMKOWICZ: Q. Do you agree that Mr. Schuman would have a
difficult time selling his unit because the smoking policies of the Popovics? MR. FISHER: Objection, Your Honor. Calls for
speculation; also, Your Honor, we are beyond the scope; lacks foundation about what Mr. Schuman can and can't -MR. SZYMKOWICZ: deposition. MR. FISHER: are in trial. THE COURT: We are not in deposition. Direct We are not in the deposition. We Testified about it in his
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testimony has nothing to do with that.
Sustained.
If you
want to to call him as your witness later, feel free. (Off the record discussion ensued.) BY MR. SZYMKOWICZ: Q. Do you agree that sometimes when neighbors can't
get along, it's best for the community if one of them leaves? MR. FISHER: THE COURT: Objection, Your Honor. Go ahead.
BY MR. SZYMKOWICZ: Q. If you would like, I can let you read your
deposition transcript? A. there. No, I remember that question when it came up I agree. In GHI, there are times when members
cannot resolve the issue between themselves, and it is not an issue that is handled by the Board, by the cooperative; as a whole, simply an issue between members. If they
can't resolve it, it's sometimes best for one of the members to move out. Q. And would it be best for the community, in this
case, if one of these people moved out? A. No. MR. FISHER: THE COURT: think. Objection, Your Honor. That's all right. Whatever you
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THE WITNESS:
I don't feel that way at all. Part of the reason the
don't think we are there yet.
Board came to the decision about what we did about not going to an informal hearing, because we still don't believe that the members have done all they could do to resolve this. It's similar to a Court refusing to hear a case because it's not ripe yet or they haven't resolved all the other options open to them. This member can still -- the
Popovics can still refine their smoking habits over time. In fact, it seems they have done so since the complaints panel met in 2009. Mr. Schuman can still make a request He can
to terminate the Popovics to a full membership. ask that GHI develop a smoking policy.
He can approach
the Board and propose that we put, you know, any kind of procedures into place to regulate secondhand smoke; number of those things as well happen. It seems foolish that any
of the members would move out yet based on all these other steps that could still take place. Q. A. What could take place? Any of those things I just mentioned. I think
it's quite possible that Mr. Schuman could direct a special meeting of the membership to discuss this issue. Q. I direct your attention to Exhibit No. 38, a
letter from Mr. Schuman to Gretchen Overdurff as GHI's
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general manager, dated November 30, 2009.
You would agree
that he was seeking clarification as to whether GHI's October 8th letter, which I believe was Exhibit 36, is the final action of the cooperative or whether a formal hearing is available? A. I think I need to refer to this letter. I don't
know if I have seen it. Q. Specifically, the final paragraph, please read
it into the record. MR. FISHER: Your Honor, I object to foundation
in terms of whether or not he has seen this letter. THE WITNESS: So, again, I'm not sure that I saw
this because it happened after the Board had made their decision, and it was to the general manager. The last
paragraph reads, "In light of this information, I would appreciate your clarification as to whether Ms. Agans' letter, dated October 8th, 2009, is, A, the final action of the cooperative or, B, whether formal hearing is available? If a formal hearing is available, I would
present all relevant information and supporting authorities. If it is not available, I would appreciate
knowing that at the earliest possible time so that I can take necessary action." Q. So would you agree that Mr. Schuman, based on
this letter, was attempting to find out whether there was
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any other actions available to him to resolve this dispute with the Popovics? MR. FISHER: Objection, Your Honor. Calling for
speculation about what Mr. Schuman was thinking. THE COURT: THE WITNESS: pretty direct. Go ahead. How would you read that? I think these are B
Actually, no.
A is final action of the cooperative? We can answer those two
is formal hearing available?
questions pretty succinctly without getting into the larger issue as to what other options are available to me. That would have been a very good question to bring up at the Member Complaints Panel, what are the other options to me? As I recall the way Sylvia and he had reported, that
Mr. Schuman was not interested in those other options at the time. He simply wanted GHI to tell the Popovics to
stop smoking. Q. Well, I direct your attention to Exhibit No. 39.
Could you please review this letter and tell me if you have seen that before? It's a letter dated December 7,
2009 from Gretchen Overdurff, as GHI's general manager, to Mr. Schuman. A. So I think that I may have seen this in passing.
This is -- often, when the general manager responds to a member, she will copy the Board of Directors or put it in a packet for us.
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Q.
You would agree that this letter right here does
not address any advice to Mr. Schuman that he could take his dispute -- dispute to the membership at large? MR. FISHER: speaks for itself. THE COURT: THE WITNESS: It's all right. Actually, like to read it again. Objection, Your Honor. The letter
I just glanced over it to make sure I knew what it was. A. So the letter states, "The Board stated its
position and firmly believes that any resolution must come from those directly involved. The Board regrets there's
nothing more it can do for you regarding this matter." In my mind, that's clear that is the final decision of the Board at this time, and that any resolution must come from you, yourself, and the Popovics. She doesn't outline all the options that are open to Mr. Schuman at that time. Q. So there was no advice given to Mr. Schuman to
take this issue to the membership as a whole, correct? A. There was advice to Mr. Schuman to think about
how he could resolve this on his own and with his neighbor. Q. Isn't it the cooperative's general overriding
policy to help the members get to where they want to go as far as resolving these differences with each other?
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MR. FISHER: over this before. THE COURT:
Objection.
I think we have been
I think that's exactly what he said.
They want to try to be a cooperative and get people to work together. MR. SZYMKOWICZ: Your Honor. I would like to introduce Exhibit 45 into I have no further questions,
THE COURT: MR. FISHER:
Any objection to 45? Your Honor, I would object only I was going I rather
that he's only trying to introduce a section. to move -- to have the whole document admitted.
just safe us the time and just put the whole document in. MR. SZYMKOWICZ: complaint -MR. FISHER: I don't dispute it; part of the Your Honor, the member
MR. SZYMKOWICZ: MR. FISHER:
Again --
If I can, I'll go ahead and not
object to it, but just so the Court is aware, I'm probably going to introduce the whole document. THE COURT: I'll admit 45.
(Plaintiff's Exhibit No. 45, previously marked for identification, was admitted into evidence.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
THE COURT: MR. POPOVIC: won't be long.
Mr. Popovic. Just a couple of questions. I
CROSS-EXAMINATION BY MR. POPOVIC: You were talking about the goal of members -- of
the Board of Greenbelt to help the members to find a solution for their problems, and you mentioned that the sides were entrenched and couldn't move any farther, but do you know that Greenbelt did -- Greenbelt did -- it sealed and caulked walls and everything? A. Q. You know that?
Yeah, I'm aware that was what happened. Is it correct, do you know that Popovics
introduced HEPA filters, and candles and that sort of things at their house? A. I believe this was discussed in the Member
Complaints Panel. Q. Have you heard or do you know that Popovics
stopped smoking in their unit inside? A. I don't know that that was discussed in 2009; I
mean, in the lead up to this case, I definitely heard that too. Q. Yeah. And do you know that I decreased my
smoking to one to three cigarettes outside? A. I hadn't heard that before I started sitting in
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on testimony on Friday. Q. Do you know about -- do you believe that one to
three cigarettes outside is extreme example in the City of Greenbelt? MR. SZYMKOWICZ: Your Honor, I object. This was
not covered on either Direct or Cross-Examination, and moreover, it's irrelevant what other people do in Greenbelt. THE COURT: Well -In the City of Greenbelt.
Well, he certainly testified a lot
about whether or not any given behavior is egregious or extreme. His belief, alone, may not be relevant; so, ask Ask a different question. It's okay, Your Honor. I don't
another question.
MR. POPOVIC:
have more questions; I mean, everything is clear enough. THE COURT: MR. FISHER: Redirect. Just briefly, Your Honor.
REDIRECT EXAMINATION BY MR. FISHER: Q. Mr. Boswell, just referring back to Plaintiff's
Exhibit No. 39, which is the letter from Ms. Overdurff that you just reviewed. A. You need to see it again?
Depends on what you are going to ask. MR. FISHER: Let me get Plaintiff's No. 30 and
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39. If I may approach, Your Honor? BY MR. FISHER: Q. Mr. Boswell, I'll show you actually 38, which
was the letter from Mr. Schuman that we asked about. Remember reviewing that a few moments ago; last paragraph you mentioned. There is two questions Mr. Schuman asked, is that right? A. Q. That's right. I show you Plaintiff's Exhibit 39. That's,
essentially, Ms. Overdurff's response to Mr. Schuman's questions, correct? A. I believe that is the case. It's the final action of the cooperative? And response says, "The Board stated its position." for you. And, B, is a formal hearing -- and, again, "A formal hearing is only possible after the second step is taken" of an informal hearing; so, that clarified that that is not available at this time as well. Q. So Mr. Schuman's letter, actually, he never The Board regrets it's nothing more we can do
asked GHI specifically for what else in the world he could do in GHI's purview, correct?
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A.
I don't read that in his letter to I see two questions that were answered. As a matter of fact, do you recall a
Ms. Overdurff. Q. Okay.
discussion, as part of the Board's review of the Member Complaints Panel, of whether Mr. Schuman wanted a ban on smoking completely in the community? A. that. I don't think that we spent a lot of time on It was not clear to us if that was -- if that was It definitely didn't appear
part of his complaint or not.
in the complaint to us that that's what he wanted to know. Didn't talk about that a lot. Q. But you understood that Mr. Schuman wasn't He didn't want a rule to
asking for a total ban, correct? ban smoking? A.
Right, we weren't responding to any kind of We were only responding to the
attempt to ban smoking.
Popovics and the Schumans. Q. Mr. Szymkowicz had asked you about the issue of Did you
smoke coming in through an open window.
understand, when you reviewed this, Mr. Schuman had relief when he closed his window from the smoke from the outside? A. It certainly would appear that that would
relieve smoke from coming from outside. Q. When you reviewed it at the time, that was
something the Board understood from correspondence back
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and forth? A. Smoke coming in from outside didn't appear to be It was almost directed to
an issue at that point in time. smoke coming in from inside.
The smoke coming in from
outside is something a lot more members would experience in GHI and could be, you know, increased by other factors: folks walking outside their unit; the neighbors smoking and members, themselves, smoking in the yard; chooses not to -- not to smoke in the house. Wouldn't be surprised if
secondhand smoke was coming into the window, but there are a lot of ways to deal with that. MR. FISHER: Forty-one and 42, if I may?
If I may approach, Your Honor? THE COURT: Sure.
BY MR. FISHER: Q. Mr. Boswell, you reviewed -- as part of the
Board's review, you actually reviewed the Member Complaints Panel notes that were taken as well, correct? A. That's actually not correct. I wasn't aware
that that conversation was recorded and typed up until after the fact; so, I don't think that those were available for us when we were discussing them. Q. A. Did you review that subsequently? Honestly, no. I was not aware of the
significance of that until just yesterday.
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Q.
What was -- your understanding was Mr. Schuman
was concerned with both smoke coming into his unit from his neighbor, from his neighbor's unit from the inside, correct? A. He was definitely concerned about smoke coming
into the inside of his unit. Q. He also did complain about smoke coming from one
patio over to his unit? A. We have to look at the letters to make sure;
believe that was also an issue for Mr. Schuman. Q. And we went over a great deal with
Mr. Szymkowicz, the letters back and forth and what they said? A. Q. Right. But, essentially, was it your understanding, as
part of the Board, that Mr. Schuman did not want to consider any additional mitigation to seal his unit? A. That was almost certainly the opinion of the We
Member Complaints Panel when they reported back to us. talked somewhat about what is reasonable in GHI. We
understand that there are many issues that members have for which they have to take direct action to make themselves more comfortable. We are not that far from
I-95, the Beltway and BWI Parkway; so, there's a lot of road noise. Some members use ear plugs. Some members
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close their windows to insulate themselves from that noise. Other members, if members walk their dogs early in
the morning, cars are loud; will close their windows to insulate them from that noise. It's reasonable for
members to take that kind of action to improve their situation. MR. FISHER: THE COURT: No further questions, Your Honor. Recross. RECROSS-EXAMINATION BY MR. SZYMKOWICZ: Q. Mr. Boswell, do you think it's reasonable for a
member to have to close his windows to avoid a neighbor's secondhand smoke? A. I think it's a reasonable action to do if that
member is concerned about secondhand smoke. Q. But how long would the neighbor have to keep his If the neighbor smokes for an hour every
windows closed?
day, is it reasonable for the nonsmoking neighbor to have to keep their windows closed for an hour every day to avoid the secondhand smoke from their neighbor's smoking? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. That's all right. Well, depends how deeply the If they are very
member is concerned about that.
concerned about it, want to keep their window closed for
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the entire time, yes, that is reasonable. In my case, the member, maybe, who walks her dog at 6:30 in the morning before I want and am willing to get up, before I get up; so, I actually keep my windows closed for the entire night simply because I won't have to hear the dogs, their -Q. A. Q. Do you like secondhand smoke personally? No. Would you find it an imposition on you every
time your neighbor stepped outside to have to close the windows to avoid the secondhand smoke? A. I actually have closed my windows and doors when
one of my neighbors smokes. Q. A. Do you find that an imposition on your property? I wouldn't characterize that -- I don't feel
like I have to close my windows and doors, but I want to because that improves my personal quality of life. Q. Do you believe that it's reasonable to allow a
smoking neighbor to produce carcinogens and have those carcinogens migrate into other people's units? THE COURT: Sustained. Beyond the scope.
MR. SZYMKOWICZ:
I think it goes to the
reasonableness factor, Your Honor, but. THE COURT: THE WITNESS: Go ahead. I think -- can you ask the
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question. BY MR. SZYMKOWICZ: Q. Is it reasonable for a smoking neighbor to
produce carcinogens through their secondhand smoke that travels from their unit to another unit? A. smoke? I think you are asking is it reasonable to That's the same question as is it reasonable to All those things
run a car; reasonable to barbecue.
produce carcinogens according to the testimony we have heard and everything else. regulated. None of those things are
Certainly, none of those things are regulated
in Greenbelt Homes, Inc. Q. But people don't run cars a few feet away from
their next door neighbor's windows or walls? A. I would actually ask you to consider that
because it's quite possible that in Mr. Schuman's Court, the parking space is closer to his windows than Mr. Schuman's -- than Mr. Popovic's smoking chair is, and in my case, that is certainly true. I don't know what the
layout of their Court is; for me, the tail pipe of my neighbor's car is only ten or 12 feet from my window. MR. SZYMKOWICZ: Honor. THE COURT: Anything else, Mr. Popovic? You can step down. I have no other questions, Your
Thank you, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. seated.
MR. FISHER: THE COURT: MR. FISHER: THE COURT:
Ready to proceed, Your Honor. Yes. Call David Schuman, Your Honor. Before you do that, Mr. Washington,
can you come up for a moment? (Off the record discussion ensued.) THE COURT: Thank you.
All right, Mr. Schuman. (Witness sworn). THE DEPUTY CLERK: Thank you. You may be
Please state your first and last name, and spell them for the record. THE WITNESS: S-C-H-U-M-A-N. THE DEPUTY CLERK: MR. FISHER: THE COURT: Thank you. David Schuman, D-A-V-I-D,
If I may approach, Your Honor? Yes.
DAVID SCHUMAN, a witness produced on call of the Defense, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. FISHER: Mr. Schuman, you have been here the entire
length of this case and testimony, so I'm not going to
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rehash things that we have covered previously. a couple of issues I do want to review with you.
There are
Mr. Schuman, back in 1997, when the issues first arose with your original complaint about the smoking from the Popovics, did you, yourself, take a look at the association's governing documents with steps that could be taken to go through the Member Complaints Panel process? A. Long time ago. I don't think so. I may have
taken a cursory look. Q. A. Q. Are you familiar with those documents today? In general, yes. Show you what has been marked as Defendant's
Exhibit No. 2, which is the Member Handbook, including the Member Complaints Panel procedure that Mr. Szymkowicz reviewed before. A. You recall seeing this document?
I have looked at the Member Handbook, yes. MR. FISHER: Your Honor, ask that Defendant's 2
be admitted? MR. SZYMKOWICZ: probably a hundred pages. portions be introduced. Your Honor, again, this is I direct that only the relevant There's no dispute; no even
relevance to a vast majority of these pages, and I believe that, yet again, the Defense is trying to increase the printing costs of this case; no other reason. MR. FISHER: Your Honor, I don't anticipate an
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appeal.
That's not my concern here at trial.
Unlike
Mr. Szymkowicz, what I'm focussed on is the evidence before the Court. If there is no objection to the
document, if there is relevancy to the document; if Your Honor wants a proffer, I'm happy to do it. THE COURT: Hard to ignore the relevancy of the
document, but again, in the event of an appeal, need for a record abstract, the parties can agree on what portions are relevant and which portion need not be submitted; so, will admit it, Defendant's 2. (Whereupon, Defendant's Exhibit No. 2, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Mr. Schuman, in Nineteen -MR. SZYMKOWICZ: Your Honor, with that proviso,
we ask that the Defense be ordered to provide an electronic version so we don't have to go through the expense of scanning all these documents in. MR. FISHER: Your Honor, again, I'm not
anticipating concerns about the appeal, unlike Mr. Szymkowicz. Mr. Szymkowicz has been provided,
pursuant to the rule, paper documents. MR. SZYMKOWICZ: Stuff to scan it in. I don't
know what it's going to cost, twenty bucks to scan this
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stuff. THE COURT: I don't know. We'll cross that
bridge when we come to it. MR. FISHER:
If you have an electric --
Your Honor, to the extent we
already have it electronically, be happy. MR. SZYMKOWICZ: electronically. trial. MR. FISHER: Your Honor, there's no doubt To the I provided everything to them
We gave it to them well in advance of
Mr. Szymkowicz is very technically inclined.
extent we have it in the scanned version, happy to provide it. THE COURT: All right.
BY MR. FISHER: Q. Mr. Schuman, if you could refer to Defense
Exhibit No. 12, which is in the book before you. Again, I'm not going to rehash what we covered; already part of cross-examination. Again, in May of 1997,
that was the time frame in which there had been some back and forth between the members of the GHI, yourselves, and Popovics; actually Ms. Ipolito as well with respect to concerns about secondhand smoke from your neighbor, correct? A. Q. Yes. Defendant's Exhibit No. 12 was, actually, a
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letter you had authored and sent to Mr. Jahoda and the other Member Complaints Panel members at that time, correct? A. Yes. MR. FISHER: Your Honor, as to Defendant's
Exhibit No. 12, Your Honor, ask that Defendant's Exhibit No. 12 be admitted? THE COURT: Any objection to No. 12? I have no objection.
It will be admitted.
(Whereupon, Defendant's Exhibit No. 12, previously marked for identification, was admitted into evidence.) MR. FISHER: In fact, with that letter you
indicated on the first page, number one, that "Smoke is heaviest in the master bedroom closet," is that correct? You have a numeral I there, second sentence, third sentence. A. Q. bathroom." Excuse me. Yes. And then you go on to say "the upstairs Is that another location you were concerned
with at that time? A. Q. Yes. "And the downstairs bathroom," you indicate, "on
a regular basis," correct?
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A. Q. A. Q.
Yes. That was 1997, correct? Yes. In fact, at that time as well with that letter,
you included, which is the third page of that exhibit, an article from the Washington Post entitled, Secondhand Smoke Linked to Increased Heart Attack Rates, correct? A. Q. Yes. And this letter, again, pretty much speaks for
itself, but this was your response to the Member Complaints Panel, the letter we previously looked at with respect to your concerns and the issues that you believed you had based upon the smoke from the Popovics, correct? A. I have to look at the whole history and
correspondence. Q. If you look back at Exhibit No. 11, Defendant's See the date of that
11, just to put some context here. letter, May 16th, 1997? A. Q. Yes.
And then if you look at Defense 12, May 22nd,
1997, it appears to be a response? A. Q. It's a response to Mr. Jahoda's letter. Okay. And, Mr. Schuman, refer you now to
Defendant's Exhibit No. 17. Again, Mr. Schuman, Defendant's Exhibit No. 17
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been in front of you now for a couple of minutes while the court reporter was changing her transcription paper. Do
you recall sending this letter to Eldon Ralph, Director of GHI? A. Q. Yes. Do you recall that this letter followed this
indication to you that they had taken some action to do some sealing of the units? A. Q. It followed the previous letter of Mr. Jahoda. You do agree, prior to your September 4th, 1997
letter, there had been indications from GHI that they had gone in and done some sealing in the unit, correct? A. I would like to see that. MR. FISHER: BY MR. FISHER: Q. I refer you to Defendant's Exhibit No. 5, which Just to get new context Court's indulgence, Your Honor?
was already admitted in Cross.
here, we'll go ahead and do that. Take a look at that document, and take a look at the date. There. Does that refresh your recollection
that GHI made some attempts to do some sealing; at least, this one refers to sealing in your unit? A. GHI. Q. That was a work order about work in your unit, Number Five looks like a work order written by
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correct? A. Q. Yes. Okay. Mr. Schuman, I'm not trying to be
difficult here; do you recall that prior to your letter of September 4th, 1997, that efforts had been made to do some sealing in your unit and the Popovic unit; actually in Ms. Ipolito's unit as well? all, do you? A. Q. I don't. That's not on that, on this permit. You don't dispute that at
Do you recall, prior to 1997, there had
actually -- You do agree that prior to September 4, 1997, that efforts were made to do sealing in your unit and that of the Popovics' to address the problem? A. Again, I can't speak for what was done inside I wasn't privy to that. I don't
the Popovics' unit.
dispute GHI tried to seal my unit. Q. Okay. And, again, referring back to the
Defendant's Exhibit No. 17, which you do recall sending this letter, don't you, Mr. Schuman? A. Yes. MR. FISHER: admitted. THE COURT: Any objection to 17? No, Your Honor. Your Honor, I ask that 17 be
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(Whereupon, Defendant's Exhibit No. 17, previously marked for identification, was admitted into evidence.) BY MR. FISHER: In this letter, essentially the first paragraph,
you were asking or explaining to Mr. Ralph, you had been out and wanted a few weeks to see if their actions to seal had worked; had helped, correct? A. I say, "Very much appreciate all the work you I don't think I mentioned
have arranged in this regard." sealing specifically. Q.
Indicates, this second sentence or third
sentence, At that time, I indicated that I had been away from the apartment for two weeks and would like to monitor the smoke situation in light of the work done attempting to alleviate the problem." Weren't you talking about their actions to seal the units right there? A. things. I may have been talking about a lot of different Everybody was working in good faith to try to
resolve the problem. Q. In the second full paragraph, it reads, "The Number one: "I do not
current situation is as follows."
notice any strong odor of smoke entering into the upstairs bathroom."
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That correct? That's what it says. And then number two, "The smoke contamination of
my clothes within the closet in the bedroom remains the same as before and is not a tolerable condition." Did I read that correctly? Yes. Okay. Essentially here, you are explaining
that, if I'm correct, that their efforts, while it may have resolved issues in the upstairs bathroom at that time, it did not resolve the problems you were still having in your clothes closet on the second floor, correct? A. Q. That's what it says. Okay. Refer you to Exhibit No. 19. Do you
recall seeing that letter? A. Q. I'm sure I did. Okay. This is a letter from GHI to you, and the
Popovics and Ms. Ipolito, and it basically discusses the scheduling of an October meeting to convene with respect to the ongoing problems, correct? A. Correct. MR. FISHER: 19 be admitted? MR. SZYMKOWICZ: No objection, Your Honor. Your Honor, I ask that Defendant's
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THE COURT:
(Whereupon, Defendant's Exhibit No. 19, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Refer you to Exhibit No. 21, Mr. Schuman. Do
you recall receiving this letter from Mr. Ralph? A. Q. I'm sure I did. Okay. It's been a long time.
And I think we covered this a little bit
before this.
This letter is discussing the reasons to
bring in an industrial hygienist to look at the unit, correct? A. Yes. MR. FISHER: Your Honor, I would ask for
Defendant's Exhibit No. 21 be admitted. THE COURT: Any objection to 21? To 21, Your Honor?
MR. SZYMKOWICZ: THE COURT: Yes.
MR. SZYMKOWICZ:
I do object.
I think it's I don't think
hearsay, and there's no exception for it.
it's been adequately authenticated by Mr. Schuman; so, we do object. MR. FISHER: Your Honor, I think Mr. Schuman The document
just said he recalled receiving a letter.
has been admitted with respect to the notice to
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Mr. Schuman about what it says. should be admitted. THE COURT:
I think the document
He may well have received it, but
doesn't necessarily authenticate its content. MR. FISHER: notice suppose -BY MR. FISHER: Q. Mr. Schuman, do you recall receiving this notice Again, Your Honor, as he had
about the intent of GHI to go into the unit with Martel Labs? A. Q. discovery. I may have. Looks like my handwriting.
Actually, this document came from you in That is actually your handwriting at the
bottom with respect to a note about a conversation you had with Mr. Ralph following receipt of this letter, correct? A. I'm not sure what it's about. It's my
handwriting. MR. FISHER: Again, Your Honor, I ask that
Defendant's No. 21 be admitted? THE COURT: This is a letter supplied by
Plaintiff in discovery? MR. FISHER: That's correct, Your Honor. I'm not sure, Your Honor. If
MR. SZYMKOWICZ:
Mr. Fisher says it was, then it was, but I still think it's got some hearsay statements in there do not make it
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admissible. THE COURT: Well, I'll sustain the objection.
BY MR. FISHER: Q. You don't dispute the fact that October 1997,
the association advised you of their intent to bring in Martel Labs, do you? A. I have no recollection of it other than what I'm It's been a long time.
looking at today. Q. you wrote? A.
What does the handwritten note there say that
"Spoke 10:30.
Out of town.
Okay to enter.
$250 each time." Q. A. Q. What does that mean, do you recall? I don't really recall. Refer you now to Defendant's Exhibit No. 28. THE COURT: MR. FISHER: BY MR. FISHER: Q. document. A. Q. Okay. I want to refer you to page two of that Twenty-eight? Twenty-eight.
Is that your signature, September 15th, 2007? Yes. And this was the proposal dated September 15th,
2007 that you had received from Mr. Gervasi, correct? A. Q. Yes. Actually, this was discussed with Mr. Gervasi
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when you were in the Courtroom during his testimony, correct? A. There were a number of different proposals. MR. FISHER: Your Honor, I ask that Defendant's
Exhibit No. 28 be admitted. MR. SZYMKOWICZ: Exhibit 28? I have a question as to what is Is it just
There's a lot of things there.
the letter, the first two pages or is it everything? MR. FISHER: Good question, Mr. Szymkowicz. Let's
Didn't realize there was a lot of stuff behind it. take a look.
Your Honor, it appears there's some other documents gotten mixed in with Defendant's 28. If I may
approach to retrieve, it's only the first two pages we intend to introduce. THE COURT: pages? MR. SZYMKOWICZ: MR. FISHER: No, Your Honor. Any objection to the first two
For the record, I'm going to go
ahead and remove the remaining from the book so the record is correct. THE DEPUTY CLERK: THE COURT: Yes. So you are admitting it?
(Whereupon, Defendant's Exhibit No. 28, previously marked for identification, was
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29. Q. Q.
admitted into evidence.) BY MR. FISHER: Mr. Schuman, leading up to and following the
proposal, you exchanged e-mails with Mr. Gervasi with respect to the work he was going to do in your unit, correct? A. Q. Yes. Okay. And, Mr. Schuman, looks like while these
two pages that we just removed were some e-mails, looks like -MR. FISHER: May I approach again?
BY MR. FISHER: Am I correct that these diagrams were actually
part of that proposed -- original proposal originally? A. I can't be sure. We went through several
different drafts of the proposal, and then follow-ups after the original proposal. I'm not exactly sure what
Frank provided with each document, but he certainly did some drawings as part of that process. Q. Okay. Do you recall that the drawings in front
of you now were part of that? A. Q. I really don't. I want to refer you to Defendant's Exhibit No.
If you'd take a look at that, I'll retrieve those
from you.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 admitted? gov? A. Q.
Do you recall that permit being submitted on your behalf by Mr. Gervasi to GHI for the work in your unit in March of 2008? A. I don't really know what Frank submitted. Part
of that process, Frank was going to take care of any and all permits; so, I don't think I would have seen it. Q. Showing you, if you could refer to Defendant's Is that your e-mail address, David
Exhibit No. 30.
Schuman at NASA dot gov? A. Q. That's not exactly it, but, yes. To David period S period Schuman at NASA dot
That's it. Do you recall this e-mail exchange with
Mr. Gervasi regarding the work going on in your unit or to be conducted in your unit, April 24th, 2008? A. Not this one specifically. Frank and I
exchanged e-mails. Q. But this was an e-mail between you and Do you dispute that?
Mr. Gervasi. A.
Yes. MR. FISHER: I would ask that Defendant's 30 be
THE COURT:
Any objection to 30? No objection, Your Honor,
MR. SZYMKOWICZ:
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except to the relevance of this whole line of questioning. THE WITNESS: I don't think it's an issue.
There are some renovations done. THE COURT: relevant. I can imagine where it would be
I'll allow it. (Whereupon, Defendant's Exhibit No. 30, previously marked for identification, was admitted into evidence.) BY MR. FISHER:
Q.
Defendant's Exhibit No. 31, Mr. Schuman, would
you agree that's an additional e-mail from you to Mr. Gervasi regarding the work in your unit, in May of 2008? A. Yes. MR. FISHER: admitted. MR. SZYMKOWICZ: THE COURT: No objection, Your Honor. Your Honor, ask Defendant's 31 be
(Whereupon, Defendant's Exhibit No. 31, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Mr. Schuman, ask you to refer to Defendant's
Exhibit No. 32, e-mail exchange, June of 2008, with Mr. Gervasi. Would you agree that that's an e-mail that
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you sent to Mr. Gervasi regarding the work going on in your unit? A. Yes. MR. FISHER: 32 be admitted. MR. SZYMKOWICZ: cumulative. Again, Your Honor, I think it's Your Honor, ask that Defendant's
Involves subjects that are not in dispute at
all; so, I think this is only adding, again, to the expense of this case. MR. FISHER: Your Honor, if I can proffer and
see if we couldn't cut through this pretty quickly. MR. SZYMKOWICZ: Something he should have done
weeks ago when we were getting ready for trial, Your Honor. MR. FISHER: Mr. Szymkowicz, I intend to have
Mr. Schuman, in his testimony, now review 33, 34, 35, 36, 37 and 38, and we'll be seeking the admission of those documents. Do you have any objection to the admissibility
to those documents? MR. SZYMKOWICZ: I don't have any objection to
these except for the fact, again, it's cumulative, and it involves issues that are not in dispute, at all, in this case. MR. FISHER: Your Honor, the issues of
relevance will become quite clear later in this case or I
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can approach now, Your Honor. THE COURT: MR. FISHER: THE COURT: Thirty-three through -Thirty-three through 38. I'll admit them.
I'm now admitting 32 through 38. (Defendant's Exhibit Nos. 32 through 38, previously marked for identification. were admitted into evidence.) MR. SZYMKOWICZ: Court? Are we going to approach the
Are we going to approach the bench? MR. FISHER: I think they have been admitted.
I don't think there's a need to unless Your Honor feels a need. THE COURT: Go ahead. Next question.
BY MR. FISHER: Q. Mr. Schuman, ask you to look at Defendant's
Exhibit No. 40. MR. SZYMKOWICZ: in evidence. No. 23. MR. FISHER: You are correct. Thank you. Already been admitted, Jason,
It's been admitted as Plaintiff's Exhibit
BY MR. FISHER: Q. Mr. Schuman, if you could look at Defendant's
Exhibit No. 70, do you recall sending that e-mail to Mr. Gervasi?
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A.
I'm sure I did. MR. FISHER: Your Honor, I move Defendant's
Exhibit No. 70. MR. SZYMKOWICZ: Your Honor, again, we object to
this as being cumulative and involves a subject that is not in dispute in this case; so, we do object to No. 70. MR. FISHER: Your Honor, again, I can approach I think it's highly relevant.
and proffer to the Court. THE COURT: MR. FISHER:
Go ahead and make a proffer. Your Honor, I rather approach if I
THE COURT:
Come on up.
(Whereupon, Counsel approached the bench and the following ensued.) MR. FISHER: Your Honor, there are a number of
issues in contention in this case, one of which is whether Mr. Schuman's complaints earlier on this case relate, ultimately, to the same complaints he's making now. Again, Your Honor, I approached before on the issues of the statute of limitations and waiver. Additionally, Your Honor, one of the affirmative offenses we raised in this case goes to contributory negligence. That's something that's been brought up, the
issue of waiver based on actions taken by Mr. Schuman and the repairs he made in the unit, himself.
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These e-mails address both those issues; specifically, number one, the e-mails with Mr. Gervasi talks specifically about where in the unit repairs were being made, which goes to the issue of whether he may have done something himself to contribute to the problem he was suffering, as well as the e-mails, themselves, document the timing of which these problems have existed. And, finally, Your Honor, more importantly, goes to the issue that despite all the back and forth Mr. Schuman had with his contractor, none of those e-mails talk about sealing the unit despite his prior testimony. THE COURT: If Mr. Popovic consents to not
smoking inside, does the smoking-inside issue become effectively moot? MR. SZYMKOWICZ: Your Honor, here is the other
I believe that Mr. Popovic is going to testify
that if GHI said, Don't smoke inside; don't smoke outside, he would follow that. MR. FISHER: He would have done that. I guess we will hear from
Mr. Popovic on that when we get there. THE COURT: I'll reserve on that. We'll see
what he has to say because some of it may become moot, and again, we don't need to expand the record; I cannot, that concern -MR. FISHER: Your Honor, just so you can, and
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I'm almost done with the documents; only have two more, I'm not trying to be cumulative, but there's a method to my madness. MR. SZYMKOWICZ: done this three weeks ago. THE COURT: This is the trial. That's okay. Again, you know, we could have
Sometimes trial tactics determine when things are going to be presented. MR. FISHER: Thank you, Your Honor. (Whereupon, Counsel returned to their trial tables and the following ensued.) MR. FISHER: Again, Your Honor, I move Glad Your Honor recognizes that.
Defendant's Exhibit No. 7 to be admitted. THE COURT: MR. FISHER: Seventy? Seventy. Over our previous objections
MR. SZYMKOWICZ: on -THE COURT: MR. FISHER: BY MR. FISHER: Q.
I will reserve on 70. Getting finally, Your Honor.
Excuse me, Mr. Schuman.
Look at Defendant's
Exhibit No. 74.
Do you remember that e-mail exchange with
Mr. Gervasi on December 30th, 2009 time frame? A. Not specifically. I'm sure I sent it.
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MR. FISHER: Exhibit No. 74.
Your Honor, move Defendant's
MR. SZYMKOWICZ: relevance issue. THE COURT: MR. FISHER:
Again, we object for the
I'll reserve on 74. I have no further questions, Your
THE COURT:
How much time do you anticipate? I don't really have very many I think we can get through
MR. SZYMKOWICZ: questions, at all, for him.
him real quick, five minutes. THE COURT: Five minutes I can give you.
Got to give the staff a break. MR. SZYMKOWICZ: (Recess). RECROSS-EXAMINATION BY MR. SZYMKOWICZ: Mr. Schuman, I'm directing your attention to the Okay.
Member Complaints Panel, which is Plaintiff's Exhibit No. 45. Did you review the Member Complaints Panel procedures
before undertaking this legal action? A. Q. Yes. And what is your opinion about what your options
were based on the letter from GHI dated October 8th of 2009, which is Exhibit 35?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. about.
MR. FISHER:
Objection, Your Honor.
Mr. Schuman, in his Direct, several days ago, already reviewed this letter; already gave us his interpretation of this letter. MR. SZYMKOWICZ: That's not what we are talking
We are talking about what did he believe his
recourse was based on the Member Complaints Panel, which is now Exhibit 45 that wasn't admitted until today. THE COURT: THE WITNESS: Go ahead. I'm sorry. Please repeat.
BY MR. SZYMKOWICZ: What did you believe your recourse was with
regard to Mr. Popovic's smoking after you received Exhibit 35, the Suzette Agans' letter, dated October 8th, 2009, based on your review of Exhibit 45, that GHI Member Complaints Panel procedures. A. I was trying to be super careful that I had done
everything I could possibly do with respect to GHI before filing a lawsuit. I wanted to make sure I had exhausted That's why I sent the letter.
my possibilities with GHI. Q.
And what did you believe, upon receipt of
Exhibit 39, which is Gretchen's letter dated December 7th, 2009? A. Just take a quick look? MR. FISHER: Again, Your Honor, object.
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Go ahead. Well, I believed that the
cooperative was not going to offer me a formal hearing and was not going to offer me an informal hearing, and basically, the cooperative was done. I asked very
specifically before this, is that the final action of the cooperative? Q. A. What was the answer? The answer is stated in this letter: "The Board
regrets there is nothing more it can do for you regarding this matter." Q. A. Q. You are a lawyer, correct? I am. After your reviewed the Member Complaints Panel
procedures, which is Exhibit No. 45, do you believe that you had any recourse to go to either the Board or the membership based on your complaint against the Popovics? MR. FISHER: Objection, Your Honor. Is he I'm
asking for a legal conclusion because he's a lawyer? just not clear on the question. THE COURT:
His belief, what recourse he may
have had based on that Member Handbook. THE WITNESS: I don't believe I had any further
My understanding of the general membership
meetings are that they are for important matters affecting
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the entire cooperative. nature at all.
This, in my view, is not of that
I wasn't proposing any policy change or I had a simple dispute with my
rule for the cooperative.
neighbor that I took to the Member Complaints Panel process, and I was very careful to say to Ms. Overdurff, is that really it? Is that the final action, final
possibility that I have with the cooperative? I wanted to be very sure because I wanted to save all this expense and trouble. Q. So do you believe that you had any recourse to
go to the membership with a specific complaint about Mr. Popovic's smoking as opposed to a general complaint or a suggestion about banning smoking, in general, in the community? A. Q. A. I didn't. Why is that? As I said, the general membership meetings are
for matters of general interest and importance to the cooperative. This wasn't of that nature. This was
similar to my neighbor has a vicious dog or he's playing loud music at midnight. You wouldn't take that to a
general membership meeting. Q. With regard to Mr. Fisher's Cross-Examination of
you on the issue of the renovations, do you believe that anything that you did in your renovations contributed to a
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breaking of the seals which allowed the Popovic smoke to enter your unit? A. I don't because I was very explicit with Frank,
and Frank was very careful to indicate to me that he would address those issues and leave it better than the way he found it. Q. that? A. Q. I do. Drawing your attention to the lull of Do you believe Frank, the contractor, did just
complaining about smoking between approximately 1999 and 2007. Why do you believe there was a lull in your
complaints? A. Q. time? MR. FISHER: Objection. Goes beyond the scope. We all I believe -Where you weren't complaining for this amount of
Also, this goes back to his Direct testimony.
understand what Mr. Schuman's belief is based upon what he said last week. THE COURT: scope of Direct. MR. SZYMKOWICZ: THE COURT: MR. POPOVIC: I have no further questions. Asked and answered. Goes beyond the
Mr. Popovic, any Redirect? No, Your Honor.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 responses? break.
THE COURT:
All right.
We'll take a five-minute
Court is going to stand down for five minutes. MR. SZYMKOWICZ: Your Honor, may we approach on
an issue that we discussed at the bench? THE COURT: Sure.
(Whereupon, Counsel approached the bench and the following ensued.) MR. SZYMKOWICZ: Your Honor, when we were at the
bench, Mr. Fisher talked about statute of limitations defense and contributory negligence and -MR. FISHER: Waiver and estoppel. Waiver and estoppel. We asked
MR. SZYMKOWICZ:
them things -- this interrogatory:
"State each fact upon
which you rely in the defense of Plaintiff's claims," and they they have got to these issues, and I can show you the -MR. FISHER: Your Honor, they are raised in your We can present any defense
answers Affirmative Defenses.
we want to at trial with respect to claims that are brought, Your Honor. You have the interrogatory responses? MR. SZYMKOWICZ: MR. FISHER: Yeah.
That is the questions as well as
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Your Honor, we also objected to that to the extent privileged information; legal strategy with respect to the defenses going to present. THE COURT: MR. FISHER: Facts. Your Honor, the facts that have
come out in depositions, Your Honor, if you go through the list, no laws that prohibit Popovic from smoking. Greenbelt has no rules, when it comes to tort. Schuman
first complained of secondhand cigarette smoke in 1997; so, we advised him we are talking about the issues, length of time; talk about investigation; talk about the sealing; talk about in 2009 Schuman renovated his unit, which involves stripping his walls down to the studs; so, we are talking about the facts underlying the defenses. We don't have to say, I'm going to raise the affirmative defense. We have to say the facts that
support it, which is the question that he asked, which we answered, which goes to the exact testimony that I elicited from Mr. Schuman today. THE COURT: Those answers in response to that
question, what facts do you rely on? MR. FISHER: THE COURT: limitations? MR. FISHER: Correct. I have given -- all the Correct. To support the statute of
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facts are here, the facts that I, as a lawyer, now articulated them; what this really means to the Court. MR. SZYMKOWICZ: exactly what was said. It says, Mr. Schuman first complained of exposure to secondhand cigarette smoke over -- in 1997. It doesn't say he failed to take action based on that, which I think would be the logical thing if you are trying to establish a statute of limitations defense; I mean, this statement on its own, doesn't say anything. THE COURT: I don't think the issue -- I don't There's -- I'll show the Court
think the suggestion is that limitations begins to run. This is an ongoing event. MR. SZYMKOWICZ: THE COURT: Ongoing.
So if the fact that he didn't file
suit in '97 doesn't mean that it's precluded by the limitations in filing now because it's an ongoing matter. Each time there's a cigarette lit up, each time there's a cigarette that where smoke goes into his apartment, creates a new cause of action. MR. FISHER: Well, Your Honor, I understand
what the Court believes right now; what you have heard, Your Honor. We are not disclosing that. We haven't
submitted our argument to the Court on that issue, but irrespective of the case law in Maryland, which I'll get
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to in closing on the issue of waiver. THE COURT: MR. FISHER: Estoppel. Estoppel, all those issues are
relevant; so, irrespective of the Court's consideration of limitations, I understand where Your Honor is at this point on that issue, but doesn't mean I can't raise it and argue it. We certainly answered that question -THE COURT: And for the purpose of those issues,
you'll argue the facts that you articulated in response to the question. MR. FISHER: Correct. What we have just heard
as well can -- actually confirms everything we said in that interrogatory response; so, there's nothing hiding here; to suggest that, I think is improper. it. THE COURT: issue comes up. MR. FISHER: Again, Your Honor, we make no I'll be careful to listen when that We answered
efforts to try to hide the ball in discovery. Mr. Szymkowicz has raised this several times. We don't play those games, Your Honor. THE COURT: Okay. The second issue would be They never talked about facts
MR. SZYMKOWICZ: contributory negligence.
that would indicate that Mr. Schuman was negligent when he
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did -- undertook the renovations.
Just says, "In 2009,
Schuman renovated his unit, which involved stripping his walls down to the studs," period. That doesn't talk about In fact, the
any facts that show he was negligent.
Court's Order on the preliminary injunction stated that the -- something to the effect of the Schuman contention that -- or the GHI contention that Schuman contributed to the smoke seepage by its renovation invasions is ludicrous, if not outright offensive, something to that effect. MR. FISHER: We are at trial. We actually
didn't present evidence at the preliminary injunction hearing. We cross-examined his witnesses. This is a
different set of circumstances.
The answer of the facts,
given the answer to those questions, gave the facts that underlie my arguments. We are not there yet. If he wants
to argue this at closing, I haven't sustained evidence of those defenses. He can do that, but I have the ability to
present what I want and argue what I want in defense whether Your Honor accepts those or disagrees -THE COURT: To the extent there's a violation of
discovery; then the objection is made, I can rule. MR. FISHER: There has been no violation. We
gave all the facts in our arguments.
I don't have to tell
Mr. Schuman exactly my case and how I'm going to line them
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all up.
That's part of how this works. THE COURT: Discovery answering thirty question,
30 interrogatories, doesn't take the place of five days of trial. We all understand that. Okay. MR. FISHER: Thanks, Your Honor.
(Whereupon, Counsel returned to their trial tables and the following ensued.) THE COURT: MR. FISHER: Next witness? Your Honor, GHI rests its case. We
have no further witnesses to call. THE COURT: MR. POPOVIC: THE COURT: MR. POPOVIC: Mr. Popovic. I offer myself as a witness. Come on up. Thank you, Your Honor.
(Witness sworn.) THE DEPUTY CLERK: seated. Please state your first and last name and spell them for the record. THE WITNESS: My name is Darko Popovic, Thank you. You may be
D-A-R-K-O, P-O-P-O-V-I-C. THE DEPUTY CLERK: Thank you
DARKO POPOVIC, a witness produced on call of the Defense, having first
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been duly sworn, was examined and testified as follows: THE COURT: asking you questions. narrative. later, okay? THE WITNESS: Yeah, okay. Mr. Popovic, there's nobody here I suppose you will give some Argument comes
Confine yourself to the facts.
Your Honor, my family connection with Greenbelt starts a couple of years before we moved there. time we spend a year in '86, 87. First
My wife was doing her
PhD at Dunbarton Oaks College (phonetic) in Georgetown, but somehow we fell in love with the atmosphere and conditions in Greenbelt, and our son, at that time, was three-and-a-half years old; so, it was much more convenient for her to drive from Greenbelt to Dunbarton Oaks, thirteen, fourteen miles, something like that, and for me to spend time with our son, and Greenbelt Kindergarten was nearby, everything, library in the middle of the settlement; so, we really enjoyed. And after a
year, we were leaving Washington, and somehow we thought that probably we will never see Greenbelt again in our lives, and we were sorry because of that. Because, of course, life has weird turns, and several years later, we came and we moved in, and we enjoyed that. And problems started with Mr. Schuman's
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complaints because of smoking, as it is well known. at that time I understood that.
And
I had friends who were
not smoking and who complained whenever they come into our house where it smells, all the tobacco, and we go home; we have to wash our clothes or something like that. And after GHI's actions and meetings, we believed that everything is okay, and it looked like it is okay, and not just in that moment, but for the next thirteen years everything was okay. And then this next phase started with the occasional smoke last couple of weeks. And then after that third phase started, when that occasional smoke become grave danger and cause of various dreadful diseases and so on, but all together, I think and I believe that the effects in this case are absolutely opposite of Mr. Schuman's claims. Why I say that? are smokers. Your Honor, we have friends who
I said at preliminaries, we were not
gathering a gang of smokers every day, but we have friends who were coming to our home who were smoking; for example, couple of our childhood friends who, correspondents from Washington, journalists, and the journalists tend to smoke more than other people, I think, but today, they are both smokers, and they were coming to our house. We have
friends, very close childhood friends who live in Toronto,
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Canada.
They used to come to our home couple of times Of course, they were not driving from
during the year.
Toronto every other week or something like that, but they were coming, and there were occasions when possibly six or seven smokers could smoke inside or outside; not often, but it happened. thirteen years. And it was happening; going on for No complaints at all. Then our
friends from Europe, correspondents, journalists, left to Europe two or three years before this whole suit was filed. Then our friends from Canada got grandkids, and we It's more and more
all are becoming older and older.
difficult to try to drive ten or twelve hours from Toronto to Washington or vice versa; so, they didn't visit us for three or four years, I think. We are talking on the phone
all the time, but it doesn't have anything to do with secondhand smoke. Couple of other friends who are smoking
from time to time, and who are coming to our home from time to time; that means two or three or four times during the year, stopped smoking. So after thirteen years, there were only my wife and me smoking in the house, and then it was after thirteen years of no complaints, it was occasionally smoke in last couple of years; then, unfortunately, my wife fell ill. We stopped smoking inside. She completely, of
course, quit smoking.
I decreased my smoking to the
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maximum; not only at home but all together.
At home, I'm
smoking one, two, three cigarettes in last couple of months. I would say that I never smoked more than two
cigarettes in the evening. And that became grave danger; so, I'm wondering how two cigarettes might become grave danger if two smokers smoking at home with occasional smoke, couple of last weeks or when five or six or four or seven smokers smoking, no complaints. At the same time, Your Honor, not just during our life in Greenbelt but all our lives in Europe we were following the rules. We have never broken any rule in our
life, if you don't count couple of speeding tickets in last twenty years. Greenbelt. We have followed every rule in We didn't do
We didn't break any law.
anything which is against the law or which is forbidden. And then, finally, we came to this lawsuit of this proportion. You see, I think that fifteen to twenty
people is losing time day after day in this situation in which the whole will suffer terrible financial crisis; so, I think that all this could be -- could have been settled differently, but unfortunately, Mr. Schuman decided to file a lawsuit, and he filed a lawsuit couple of weeks after my wife stopped smoking; so, I'm not sure why she is subject of this lawsuit at all, because she is not
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smoking.
She stopped before lawsuit was filed. That's it, Your Honor. THE COURT: Is it your position that you are
only smoking outside now? THE WITNESS: THE COURT: THE WITNESS: several times. THE COURT: first hearing. There was a consent earlier at the Pardon? You only smoke outside now? Yes, Your Honor. I said that
You consented to only smoking outside? Yes, that's right. You agreed to the temporary
restraining order in that regard? THE WITNESS: THE COURT: That's right. Is it still your position that you
would agree to a restriction in that fashion? THE WITNESS: We stopped smoking, and if
Greenbelt Board changes the rules, we will follow any Greenbelt Board's rule, but if out of two-and-a-half thousand people living in Greenbelt, I'm the only one forbidden to smoke in my own house, that if it is Court's decision, I will obey that, but I will think that it is sort of discrimination. THE COURT: My question is similar to the prior Is it your position today
temporary restraining order.
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that you would consent to smoking only outside? THE WITNESS: THE COURT: THE WITNESS: THE COURT: Yeah, of course. All right. That's what I am doing now so. Yes. CROSS-EXAMINATION BY MR. SZYMKOWICZ: Q. You testified that you and your wife were law
abiding people, correct? A. Q. Correct. And you are also pleasant people. Would you
agree with that? A. Q. A. Q. A. Q. problem. A. Q. Thank you. I don't think Mr. Schuman has outside of What? You are nice people generally? Not for me to say that. But -What do you think? I think you are very nice; never once had a
smoking, would you agree? A. Q. with you? I don't know about that. I suppose so.
He has never yelled at you; never got in a fight
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A. Q. A. Q.
No. So aside -He's much younger and stronger than me. Aside from this issue, you have not had serious
problems with either the Schumans or Popovics -- I'm sorry -- the Ipolitos or the Coburns? A. No, we don't have any problem; we didn't have
any problem. Q. GHI had, in the course of the Member Complaints
Panel, gone to you and said -- asked you the question: Would you and your wife abide by a prohibition on smoking in your unit? Would you have agreed with that? Would you
have agreed to abide by such a request? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. It's all right. Go ahead.
Let's be clear, Mr. Szymkowicz.
Is that a prohibition to Popovics in Unit R or prohibition in the whole Greenbelt? BY MR. SZYMKOWICZ: Q. In Unit R. Remember, we had this Member
Complaints Panel where the theory of Greenbelt and the Member Complaints Panel is to settle differences between people? A. Q. Yeah. You would agree with that, right?
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A. Q. community? A. Q. A. Q.
Yeah. It's not differences of policy in the whole
Yes. You would agree? Yeah. So to settle this problem, if Greenbelt had
said, will you stop smoking in your unit to make this problem go away, would you have abided by that? A. It's not a problem. It's not a question between
Mr. Schuman and me.
It's the question of a policy of the
settlement with thousand and six hundred units and two hundred, five thousand people living in it, quite frankly, so. Q. So the Member Complaints Panel wasn't facing They were facing a dispute, you
over a policy change. would agree? A.
I would understand discrimination, and I
wouldn't agree with that, and I'm sure my wife wouldn't. Q. Twenty-five hundred people? THE COURT: THE WITNESS: Two thousand, five hundred. Two-and-a-half thousand.
BY MR. SZYMKOWICZ: Q. A. If GHI -So I think on such decision by Greenbelt's
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Board, we would appeal on such a position.
If Greenbelt's
Board decided to ban smoking in the whole settlement, we would obey and think whether we are going to stay or move somewhere else. Q. So if the Board had come to a decision that you
couldn't smoke in your unit, you wouldn't simply accept that? A. Q. We would accept and appeal on that decision. In light of the fact that you testified that you
have decreased your smoking and your wife's unfortunate illness, do you believe that it would be a significant imposition on you to simply walk into the common area behind your patio to smoke as opposed to smoking on your patio where it could go into the Schuman and Ipolito units? A. Mr. Szymkowicz, let me tell you in front of this First, Mr. Schuman
Court, there is a twenty feet limit. proposed twenty-five feet.
After that, his experts said
twenty-seven and 44 feet are not enough. And you know the common area on one side of our house is 42 feet; so, even if I go to common area, I would be very dangerous for Mr. Schuman's health. Q. area? A. I agree if every member of Greenbelt community Would you agree to go 75 feet away in a common
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has to go 70 feet. Q. out? A. Q. A. occasions. inside. Yes. For everybody involved? See, I tried and my wife tried on different We decreased our smoking. We stopped smoking But we are here today to try to work this case
We decreased my smoking in backyard. But can you tell me, did Mr. Schuman do or did
anything from that point? Q. Let me ask you, you don't contest that
secondhand smoke from your patio is coming into Mr. Schuman's unit when he has the windows open? not this dispute here, is it? A. Q. A. No. And -Well, I agree that the scent of secondhand That's
smoking is coming into his unit. Q. And you never disagreed that secondhand smoke,
when you were smoking inside of your unit, was coming into his unit, do you? A. Q. Well, I thought it wasn't coming for 13 years. But when both in 1997 when Mr. Schuman made the
complaint and then -A. I believe that I thought we solved the
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situation, and next 13 years, I believe that everything is okay. Q. A. Okay. I couldn't believe when Mr. Schuman complained
after 13 years of much more smoking. Q. After Mr. Schuman undertook his renovations in
2009, do you believe smoke was coming into his unit from the inside of your unit? A. Q. Yes. Going back to the imposition it would be for you
to smoke in the common area, would it be an imposition for you to smoke 75 feet behind your house so that it wouldn't affect anybody? A. Q. A. Yes, it would be. Why is that? Because my wife in this situation can't make
more than five steps with walker; so, I like to sit outside with her when she is able to go outside. every day. It's not
It's very rare in last months and to be able
to talk with her; not to take her out to sit on the -- I can move to another part of the Greenbelt because of Mr. Schuman's imagined health problems. Q. currently? A. Yes, I'm smoking several meters from her. So you are smoking in front of your wife outside
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Q. A. smoking. Q.
And do you believe that's unhealthy for her? No, I don't. Her tumor has nothing to do with
How many cigarettes do you currently smoke a
A. Q. period? A. Q.
At home? On average, the whole day, twenty-four hour
Ten cigarettes. How many cigarettes do you typically smoke at
home on an average today? A. Q. One or two last several months. How long does it take to smoke one or two
cigarettes? A. Depends on the brand of cigarettes. You know,
there are various cigarettes. Q. A. But the brand that you smoke? Which I smoke, it takes for two cigarettes, it
takes something like ten to 12 minutes. Q. A. Q. A. Q. A. For both of them? For both of them. So about five to six minutes per cigarette? Something like that, even less than that. So why is it -I am not aware.
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Q.
Why is it that it would be an imposition on you,
for ten to 12 minutes while you are smoking, to go simply walk 75 feet into the common area, smoke your cigarettes and then come back? A. It would be an imposition because I would have I have to carry a glass with a drink,
to carry my chair.
for example, I'm drinking at that moment, pack of cigarettes, and lighter and whatever. MR. SZYMKOWICZ: THE COURT: Court's indulgence, Your Honor?
Uh-huh.
(Off the record discussion ensued.) BY MR. SZYMKOWICZ: Q. Do you think it's an imposition to Mr. Schuman
to have to breathe your secondhand smoke? A. Q. He doesn't have to breathe. What can he do to avoid breathing your
secondhand smoke? A. He can close the window for that ten minutes.
It is much easier than to walk 75 feet. Q. What if he went out for a walk while you were You
smoking with his windows open, and he comes back.
would agree that the smoke would have come into the unit while he was out for a walk and the windows were open? A. From that point of view, is it an imposition for
Mr. Schuman to come into this Court through a group of
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fifteen smokers? Q. asked. Is it an imposition for Mr. Schuman to have to close his windows on a nice day to avoid your secondhand smoke? A. Q. A. I don't think so. You don't think so. Because we heard today that peoples closing If it's ten minutes a I direct you to answer the question that I
their windows to various reasons. day, not a problem. Q.
We have testimony that.
You would agree that the smoke would still be in
his apartment when he comes back from his walk if his windows were open, don't you? A. Q. That's not -- scent of smoke. You would agree that the scent of smoke would be
present in his apartment after he comes back -A. Q. A. Q. It might be or might not be. You agree? Yes. Do you agree that cigarette smoke is annoying
for Mr. Schuman? A. Q. I suppose so. Do you agree that cigarette smoke is annoying to
Dory Ipolito?
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A.
Well, since her guests are smoking and her first
door neighbor on the other side permits his guests to smoke very often, and I smoke in the back very often; so, I'm not sure how Dorry Ipolito is reacting on smoking depending on who is in question. Is it my smoking or the
other neighbor smoking; so, I'm not sure. Q. If Mr. Schuman were having a dinner party
outside on his patio, would you still go out on your patio and smoke? A. One or two cigarettes probably, maybe. I might
go somewhere else not to bother his guests. Q. Do you believe that Mr. Schuman has done
anything wrong in making this complaint about your secondhand smoke? A. Well, generally, if you ask me, I think it's
wrong to file a lawsuit against your neighbor for almost anything; not to mention because of one or two cigarettes. On the other hand, I don't think I'm sure that smoking, in this case, is not nuisance, and that's the point of this lawsuit. Q. Do you know if Mr. Schuman has ever asked you to
stop smoking during any point in this proceeding? A. Not personally. He writing letters addressed to
my wife complaining about smoke, but I don't remember he asked to stop smoking.
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Q. smoking? A. Q.
Did you ever receive any medical advice to stop
No. Do your know if your wife ever received any
medical advice to stop smoking? A. No, I checked her; checked that with her several
times, and she claims that she never mentioned to his doctor, and her doctor never asked her about smoking, and he's going to same. He is. She is going to the same That's Dr. Granite in
physician or doctor as Mr. Schuman.
Central Greenbelt, and they never discussed, and she even doesn't know -- she even doesn't know if the doctor is aware that she is smoking. Q. Did you undertake an investigation of you and
your wife's medical records, based on our appearance in Court a few weeks ago, to inquire as to whether your doctor's medical records indicate whether there's any advice to stop smoking? A. I send you a letter. I think you have my
doctor's letter about that. Q. And so your testimony is clear, your doctor's
notes do not reflect any mention of smoking? A. Q. No. Do you agree that secondhand smoke is dangerous
to third-parties that breathe in the secondhand smoke?
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A.
Yes.
But at the same time, I think that the
whole thing is overblown, and as we heard yesterday from Dr. Gots. MR. SZYMKOWICZ: Your Honor, I object to the
hearsay, what Dr. Gots said. THE COURT: He's repeating what was testified to
yesterday, but his answer was, he thinks it's overblown. BY MR. SZYMKOWICZ: Q. Do you believe that secondhand smoke is
dangerous to Mr. Schuman? A. Yes, I suppose so. MR. SZYMKOWICZ: Your Honor. THE COURT: THE WITNESS: THE COURT: Mr. Fisher. But may I add something? Wait. He's going to ask you. I have no further questions,
CROSS-EXAMINATION BY MR. FISHER: Q. Mr. Popovic, what were you going to add? Let's
start there. A. I wanted to add that it might be especially
dangerous if Mr. Schuman is working with a colleague who is smoking in the same office, for example, or going to a restaurant where smoking is permitted, and such restaurants exist, I think, in some twenty-five states.
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MR. SZYMKOWICZ:
I move to strike as not being There has been no
in accordance with the facts presented.
evidence that Mr. Schuman smokes -- works with a smoker that smokes in his presence or goes to restaurants or bars where smoking is allowed. THE WITNESS: THE COURT: I didn't say that. The question was: Does he think --
he's qualifying his answer by -BY MR. FISHER: Mr. Popovic, do you believe that the smoking
that you are doing in -- let's focus on right now what is happening that exists right now. Is the smoking that you
are doing in your yard right now, do you think that's creating a dangerous condition to Mr. Schuman's health? A. Q. A. No, I don't. Why not? Because I'm smoking outside in the open air, and We heard these days that that smoke
smoke is dissipating.
might dissipate in a couple of minutes, depending on the wind or velocity of wind, whatever; so, I don't think that outside smoking is dangerous for Mr. Schuman, especially when I'm doing that twenty-seven feet far from his first window. Q. Okay. You never, in your dealings with GHI, you
never volunteered that you agreed to stop smoking to
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prevent Mr. Schuman from smelling your smoke, did you? A. No. MR. FISHER: Mr. Popovic? BY MR. FISHER: Q. No. 20. To your right, there is a Defendant's Exhibit You talked about the dealings you had before with Your Honor, if I may approach
GHI and Mr. Schuman back in 1997? A. Q. Yeah. Look at Exhibit No. 20. Is that a letter that
you and your wife had sent to GHI in response to, at the time, Mr. Jahoda's letter? If you recall, he was the member of the -complaints panel member that had worked on your dispute, from earlier testimony. A. Q. A. The Defendant's Exhibit No. 20? Yeah, it's two pages. My wife's letter to Mr. Jahoda. Yeah, I remember that. It was a long time ago,
and, of course, in the meantime, I forgot, but again, I checked this letter, and I remember that my wife wrote, but I certainly know what she wrote. Q. Actually, if you look at page two, I believe
that it's signed by your whole family? A. Yes.
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Q.
Including your son.
You put your son's name on
that letter? A. Q. Yes. The final paragraph of this letter talks "We would like to be good
about -- I'll just read it.
neighbors, but we also have our rights in our private house and gardens." A. Q. Yeah. Essentially, you are referring to the fact that Is that what you are
GHI doesn't prohibit smoking? talking about? A. Yeah, that's it. MR. FISHER:
Your Honor, I move Defendant's
Exhibit No. 20 into evidence. THE COURT: Any objection to Twenty? No objection, Your Honor.
Be admitted.
(Whereupon, Defendant's Exhibit No. 20, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Mr. Popovic, I refer you to Exhibit No. 24 in Defendant's Exhibit No. 24. Take a look at
the notebook.
that letter, November 25th, '97? Do you recall receiving this letter from GHI?
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A. Q.
Yes. Okay. And this is the letter discussing Martel
Labs, correct? A. Q. Yeah. Do you recall a time back in this time frame in
November October time frame, 1997, when GHI had Martel Labs come into your unit to do some work? A. Q. Yes. And they did sealing of your unit, or -- I'm
sorry -- they did testing in your unit, right? A. Q. Yes, that's right. Do you believe that GHI responded reasonably to
the complaints and the position that you and your wife had taken with respect to the smoking dispute that was going on? A. Q. I believe they did. Do you believe that GHI should have done
something different in 1997 to try to resolve the issue? A. Q. A. Q. No, I couldn't think of anything more. Because they had -They did what they could. I couldn't think --
What they did was they came into your unit and
actually tried to seal the unit, correct? A. Q. Yes, that's right. They brought Martel Lab in to do testing?
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A. Q.
That's right. I believe you and your wife even volunteered to
buy larger air filters to use in your unit, correct? A. Yes, yes. Mr. Fisher, we bought various air
filters, and we spend thousands of dollars for three sixty-four air filters, which were working 24/7 for years, and as I mentioned the other day, my wife was running around trying to find some more efficient candles and that sort of thing just to help. Q. And that was being encouraged by GHI
representatives, correct? A. Q. could? A. Yeah, that's right. MR. FISHER: Your Honor, I move Defendant's Yes. They were asking you to try to do what you
Exhibit 24 into evidence and approach the bench? THE COURT: Any objection to 24? No objection, Your Honor.
(Whereupon, Defendant's Exhibit No. 24, previously marked for identification, was admitted into evidence.) MR. FISHER: Mr. Popovic? Your Honor, if I may approach
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BY MR. FISHER: Mr. Popovic, I'm showing you what has been
previously marked as Popovic Defendant's Exhibit No. 1. MR. SZYMKOWICZ: Strike that, Your Honor. No
objection with respect to the letter, but there's no attached copy of the report which outlines their findings, which we would object to. MR. FISHER: That's why I have only introduced
the letter, because we have been over that before. THE COURT: MR. FISHER: THE COURT: The attachment is not there. Right. Yes. May I approach?
BY MR. FISHER: Mr. Popovic, this is a picture you introduced in
Court last week -A. Q. Yes. -- in your examination. That's a picture that
you took, is that correct? A. Q. A. Q. That's right. Two pictures? Two pictures. And where did you take this picture? Is that in
your attic? A. Q. In my attic. What is depicted -- let's start with the top
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picture. A.
What is that? Well, it is intended to show that the GHI, among
other things, sealed holes between the units. Q. Okay. And the top picture shows a brick wall
and some sealing, as you described it, and that's on the inside of your unit? A. Q. That's correct. And the bottom picture depicts the opposite side
of the same attic in your unit? A. Q. A. Q. A. That's correct. Depicts the seal that was done on your side? That's correct. And the other side is Mr. Schuman's unit? Yeah. MR. FISHER: Your Honor, I move Popovics
Exhibit No. 1 into evidence. THE COURT: Any objection? I believe it was already
MR. SZYMKOWICZ: entered. MR. FISHER: believe it was entered. THE DEPUTY CLERK: MR. SZYMKOWICZ: THE COURT:
I think it was marked.
I don't
It was only marked. We have no problem with that.
It's admitted.
(Whereupon, Popovic's Defendant Exhibit No. 1,
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previously marked for identification, was admitted into evidence.) THE WITNESS: If I may add, Mr. Fisher, at that
point, my opinion, GHI did even more than it should or was supposed to do because we are talking here -- we are mentioning some directions of smoke which are very curious and wierd somehow. We never smoked since we moved into Never
that unit any other place than on the first floor.
smoked on second floor, and it came out that the smoke from predominantly living room where we are smoking is going to the first floor; is going to the clothes closet and stairs, and then entering the attic, which also has some sort of smoke door, and then going through the attic to neighbor's unit, and going two flights down; so, it's very unusual and weird way of smoke spreading. Goes up
and down through various closed doors and closed rooms. BY MR. FISHER: Well, you don't dispute the fact --
Mr. Popovic, you don't dispute the fact that living in GHI, that you're often subject to smells and noises from your neighbors, do you? A. Q. basis? A. Yeah. That's right, yeah. So it's something you deal with on an every day
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Q.
Kind of something you just learned to live with
in a building that's many, many years old? A. Q. Yeah. Mr. Popovic, just to follow up on that comment
you just made, I'm showing you what is up on the screen there; is the depiction of the layout of your unit on the first floor, correct? A. Q. Yeah, yeah. Okay. That's how your unit is arranged? That's correct.
So explain to me, you said when you smoke
inside the unit, you didn't smoke on the second floor at all? A. Q. That is what you are saying? No, never. Where on the first floor did you and your wife Let's first start back in Nineteen --
regularly smoke?
like '97 time frame; where were you smoking in the unit? A. We always smoked on the same place. You know,
it's not a big house, so we can choose.
We can move this
or there, and we have our living room, and that's where we usually sit and smoke. Q. A. Q. Okay. So --
If it's not outside. So you would smoke in the living room area where
I have highlighted in yellow upon the screen? A. Q. That's correct. Where is Mr. Schuman's unit in relation to your
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living room? A. Q. A. Q. A. Q. On the other side. Over here? Yeah. Okay. On this side is Ms. Ipolito's unit?
That's right. Am I correct, there's no common -- you don't
have central air conditioning and heating in your unit, do you? A. Q. No. Did you typically smoke with the windows open or
the windows closed? A. Q. A. It depends. Depends on the time of year? Yes, but usually it's either too hot and air
conditioning is working; so, the windows are closed or it's too cold, and the heating is on; so, very often more windows are closed much more than they are open. Q. Okay. Mr. Popovic, does your bathroom -- let me Where is the bathroom, on the first
ask you this first. floor? A. Q. A. Q.
On the 2nd floor. Only a bathroom on the 2nd floor in your unit? Yes. Is there a kitchen exhaust fan over the stove,
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you know, to -- there's some -A. moved in. Q. Okay. And in 1997, '98 time frame, both you and Yeah, there is, but it doesn't work since we
your wife smoked inside, correct? A. Q. Yeah. How many cigarettes a day back in 1997 -- Let's
forget a day; just talk about how many cigarettes a day do you think you smoked in your unit on an average day back in 1997? Let's first talk about you. A. day. Q. A. How many cigarettes in a pack for us nonsmokers? Twenty cigarettes. Canada gets packs with Well, at that time, I was smoking about a pack a
twenty-five cigarettes, but it's twenty-cigarette packs, and I smoked a pack a day for years. Q. A. Q. A. For how many years? For many years. Many years? Okay. Probably I smoked between five or seven,
eight at home. Q. Okay. Were you always smoking inside or
dependent on the weather? A. Depending on the weather, we spent a lot of time
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outside. Q.
We used to spend a lot of time outside. On an average day, you would smoke five to six That's what you are saying?
cigarettes at home. A. Q.
At that time, maybe seven. Okay. THE COURT: Five to seven.
BY MR FISHER: Q. What about your wife? I'm talking about the
same time frame, '97, '98? A. She was always smoking a little bit less than
me; so, couple of cigarettes less than that, and she was smoking her daily average is less than mine because she doesn't want to go out of her college where she is teaching, and to leave her office, whatever, and students to just smoke one cigarette, and run inside; so, she didn't carry cigarettes to her work. Q. And so if I understand that typical smoking
habits back in '97, '98, for you and your wife typically, when you would light up to smoke a cigarette, your wife would smoke with you? A. together. Q. And you would sit or be in your living room at Yeah, not every time, but we would smoke
times, and other times be outside, correct? A. Yeah.
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Q.
And in '97, '98, after GHI had come in to do the
sealing in your unit and you heard testimony they wanted -- went into Ms. Ipolito's unit; the fact they went into Mr. Schuman's unit, were there any other complaints you heard after 1998, let's say, up to 2009 from Mr. Schuman? A. Q. No. When Mr. Schuman had concerns, did he hesitate
to ever raise them with you at any time during the fourteen plus years you have lived next to him or would he easily communicate issues to you if he had some issues? A. I think our relations were quite normal, quite
common; so, I wouldn't think of any reason why he wouldn't come and tell. Q. A. Q. In fact -During those years. In fact, in '97 and '98, when he had complaints
about your smoking, he was pretty consistent in contacting you by letter? A. Q. A. Q. Yeah. About those issues, correct? Yes. And then after around November of '97 when
Martel Labs had come in shortly after that time, am I correct in saying you didn't hear -- you didn't have
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anymore letters from Mr. Schuman about -A. Q. That's correct. That's correct.
That's why you said earlier in your testimony Is that
that we were there 12 years without a problem? what you are talking about? A. Q. Yeah, yeah. Okay.
You have indicated in Court today that
you smoke only, I think you said, two cigarettes? A. Q. A. Q. Last couple of months, one or two cigarettes. You are smoking that outside? Yes. And, obviously, that means that you have
decreased your level of smoking at home? A. Q. A. Q. Significantly. Are you still a pack-a-day smoker? No. You can explain -- I don't know if it was asked,
gradual -- tell me, in 1998, you were smoking a pack a day. When did that decrease, and tell us how that
progressed? A. That started to decrease after this lawsuit and
actually after my wife was diagnosed. Q. So you were a pack-a-day smoker, yourself, up
until what time period? A. Until March last year.
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Q. A. Q.
Until March of 2010? 2010. Okay. So in March of 2009, you were still a
pack-a-day smoker? A. Q. Yes. In January 2009, your wife is still smoking a
little bit less than you? A. Q. Yes, that's correct. Okay. But in January of 2009, you and your wife
received a letter from Mr. Schuman complaining about smoking again, isn't that correct? A. Q. That's correct. Do you know why Mr. Schuman contacted you in
January 2009 after all those years of not hearing from him about the smoking? A. I don't know. And because not -- it was
occasional smoke in last couple of years, of the last couple of weeks, and we automatically connected that letter with his adaptation works in his unit. That was
logical especially because my wife and myself are graduated architects, you know; so, we automatically connected this complaint with some what had been work before in his unit. Q. Mr. Popovic, how did you first become aware that
Mr. Schuman made renovations to his unit?
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A.
Well, I have seen workers coming.
I have seen
workers bringing various materials, and I heard the works are going on. But to be honest, I didn't take care. I
didn't complain about that. of view. Q.
Absolutely okay from my point
Mr. Popovic, I'm showing you what was previously This is the
introduced as Plaintiff's Exhibit No. 23.
letter that you and your wife received from Mr. Popovic -excuse me -- Mr. Schuman in January 2009, January 4th, 2009, correct? A. Q. A. Q. Yeah, that's correct. And this is? First after 13 years. And you have actually just said a moment ago Talking
that -- you talked about the occasional smoke. about the language of this letter? A. Q. A. Q. A. Q. A. Q.
Last couple of weeks, I think it says. It says, "Over the past several weeks"? Several weeks. "On occasion"? On occasion. "Cigarette smoke"? Yeah. "Has been entering my apartment from the side
closest to your unit"?
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A.
Yeah, so I mean it doesn't say last several It says last several weeks.
years or last 13 years. Q.
And this is a letter that you and your wife sent
to Mr. Schuman in response, which is Plaintiff's Exhibit No. 24, is that correct? A. Q. A. Yes. Which is actually the very next day, correct? That's right. That's right, first week?
At first, we couldn't believe what is going on, and then we answered. Q. On January 16th, 2009, I'm showing you what has Again, this
been marked as Plaintiff's Exhibit number 25.
is another letter that you and your wife sent to Mr. Schuman, correct? A. Q. Yeah. What is this letter referring to? Let me read the contents. Says they
sealed again.
"I want to
inform you that GHI Service visited our house on January 13th. They sealed again all walls toward S and Q units We also
and did additional sealing towards your unit.
bought a new air filter double in size and power than the old one." Now, "the old one," you are talking about the one you bought back in '97? A. Yes.
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Q.
Because at that time you had bought a unit to
try to work to resolve the problem? A. Q. A. Q. Yes. So now you went out and bought a bigger one? Yes. You say here, "I hope this will solve the
problem of cigarette smoke"? A. Q. That's correct. So in January 2009, just within a few weeks
after Mr. Schuman raised this complaint to you, you and your wife acted pretty quickly to try to resolve it, right? A. Q. about. Yes. GHI acted pretty quick.
And that's something I was just going to ask you So GHI was pretty responsive, themselves, to
Mr. Schuman's complaints? A. Q. Yeah. And did you stop GHI from coming into your unit
to take action to do sealing? A. Q. to help? A. Yes, that's correct. MR. FISHER: 68 in the documents. If you could refer to Exhibit No. No. As a matter of fact, you encouraged them to try
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THE COURT: MR. FISHER:
How much longer do you anticipate? Five minutes, no more, Your Honor.
BY MR. FISHER: Do you recall, it's a letter dated October 11th,
Yeah. You and your wife -- looks like signed by your
wife, but this is something that you're familiar with as well? A. Q. Yes. This is the letter you sent to Suzette Agans,
President of the GHI, correct? A. Yes. MR. FISHER: THE COURT: Your Honor, move 68 into evidence? Any objection to 68? We do because it's already been
MR. SZYMKOWICZ: admitted as -MR. FISHER:
I do that again?
I apologize.
What exhibit number is it? been admitted, October 11th. Is that it? Yeah.
I didn't believe this one had No -- yeah, it is Number 40.
BY MR. FISHER: So Plaintiff's No. 40, which is also 68 in front
of you, in this letter, you and your wife refer to, you know, the actions that have taken place to try to seal the
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unit, correct? A. Q. Yeah. And, again, I think here, you and your wife
acknowledge the cooperation and efforts by GHI and its staff, is that right? A. Q. That's right. So, again, here, like in 1997 and '98, you
believed in 2009, again, GHI was pretty responsive and reasonable from how they responded to the issues? A. Q. That's correct. You didn't have any problem or issues with what
GHI did to help to try to solve the problem between you and your neighbor? A. Never. MR. FISHER: may be finished. No further questions, Your Honor. THE COURT: Mr. Popovic, do you have anything Court's indulgence, Your Honor? I
you wish to supplement based on the questions by either Mr. Szymkowicz or Mr. Fisher? THE WITNESS: No, Your Honor.
But if I might add something about the claim that this is nuisance. THE COURT: THE WITNESS: Nuisance? Nuisance.
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Go ahead. I think if everybody is sure that
this is nuisances, specially Mr. Szymkowicz, we wouldn't be here. The case would be closed long time ago if
everybody was sure, but I believe that it cannot be nuisance. First, it can't be nuisance for eight years of
history of settlement in which lives a lot of smokers; then smoking is a nuisance in smoking community is absurd, I think. I understand nuisance, smoke's nuisance in
nonsmoking apartment building or nonsmoking community, but in smoking community? Of course, I know and I believe that all the things are relative. Even from that point of view, and we
all agreed that music and noise might be nuisance, but if you mentioned that to somebody from New York, and next lawsuit of the noise or loud music, they would send you to a shrink, I suppose, or to some village in Minnesota. But if I may, with your permission, show another possible example of nuisance, Your Honor. I have cassette
recorder here; like you just to hear something. (Tape playing.) (Tape not playing). THE WITNESS: from zoological garden. Your Honor, it's not recording It's recording from my wife's
sleeping room, and that's the sort of thing happens when
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your first-door neighbor buys a dog, and that dog is most of the day alone, and what has dog got to do when it is alone and -MR. SZYMKOWICZ: Your Honor, I object to this.
The Schuman's dog is not at issue in this case; never been a claim. This tape has never been produced to us in
discovery. THE COURT: This is beyond the scope of the
Cross-Examination, but I understand your point. MR. SZYMKOWICZ: be stricken? MR. POPOVIC: Hazardous for health, also, Your So I would ask that this entire
Honor, when you have serious ill person in your home; so, there are different kinds of nuisances and hazards. That's all. THE COURT: Thank you. I have a few questions, Your
MR. SZYMKOWICZ: Honor.
RECROSS-EXAMINATION. BY MR. SZYMKOWICZ: Q. cancer? A. Q. Yeah. Do you think it's reasonable for Mr. Schuman to Do you agree that secondhand smoke causes
live next door to somebody who smokes where that smoke
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comes into his unit bringing carcinogens with it? A. Q. A. Q. A. You mean smoke or scent of smoke or what? Everything, smoking in general? Everything? Everything. Well, it's as reasonable as drinking tap water,
for example. Q. Do you agree that along with the the scent of
smoke comes carcinogens? A. Yeah. Carcinogens are coming from various
sources also. Q. Did you have prior knowledge of the fact that
Martel Labs would be visiting your house to test for the presence of carbon monoxide back in 1997? A. I think that we were informed that they are
going to come. Q. The seals that GHI placed in your apartment back
in the Nineties were not affected by any of Schuman's renovations, were they? A. be. Q. A. How could that have been? For example, if you work something on this side Not that I know; that I'm aware of. They might
of the wall, the plaster on the other side could come down, for example, if you are hammering the wall because
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of something or whatever; so, I'm not aware of anything happened on our side of the wall with seals, but it might have happened. Q. You are trying to cut back on your smoking now,
aren't you? A. Q. smoking? A. I'm not trying. I decreased my smoking. I kept Not now. In the last -- what was the question?
Are you trying currently to cut back on your
my smoking -Q. You cut back some of it, correct, but you
haven't gone down to being a nonsmoker? A. Q. No, I'm not. Are you trying, at this point in time, to become
a nonsmoker? A. No, I'm not because this time is not convenient
for smoker to quit smoking, for me. MR. SZYMKOWICZ: Your Honor. THE COURT: MR. FISHER: THE COURT: THE WITNESS: THE COURT: of 2:00, I suppose. Anything else? No, Your Honor. Thank you, sir. Thank you, Your Honor. All right. We'll be back around ten I have no further questions,
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THE BAILIFF: ten of 2:00.
This Court will stand down until
(Recess - Lunch). (Court adjourned for the day due to earthquake.)
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REPORTER'S CERTIFICATE I, Diana L. Wakefield, an Official Court Reporter for the Circuit Court for Prince George's County, Maryland, do hereby certify that I stenographically recorded the proceedings in the matter of David S. Schuman vs. Greenbelt Homes, Inc., et al, Civil Action Law 10-06047, on August 23, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers one through 152 constitute the official transcript of the testimony of the witnesses as transcribed by me from my stenographic notes to the within typewritten matter in a complete manner to the best of my knowledge and belief. In Witness Whereof, I have affixed my signature on this the 19th day of September, 2011.
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REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Trial Before the Court) VOLUME VI OF VII Upper Marlboro, Maryland Monday, September 12, 2011
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Diana L. Wakefield, RMR Official Court Reporter P.O. Box 401 Upper Marlboro, Maryland DARKO POPOVIC, PRO SE For the Defendant GHI: JASON FISHER, ESQUIRE DIANE KILCOYNE, ESQUIRE APPEARANCES: For the Plaintiff: J. P. SZYMKOWICZ, ESQUIRE RITA TURNER, ESQUIRE
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T E M P O R A R Y PLF'S WITNESSES Frank Gervasci Carolyn Hammett Kevin Hammett Dory Ipolito David Schuman David Schuman Gretchen Overdurff James Repace James Repace DEFENSE WITNESSES Alfred Munzer Ronald Gots Sylvia Lewis Tokey Boswell David Schuman Darko Popovic PLF'S REBUTTAL Gretchen Overdurff David Schuman James Repace 6-17 6-24 6-30 3-137 4-32 4-150 5-7 5-78 5-110 Direct 1-25 1-91 1-114 1-133 1-203 2-6 2-122 2-185 3-7
I N D E X
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . . . . . . . . . . . . . . . . . . . . .
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P R O C E E D I N G S THE DEPUTY CLERK: Greenbelt Homes. MR. SZYMKOWICZ: Good morning, Your Honor. J. CAL10-06047, Schuman versus
P. Szymkowicz and Rita Turner on behalf of Mr. Schuman, who is present. MR. FISHER: Good morning. Jason Fisher. With
me is Diane Kilcoyne with my office on behalf of Greenbelt Homes, Inc. MS. KILCOYNE: MR. POPOVIC: Nice to see you, Your Honor. Good morning, Darko Popovic, pro
MR. FISHER:
Again, Your Honor, Gretchen
Overdurff is here for Greenbelt Homes. THE COURT: Ready for rebuttal? We have a Motion to Strike two
MR. SZYMKOWICZ:
of the Defense's objections; that's going to the membership defense and the statute of limitations. Nowhere in GHI's either original interrogatory responses nor their amended interrogatory responses did they discuss either one of these defenses, and I have copies of these right here. Furthermore, we took the deposition of Gretchen Overdurff slash GHI, Sylvia Lewis and Tokey Boswell, and in those depositions, they don't talk about any failure to
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exhaust administrative remedies, his failure to go to the Board and ask for clarification, et cetera. They never
stated that he could have taken his grievance to the membership or that Mr. Schuman's claims were barred by the statute of limitations. In fact, Mr. Boswell was asked at deposition, quote, "What were the options presented for Mr. Schuman to deal with this problem after the Member Complaints Panel exercised its function?" end quote. To which he responded, quote, "I don't think I'll be able to remember everything that we talked about at that point in time. I know that there were several
options; one obviously is that Mr. Schuman could leave the community. Another is that he could reseal his unit after A third was that he
he had performed the construction.
could continue direct conversations with the Popovics." Additionally, Sylvia Lewis was asked, at deposition, quote, "Who is charged with the task of determining what is objectionable conduct and what is not under the MOC?" To which she responded, "That would be the Board." If I may approach, Your Honor. discovery responses here. Ms. Wakefield, for the page and line number for I have GHI
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the Boswell transcript, it was page 29 to 30, and for the Lewis transcript it was page 27. MR. FISHER: THE COURT: MR. FISHER: Your Honor, may I be heard? Sure. Your Honor, I believe this
objection was raised during the trial, itself, when we were at the bench. First of all, I believe it's a little
bit unorthodox to him to move to strike an affirmative defense; certainly, can argue at closing, but with respect to this issue, the affirmative defense statute of limitations is a legal issue and, Your Honor, in our answer, we did raise the defenses that we are asserting in this case specifically; so, again, I think the answer covered us in terms of the statute of limitations. an affirmative defense. to the complaint. Your Honor, we have also argued to this Court, throughout the case, equitable arguments defenses of latches as well as waiver, Your Honor, and again, I think it's a bit unorthodox to be arguing this now before the Court; however, Mr. Schuman -- was necessary to anticipate what my arguments will be in closing; so, I give him credit for that. There's no question that we raised these It's
We have raised it in our answer
defenses in our answer. He had the ability, during deposition, to ask
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questions with respect to the defenses that are raised, and he chose not to do so. Again, some of these arguments are legal arguments to which the fact witnesses, themselves, may or may not have been in a position to discuss what they discussed with me as Defense Counsel getting legal advice in terms of what I had raised at trial. In fact,
Mr. Schuman and his Counsel are now trying to assert we were surprised by this. That's a little bit, I think,
farfetched, Your Honor, especially in light of this case. There's never been a question, and you know, again, Your Honor, I think that the defenses, to the extent that we have proven them, which we will argue in closing when we get to that point in this trial, Your Honor, it will be up to Your Honor to determine whether we have proven those defenses. With respect to the other defenses, those go on the elements of their claims; so, again, Your Honor, I don't think any motion is appropriate at this time; should be denied. MR. SZYMKOWICZ: Your Honor, specifically, we
asked in Interrogatory No. 5, "State each fact upon which you rely in defense of the Plaintiff's claims. The facts
which would indicate a statute of limitations problem was: Mr. Schuman knew of the problem in 1997, whatever; didn't
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do anything until 2010 or whenever he filed his case. The second thing, on the motion, on the going to the membership argument, they never addressed in their answer to interrogatories this going to the membership possibility that Mr. Schuman had, allegedly; so, therefore, you know, we had no reason to go into this because we have a right to rely on their interrogatory responses. They never amended it to reflect that. They
amended it for other reasons, but they never amended it for that. We were totally ambushed by this whole line of
argument at trial, and therefore, I think justice dictates that these two defense, that's going to the membership defense and statute of limitations defenses, be stricken because of the failure to address these in discovery. THE COURT: I'll reserve at this point. You can
certainly reargue again at the end of all of the evidence. I got a lot of stuff to still review; so, I'll reserve at this point. MR. FISHER: Your Honor, I also would note, at
the preliminary injunction hearing, Mr. Schuman did testify at the preliminary injunction hearing before the Court; during his testimony, based upon my questions, he specifically talked about the issue of going to the membership for purposes of modifying the rules. He was
aware of it back then; has been aware of it the entire
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case; that is an issue in this case. MR. SZYMKOWICZ: I believe that misstates
Mr. Schuman's testimony, but further, before we get into the testimony, Your Honor, we renew our motion. I notice that there's a bunch of people from the general public here, bunch of Police Officers. certainly don't want to be here. We are going to try to get through our rebuttal cases as fast as we can; however, we do have that motion to postpone our closing argument until after the transcript is produced. Mr. Schuman paid Diana Wakefield They
$4,000.00 as we were running out of the Courtroom on earthquake day. Ms. Wakefield is preparing that
transcript; so, we ask, at the conclusion of our rebuttal case, which we are only going to have three witnesses, that we break, we have the transcripts prepared, and then the Court allows us to propose findings of fact and conclusions of law based on the transcript, and then we come back from the closing arguments. THE COURT: I was going to ask about that. We
had originally anticipated we would finish the case a couple of weeks ago, and then if, in fact, we wanted to follow this; go this route, we need some time for the transcript. work. We have added a couple of weeks inbetween
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MR. FISHER: issue again?
Your Honor, may I be heard on this
Your Honor, the first time this came up -- I'll assert it again with a little bit more vigor, Your Honor, we have had several weeks since this case -- since the first five days we were here for trial. Your Honor, I
think, No. 1, it is highly unorthodox to say let's not conclude our trial. of closing. Let's delay it yet again for purposes
I have no wishes, Your Honor, with respect to
Your Honor taking this case under advisement, which you certainly may based upon everything you have heard over the course of what will be six days, but, Your Honor, trial is trial. You present your evidence, you hear
argument; then you make your closing. If Madam State, in prosecution of her case, had to do that every single time, judicial resources, not to mention the taxpayers' money, would be wasted in this case. Your Honor, my client is extremely
prejudiced by the fact that he wants to, again, delay the conclusion of this trial so he can have more time to review a transcript. during trial. Your Honor, trial lawyers take notes
They prepare their arguments for closing. With all due respect to Transcript or
That's what trial work is.
Mr. Szymkowicz, we have had several weeks.
no transcript, I sat in this courtroom the entire time and
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can recall the facts that I need to argue my case. matter of fact, Your Honor, the delay gave me the opportunity to go back over my notes even more specifically; so, to delay the closing is highly
As a
prejudicial to my client, prejudicial, I'm assuming, to Mr. Popovic as well. It's time. It's expense. If he
wants to submit a post-trial brief to this Court, he can certainly ask the Court for that permission. Honor, I don't think you even need that. Again, Your
Assuming he
wants to make legal argument, allow him to submit a post-trial brief, but to delay the closing arguments, Your Honor, I think is highly prejudicial and should not be granted. THE COURT: My anticipation, at this point, is
that I'm going to take it under advisement, and if you want to file something during -- during that time, that's fine. In the last couple of weeks, this is my working
file that I have taken home, and I have pretty much gone through lots of it. exhibits. I got more to do. I didn't take the It's
I didn't take all the exhibits home yet.
going to take me some time to finish going through all these exhibits. I want to make sure I read every one of
them; so, it's going to be some time. If you want to file something on your own, that's fine too. Can't stop you from filing anything.
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Kind of where we are. MR. SZYMKOWICZ: Again, Your Honor, there's no
reason to delay the argument. THE COURT: You can have argument; if there's
something you forgot, put it in a post-trial brief. That's fine. MR. SZYMKOWICZ: The only problem that we have,
Your Honor, is that Mr. Schuman is going to be out of the country until October the 16th; so, we would ask that I not have any brief due until a week after that because, you know, that way Mr. Schuman has a chance to review what I do. He's a lawyer. And if I go to the alleged inconvenience to GHI and Mr. Popovic, Mr. Popovic is going to be living in a house where there's no Mr. Schuman next door; so, presumably, he's going to do whatever he wants to do. isn't affected by any delay. harm. GHI
They are not suffering any
The only person that suffers any harm is The delay to
Mr. Schuman while this case is going on.
the -- practical matter, would seem to enure to the benefit of the Defendant. MR. FISHER: case. Your Honor, typically, that's the
As we have seen in this case, the delay in this
case results in Mr. Szymkowicz filing all types of things; requires expense and response. Again, we keep hearing
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delay.
Mr. Schuman brought this case seeking immediate
injunctive relief initially; now he wants a permanent injunction; keeps wanting to delay the case, but the prejudice to my client here is the expense, and Your Honor, as I'm sure the Courtroom is well aware, those -have been in here now for the sixth day. Let's just bring
this thing to a close, and let Your Honor make a decision. Let the chips fall where they may. Delaying the case
further for those type of issues I think is a little bit ridiculous. Mr. Szymkowicz can certainly prepare and file Again, Your You have I
whatever legal documents need to be filed.
Honor, you have it all on the record already.
several legal motions that have already been filed. don't know what else the Court would need, but again,
Mr. Szymkowicz has that right to take it under advisement; file post-trial motion's; post-trial briefs. To continue
to delay it another 30 days, I think that's a little bit extraordinary. THE COURT: the day. MR. SZYMKOWICZ: record, Your Honor. I would like to correct the We'll see where we are at the end of
Mr. Schuman wanted this case over a Every Plaintiff does. We
year ago when we filed it.
didn't try to delay this case. THE DEPUTY CLERK: These, you gave me courtesty
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copies? MR. SZYMKOWICZ: THE COURT: Court's copies.
They are not exhibits or anything? (Shakes head from left to
MR. SZYMKOWICZ: right).
Motion to Strike the defense of going to the membership, I couldn't figure out any better way to -THE COURT: Failure to exhaust. Failure to exhaust
MR. SZYMKOWICZ:
administrative remedies would be another name for it. THE DEPUTY CLERK: MR. SZYMKOWICZ: THE DEPUTY CLERK: written motion? MR. SZYMKOWICZ: believe. (Off the record discussion ensued.) MR. SZYMKOWICZ: MR. FISHER: We'll call GHI as a witness. That was a written motion, I What was the other one? Statute of limitations defense. Postpone closing, was that a
I assume you are calling
Ms. Overdurff subject to subpoena previously? MR. SZYMKOWICZ: I'm calling GHI.
I don't know who you are going to produce as GHI. If it's Ms. Overdurff, it's Ms. Overdurff. We
issued a subpoena against GHI. be the one that testifies then.
Ms. Overdurff is going to
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MR. FISHER:
The subpoena issues specific Trial
purposes the corporate designee -- excuse me. subpoena.
Ms. Overdurff has been the one designated to
the issues in that subpoena. THE COURT: Okay.
(Witness sworn). THE DEPUTY CLERK: Thank you. You may be
Please state your first and last name; spell them for the record. THE WITNESS: Gretchen Overdurff,
G-R-E-T-C-H-E-N, O-V-E-R-D-U-R two Fs as in Frank. THE DEPUTY CLERK: Thank you.
GRETCHEN OVERDURFF, a witness produced on call of the Plaintiff, in rebuttal, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: GHI would agree that the provision in its
governing documents to the member to take a concern to the general membership is limited to situations where a particular member wants to change a rule or policy that affects the general population as opposed to a dispute between one member and another member, would you not
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agree? MR. FISHER: Your Honor, with all due respect, These are rebuttal
I'm going to have to object. witnesses.
It's my understanding Ms. Overdurff testified I'm not sure with
in Mr. Szymkowicz' Case In Chief.
respect to where we are going here; how this relates to rebuttal. Been Cross-Examination; been testimony already.
I'm not sure exactly how this relates to rebuttal. MR. SZYMKOWICZ: Your Honor, I believe that
Gretchen testified first, and then we had Sylvia Lewis, and Tokey Boswell brought up things. GHI on the record. THE COURT: pending question. THE WITNESS: Could you restate the question? I'll certainly allow that question, I'm trying to get
BY MR. SZYMKOWICZ: Q. You would agree that the provision in the GHI's
governing documents for a member to take a concern to the general membership is limited to situations where a particular member wants to change a rule or policy that affects the general populace as opposed to a dispute between one member and another member, would you not agree? A. My understanding is that a member can take
anything they want to the membership by way of a petition.
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Q.
But it's not a subject where a member has a Isn't the true policy
complaint against another member?
of this taking it to the membership argument that you take something -- something to the membership where you want to change a rule in general; not a rule specific to one person; not a grievance one neighbor has with another neighbor? MR. FISHER: Objection, Your Honor, to
Mr. Szymkowicz' characterization of taking to the membership argument. asserted. THE COURT: THE WITNESS: Go ahead. You can answer. I don't believe that's been
I'm not aware that -- of the
situation where something was taken to the membership with a grievance of one member against another. BY MR. SZYMKOWICZ: Q. Are you aware of any time when GHI, itself, had
a problem with one of its members where it took a complaint that it had against a particular member to the membership at large as opposed to taking some other action? A. Q. A. I don't recall. It never happened, did it? There were -- there was at least one situation
that involved a termination, and that was about one member
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against another. Q. But that was on the appeal of somebody that had
been terminated, where they took it to the membership, correct? A. Q. Yes. It wasn't somebody in Mr. Schuman's shoes where
he's saying to GHI that another member is causing a nuisance or violating the rules, correct? A. Q. I don't recall. So it was only the person that their membership
was terminated that took something to the Board, correct? A. Q. A. Q. I believe so. I'm sorry; took it to the membership, correct? Yes, I believe so. GHI has had several disputes with members over
the failure to pay dues, correct? A. Q. Yes. And GHI doesn't take those disputes to the
membership, does it? A. The documents allow that to be handled by staff;
not a matter that would go to the membership. Q. So it doesn't go to the membership because it It's
doesn't involve the entire membership, does it?
GHI's complaint that somebody didn't pay their bill to GHI, correct?
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A. Q.
This is true, but if a -Thank you. If a particular member has a dirty yard, for
example, GHI would take the dispute to the Member Complaints Panel, correct? A. Q. A. Q. It could ultimately. Just like Mr. Schuman did, correct? It could, yes. And the only way it would ever get to the
membership at large is if the person was found to be in violation and their membership terminated, correct? A. Q. Restate the question, please. If somebody had a dirty yard, GHI could take its
own complaint to the Member Complaints Panel, correct? A. Q. Yes, it could. And then if GHI won, then that person would have
a right to petition the entire membership, correct? A. hearing. Q. The next step would be to go to an informal Several steps. So if there was a formal or informal hearing,
and the person found to be in violation because of their dirty yard, and they had their membership terminated, only then would the person -- would the person have the right to go to the membership, correct? A. If they were terminated, but there were steps
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before that that would be taken. Q. Obviously, you go through all the procedural If a person's rights
steps, the administrative remedies.
to live in GHI were terminated, that person would have the right to petition the membership for relief, correct? A. Q. Yes. But GHI has never, in any case, taken their
defeat -- if they brought a claim against a particular member, they have never taken that to the membership at large, have they? A. Q. I don't believe so. I don't recall.
In the case of nonpayment, GHI just simply filed
suit against the members in Court, correct? A. Q. Correct. They didn't go through any of these Member
Complaints Panels or taking something to the membership, did they, in those cases? A. No, no, the documents aren't set up to go
through that. MR. SZYMKOWICZ: THE COURT: I have no further questions.
Mr. Fisher. CROSS-EXAMINATION
BY MR. FISHER: Q. Ms. Overdurff, Mr. Szymkowicz cut you off before
when you were responding to a question with respect to
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explaining the process.
Want to complete that thought.
If you recall, the question related -- he asked you with respect to whether or how someone takes something to the membership that they believe was an inappropriate action by GHI, how would that work? A. The member can request an item be placed on the
next meeting agenda with the petition of ten signatures. Q. So just ten signatures would be required for
that type of thing? A. Q. That's correct. Okay. And here, based upon your understanding
of what occurred, essentially Mr. Schuman ultimately, by asking GHI to enforce, was basically saying that we want you to have him terminated as a resident if he doesn't stop smoking, correct? A. He did not ever state that that was his desire,
but he did want the Board to go the distance, and so that would have been then, the ultimate resolution if the Board were to take action. Q. That was Mr. Boswell. You were present in Court
for Mr. Boswell's testimony? A. Q. Yes, I was. So that was where Mr. Boswell had discussed
their considerations, the memberships' opinion, and how far it might go if they terminated Mr. and Mrs. Popovic's
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membership, correct? A. Yes. MR. FISHER: THE COURT: No further questions. Anything based on that? No, Your Honor. You may step
MR. SZYMKOWICZ: THE COURT: down. MR. SZYMKOWICZ: THE DEPUTY CLERK: (Witness sworn). THE DEPUTY CLERK: seated.
Thank you, ma'am.
Next witness, Mr. Schuman. Raise your right hand.
Thank you.
You may be
Please state your first and last name, and spell them for the record. THE WITNESS: S-C-H-U-M-A-N. THE DEPUTY CLERK: Thank you. David Schuman, D-A-V-I-D,
DAVID SCHUMAN, a witness produced on call of the Plaintiff, in rebuttal, having first been duly sworn, was examined and testified as follows: BY MR. SZYMKOWICZ: Q. Mr. Schuman, we are in rebuttal testimony, so
our focus is going to be very limited here to save time for the people waiting to have their cases heard.
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There has been lots of testimony about you and Ms. Ipolito just closing your windows when Mr. Popovic smokes outside. work or not? A. I don't really consider that to be a solution to First, when we are Have you ever determined if that would
the problem because several reasons.
required to run around and close our windows as soon as we smell Mr. Popovic's smoke, the smoke is already present in the unit, and it's not possible to get rid of the smoke by closing the windows. Smoke is already inside.
Secondly, we can't always close our windows because the weather conditions don't allow it. Certainly
not every day, but when the power was out from recent events, we couldn't close our windows. It would just have
been intolerable to stay inside with the windows closed and no power; so, we had the windows open. house fills up with smoke. Of course, the
Lastly, I think I have said
this already; we don't think we should have to run around and close our windows whenever Mr. Popovic decides to smoke. Q. A. Q. You are a lawyer, correct? Yes. Can you tell me what -- how you interpretedf at
the time the phrase, exhaustion of administrative remedies?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
MR. FISHER: THE COURT: THE WITNESS:
Objection, Your Honor. Go ahead. In short, it is a principle that
wants people to make sure they take all steps that they can possibly take before having to go to Court. very conscious of that in this case. BY MR. SZYMKOWICZ: Did GHI ever tell you, during any point in this I was
entire process before we got to Court, that you had the ability to take this matter to the general membership? A. Q. They did not. Did you review any of the GHI governing
documents about such a thing after you have heard their -GHI'S exhaustion of limits administrative remedies defense? A. I looked very carefully, again, at the Members
Handbook, and I recall looking at it extremely carefully during the process to see what my options were. As I have said many times, I very much did not want to be here in Court. I wanted to make sure that I
had taken every step that I could have taken with the cooperative. Q. Did there come a time when you tried to
ascertain with GHI whether you had exhausted your administrative remedies?
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A.
There was.
I sent them a very specific letter.
I think the language I used was, Is this the final action of the cooperative? And to which they responded, The Board regrets it can do nothing for you in this case. I took that to be the exhaustion of my administrative remedies. Q. I'm showing you what has been marked as Exhibit
No. 38, which is admitted as Plaintiff's Exhibit No. 38. Have you ever seen this document? A. Yes, that's the letter I was referring to, I It says in here, Both the Popovics at that
believe, November 30th, 2009. Mr. Popovic continues to smoke. point continue to smoke.
"I would appreciate your
clarification as to whether Ms. Agans' letter, dated October 8, 2009, is, A, the final action of the cooperative or, B, whether a formal hearing is available?" Q. letter? MR. FISHER: Objection, Your Honor. We heard And did anyone from GHI I respond to that
this testimony, if Your Honor can recall, and actually this document was referred to, and Ms. Agans' letter was referred to. Ms. Overdurff's letter was referred to. Sounds more like argument. Your Honor, we are in rebuttal.
THE COURT:
MR. SZYMKOWICZ:
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They made this claim they brought up for the first time during this trial; so, I think we have the right to go into it. MR. FISHER: THE COURT: MR. FISHER: options and found out. THE COURT: response is in. That letter is in evidence, and the Your Honor, the evidence is in. What new evidence is there? Well, that he investigated his
Their response is in evidence, is it not? Yes, the response would be
MR. SZYMKOWICZ:
Exhibit No. 39, where Ms. Overdurff stated, "The Board regrets there's nothing more it can do for you regarding this matter." BY MR. SZYMKOWICZ: Q. There was no mention, again, at any time, that
you had the right to bring this to the Board, correct? A. Q. To the membership, there was none. And in reviewing the governing documents of GHI,
can you tell me how you interpret the Mutual Ownership Contract with respect to presenting something to the Board? MR. FISHER: Your Honor, again, object. We have been over and over
Document speaks for itself. this already. THE COURT:
I don't think his interpretation is
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the issue.
I'll sustain that.
My belief he's not being
called as an expert at this point? MR. SZYMKOWICZ: No.
BY MR. SZYMKOWICZ: Q. Do you have any belief as to whether you have
the right to bring your grievance against Mr. Popovic to the Board? A. I believe I did not have the ability to bring my
grievance to the Membership because my understanding of the member complaint process in the handbook is that that's only done when the membership is terminated. MR. SZYMKOWICZ: To correct the record, I meant
instead of "the Board," I meant membership. I have no further questions. THE COURT: MR. FISHER: THE COURT: Cross. No questions, Your Honor. Thank you, sir. Mr. Repace.
MR. SZYMKOWICZ: (Witness sworn). THE DEPUTY CLERK: seated.
Thank you.
You may be
State your first and last name and spell them for the record. THE WITNESS: Repace, R-E-P-A-C-E. My name is James, J-A-M-E-S,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q.
THE DEPUTY CLERK:
Thank you.
JAMES REPACE, a witness produced on call of the Plaintiff, in rebuttal, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: Can you tell me if the 2006 and 2010 Surgeon
General's Reports on secondhand smoke have a regulatory or scientific focus? A. They very definitely have a scientific focus.
They are not regulatory documents nor does the Surgeon General have any regulatory role in secondhand smoke whatsoever. Q. And how do you know this? MR. FISHER: Your Honor, I'm going to object.
I'm not sure, No. 1, this goes to rebuttal; No. 2, this is really relevant to the case, Your Honor. THE COURT: I'll allow it.
BY MR. SZYMKOWICZ: Dr. Gots testified to regulatory matters? Yes. No, this is not a regulatory document. The only
agency of the federal government that might have the regulatory role in patrolling secondhand smoke; that would
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be specifically in workplaces, would be OSHA. The Environmental Protection Agency only has an advisory role, and the Department of Health and Human Services simply has a function to do research in public health and to make proclamations. regulatory role at all. Q. So what do you believe that the focus of this, They don't have any
the Surgeon General's Reports, on secondhand smoke to be? MR. FISHER: THE COURT: THE WITNESS: focus. BY MR. SZYMKOWICZ: Q. The Kolb case, report, rather, do you know if Objection, Your Honor. Go ahead. Said "scientific."
Yes, it's purely a scientific
the authors applied your lung cancer model to the individual claims that -- individual workers injury compensation claims? MR. FISHER: Objection, Your Honor. I don't
see how it's relevant or rebuttal in this case. THE COURT: THE WITNESS: Kolb paper did. BY MR. SZYMKOWICZ: Q. You were in Court when Dr. Gots talked about the If you know, go ahead. Yes, that's precisely what the
Kolb paper, correct?
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A. Q.
I was. And do you believe that Dr. Gots misstated
anything with regard to the Kolb paper? A. I think he misinterpreted it. It was clearly
designed for the purpose of evaluating worker's compensation claims for very specific individuals; not for groups of individuals, but for specific individuals with specific claims. Q. So you believe that your lung cancer models are
applicable not just for wide groups of people but rather they can be applied to one specific person in an individual case, correct? A. Q. case? A. case. Q. A. And what did you do in the Schuman case? I evaluated his lung cancer risks and his heart This is precisely what I did in the Schuman Precisely. What relevance does this have to the Schuman
disease risk from passive smoking infiltration of his house. Q. What is the limit of detection of the Hammond
monitor that you used to measure the presence of nicotine in Mr. Schuman's unit with regard to secondhand smoke that migrated through the walls of Mr. Schuman's unit from the
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Popovic house? A. Q. A. It is .005 micrograms per cubic meter. How do you know this? This was conveyed to me by Mr. Perrino of the
Hammett Laboratory, University of California Berkley. MR. FISHER: Your Honor, I'm going to object on
grounds -- first, I move to strike Mr. Repace's testimony with respect to the limits of detection of the monitor based, apparently, on hearsay. This was also covered
already in Direct, Cross and with Dr. Gots, Your Honor, with respect to this issue. THE COURT: This is not rebuttal. This is
testimony I have already heard. MR. SZYMKOWICZ: No, but, Your Honor, Dr. Gots He's responding to
characterized the limits of detection. this. THE COURT:
What's the new testimony? Well --
I haven't heard anything yet that I
haven't already heard. BY MR. SZYMKOWICZ: Q. Do you believe that Dr. Gots' testimony of the
limit of detection of the Hammond monitor was incorrect? A. Q. I do. How do you differ from Dr. Gots' testimony?
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A.
Dr. Gots implied, in his testimony, that the
limits of detection were much higher than what I claimed they were. Q. A. And how do you know that that's not true? Because the limited detection is variable for It's not variable with respect to
concentration in air.
the amount of nicotine that the monitor can detect, but the limited detection can be very low depending on how long you leave the monitor in place. If you leave it in
place for a week or so, the limit of the detection would be much higher than if you left it in place for a month, as Mr. Schuman did. And if you left it in place for a
year, the limit would still be lower because it would simply collect more air and more nicotine. Q. Dr. Gots handwrote some numbers on the easel,
and there were a lot of zeroes, like billions or millions or something. wrote? A. My recollection is that he attempted to imply Can you recall that specific graph that he
that the nicotine concentration that we measured in Mr. Schuman's house was extremely low, and his argument on extremely low was based on the notion of cigarette equivalence. MR. FISHER: Your Honor, I object. Testimony of
Dr. Gots related to the issue what he was demonstrating;
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not with respect to Mr. Schuman, but explaining to the Court on the graph here with all these zeroes what a microgram is. That's what he was doing; so, I think this
testimony goes beyond what Dr. Gots went into. If you recall, Your Honor, he graphed out how many zeroes a microgram was. THE COURT: That's what he did. This may go more
I understand that.
to argument, and I'll let him testify. THE WITNESS: Yes, this is basically a cigarette
equivalence argument, which was discredited in the 1986 Surgeon General's Report very explicitly in Chapter Four. Said this was an inappropriate way of expressing exposure to secondhand smoke, and it was an inappropriate way of assessing risk from secondhand smoke. BY MR. SZYMKOWICZ: Q. I believe since I don't have the transcript, I Dr. Gots testified
can't state exactly, but basically,
that it would take Mr. Schuman years of exposure to Mr. Popovic's secondhand smoke to even equal one cigarette if he breathed it internally. Dr. Gots testified to? A. That is my belief. MR. FISHER: is not a medical expert. purpose. Objection, Your Honor. Mr. Repace Is that your belief of what
He wasn't admitted for that
We are going down this sliding --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
THE COURT:
I'll sustain the objection to that
question for a variety of reasons. BY MR. SZYMKOWICZ: Do you believe that Dr. Gots' categorization of
the amount of time it would take Mr. Schuman to breathe in one direct cigarette was false? A. What I believe was his implication, that the
risk of the exposure was very trivial because it was very clear that the dose response curve is not linear. Q. How do you believe that the dose that
Mr. Schuman was getting from the Popovic smoking relates to his risks? MR. FISHER: Objection, Your Honor. Again, if
we are talking about risks specifically to Mr. Schuman, he is not admitted for expert testimony with respect to health affects of Mr. Schuman; not to mention the fact, Your Honor, there's no issue here of health risks. THE COURT: THE WITNESS: It's rebuttal. Go ahead.
Dr. Gots drew in graphs on the
easel in which he implied that the risks and exposures were very low based on his graph, and his graph was simply incomplete and misleading. Q. And how do you believe that it was incomplete or
misleading? A. If I could just repeat the graph on the easel,
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I'll be very happy to do that. Q. A. Okay. Horizontal axis here would be exposure, and the And what Dr. Gots' point
vertical axis would be risks.
was, that there was a, basically, what we call a hockey-stick function that the dose makes the poison, and he referred to aspirin, alcohol and water as examples where if you had too much of any of these, they would be toxic. That's certainly true, but that's not the case for He also implied that what I had assumed
secondhand smoke.
was the straight line meeting at the origin, so that even small exposures would correspond to finite risks. And he said there was, basically, no data to secondhand smoke. What he failed to do was to report that
the actual data to secondhand smoke looks like this, and this is true for cardiovascular disease, and it is also true for lung cancer, and there is data up here certainly for smokers, and there is data over here for passive smokers. And so what is very clear, and this was
published in the literature, in the scientific literature, that this curve for both lung cancer and heart disease is super linear, and therefore, even small exposures can correspond to very substantial risks; whereas, very, very large exposures, the risk saturates, and so Dr. Gots' implication -- implication was highly
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misleading. Q. Are you aware of any papers that Dr. Gots has
published regarding secondhand smoke? A. Q. I'm not. And are you aware of most of the papers that are
published in the scientific community on secondhand smoke? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. Yes, I have -- I have a literary
travel service, and I'm very aware of what is being published on secondhand smoke currently. I get reports
every day of the current literature on secondhand smoke, and I have been involved in research on this issue since 1975, and I have in my files every important paper on this issue that has ever been published. Q. Has any legitimate scientist ever published any
paper that supports Dr. Gots' theory of measurement in this case? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. To your knowledge? No. Not to my knowledge.
BY MR. SZYMKOWICZ: Q. Has any legitimate scientist ever published any
paper that supports Dr. Gots' method of measuring this exposure?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. ahead. Q. Q. A. Q.
MR. FISHER: THE WITNESS:
Objection. Not to my knowledge.
BY MR. SZYMKOWICZ: Are you aware -- strike that. Have you reviewed Dr. Gots' CV? I have. And have you reviewed any of the publications
that he published? A. I reviewed their titles. There were none that
were relevant to secondhand smoke. MR. FISHER: Your Honor, I'm going to object. This isn't rebuttal
This is going into argument. testimony about Dr. Gots. THE COURT:
Well, he can certainly question his
credentials and area of expertise. There was testimony that Dr. Gots gave. Go
BY MR. SZYMKOWICZ: Now we are going to get into Dr. Gots' bias.
Are you aware of any connections that Dr. Gots has with the tobacco industry? A. Q. Yes. What are the connections Dr. Gots has with the
tobacco industry? A. His consulting organization receives
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substantial -MR. FISHER: Calls for speculation. No
foundation laid with respect to Mr. -MR. SZYMKOWICZ: He reviews the data. MR. FISHER: Your Honor, he's an expert on He's an expert in this field.
limited issues; not on all those that are out there. THE COURT: in the proffer? What expertise have we heard? Where
I'll be happy to dig it up.
Was there -You can
Well, wait a minute. testify. MR. SZYMKOWICZ: Honor. THE COURT: THE WITNESS: please. BY MR. SZYMKOWICZ: Q. Go ahead.
This is rebuttal.
We are testifying to bias, Your
Absolutely.
Would you repeat the question,
Are you aware of any connection that Dr. Gots
has or had with the tobacco industry? A. Q. A. I am. What are the connections? His consulting organization. MR. FISHER: Your Honor, just for the record, He's not an expert with
I'm going to object again. respect to --
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THE COURT:
This is the rebuttal.
I'm not sure
it needs expert testimony.
Subject to a Motion to Strike,
I'm going to let him attack the bias of alleged bias. MR. FISHER: THE WITNESS: Sure. Thank you, Your Honor.
Yes, his consulting organization
was clearly tied to RJ Reynolds Tobacco; gave his organization lots of money. His director of toxicology
wrote a letter to RJ Reynolds saying that he and Dr. Gots would be very happy to meet with them to discuss what they could do for them. The three of the five members of his
organization, up until Dr. Gots parted ways with them last year, Professor Schwartz, Professor W-I-T-O-R-S-C-H, and Professor Baulter (phonetic), who are on his Advisory Board, were all tobacco industry consultants. Q. A. How do you know that? It was discussed in the United States versus
Philip Morris, et. al. in which those three individuals were specifically called out, and their testimony was discredited because they were paid tobacco industry consultants. MR. FISHER: Your Honor, again, for the record,
I'm going to object; move to strike the entire testimony, Your Honor. hearsay. Calls for speculation. It's based on
Your Honor, the case law he's referring to now,
he's giving his legal opinion on the case law
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interpretation of their weight of the testimony of experts. THE COURT: were discredited. MR. SZYMKOWICZ: Honor. THE COURT: Finder of fact maybe, but this is -But I think when there's a I think that he does, Your I don't know that he knows that they
MR. SZYMKOWICZ:
published opinion that states that, and he reviewed this literature. THE COURT: Do you have the opinion? U.S. v. Philip Morris, U.S.A., It is a 937 page
MR. SZYMKOWICZ:
Inc., 449 Fed Subpoena 2d, No. 1.
opinion by Judge Kessler of the U.S. District Court. BY MR. SZYMKOWICZ: Q. Have you reviewed this decision, Mr. Repace? MR. FISHER: THE COURT: Your Honor -Not a lawyer. He's not a lawyer, but this
MR. SZYMKOWICZ: goes to his -MR. FISHER:
Dr. Gots testified.
Mr. Szymkowicz could have cross-examined Dr. Gots on this opinion; more importantly, Dr. Gots isn't mentioned in this opinion. People he used to work with
are; so, where does this go to the relevancy of this case
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and credibility of Dr. Gots, because he used to affiliate with people referred to in an opinion several years ago in a case he wasn't involved with. MR. SZYMKOWICZ: Your Honor, this goes to bias.
I think Mr. Repace has presented a history, opinions of what he has discovered in the literature, and this case, the Philip Morris case, landmark case in the New York Times, Washington Post, Mr. Repace, if he's reviewed this decision and come to these conclusions about Dr. Gots' bias, I think it's proper here. THE COURT: record. Dr. Gots is not mentioned in the
You can testify to that, and you have that he's
affiliated with these three people, and they were consultants to the tobacco industry and were mentioned in this case, but I think that's about as far as you can go, and I believe you also stated that he disaffiliated himself in some way a year ago. understanding? THE WITNESS: Yes. Is that the
BY MR. SZYMKOWICZ: Q. Mr. Repace, are there any chemicals in
secondhand smoke that do not appear in the environment? A. Q. A. Yes. What are they? Very specifically, they are tobacco specific;
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note those, nitrosamines, and only in tobacco and tobacco smoke. Q. What's the relevance of this finding in regard
to the Schuman case and Dr. Gots' testimony? A. Dr. Gots implied in his testimony that all the
constituents in tobacco smoke also appeared in air, drinking water and in food, but they don't. MR. FISHER: strike his testimony. Your Honor, I object; move to Speaks for itself. I think he
mischaracterizes Dr. Gots' testimony.
He talked about
what types of harmful carcinogen particulates and in other aspects of every day life. He never talked or indicated The nicotine
what Mr. Repace does with respect to that. marker is found in drinking water. THE COURT: make.
And that's the argument you can
I'll let him testify. THE WITNESS: So the clear implication that
Mr. Schuman was exposed to the same chemicals in tobacco smoke in mutual venues when he breathes, when he eats, when he drinks, but that specifically is not the case for the very potent tobacco specific nitrosamines and NNK. They are potent lung carcinogens. Q. Do you recall Dr. Gots' testimony with regard to
the level of risk that Mr. Schuman was exposed to based on Mr. Popovic's outdoor smoking?
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A. Q.
I remember his testimony, yes. And there was a point in time when Dr. Gots
testified, I believe, that the level of particulates were the same as the measurements that you took right here inside this Courtroom with that machine that you had, is that correct? A. Q. Yes. Can you explain how your findings indicate that
Mr. Schuman was exposed to secondhand smoke in his unit despite having the same reading at some point when you turned on the machine here in this Courtroom? A. Yes, the background levels in this Courtroom are
dependent on the background levels from outdoors because the air is pulled into the building from outdoors; has a lot of diesel buses running around, and what I saw in my measurements in Mr. Schuman's unit from Mr. Popovic's outdoor smoking was an increase doubling of the level of carcinogens in both his dining room and his living room, and the levels were different. They were higher in the
dining room, which is closer to Mr. Popovic, and lower in the living room. The absolute value of the carcinogen It was the fact that
levels was not what was important.
the relative values changed, which were a very strong indication that Mr. Popovic's -- indication that Mr. Popovic's smoke was entering into the Schuman
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residence, and also, I detected with my nose, my eyes, the irritation and odor of secondhand smoke during the period when Mr. Popovic was smoking, and when he was not, I did not; so, it was a clear indication that smoke was coming in objectively. Q. I believe that Dr. Gots inferred that
Mr. Schuman's complaints were somehow suggested by you to Mr. Schuman. Is that your belief of what Dr. Gots, you
know, was inferring? A. That is my belief of what he said, yes. MR. FISHER: THE COURT: Objection, Your Honor. Go ahead.
BY MR. SZYMKOWICZ: Q. Did you ever suggest to Mr. Schuman any kind of
complaint that he might have? A. Absolutely not. I directed Mr. Schuman in my
letter to him, when I sent him the monitor, to simply record whatever complaints he had about Mr. Popovic's smoking. might be. I didn't say what they should be or what they I simply say, If you have any complaints,
record them. This is the same instruction I give to all my clients. Q. So the complaints that ended up in your report
came from Mr. Schuman to you; not the reverse, correct?
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A.
That is correct.
My clients don't all report
the same symptoms.
They report different symptoms.
Mr. Schuman reported what he experienced. Q. Mr. Popovic testified about the use of candles Do you
to get rid of the smell of secondhand smoke.
believe that the use of candles would have any effect, at all, in getting rid of the health affects of secondhand smoke? MR. FISHER: Your Honor, objection. He cannot
testify with respect to the health effects of secondhand smoke; risk of. THE COURT: Would burning of candles have any
effect on the risk of secondhand smoke? THE WITNESS: They would increase it.
BY MR. SZYMKOWICZ: Q. A. Why? Because they would add pollution to the air. It just adds
Burning candles doesn't eliminate smoke.
more volatile organic compounds to the air; adds more suet to the air; in particular, carcinogenic suet. Q. So burning candles would actually make the
situation worse for Mr. Schuman, correct? A. Q. That is correct. Burning candles would not help Mr. Schuman in
any way, would it?
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A. unit. Q.
No, it would simply add more pollution to his
Do you believe that your method of measuring the
presence of secondhand smoke migrating from the inside of the Popovic house to the inside of the Schuman house is the preferred method of measuring the secondhand smoke in the scientific community? A. Q. A. Q. Absolutely. It is the standard method.
Why do you have that belief? Everybody uses it. Do you believe that your method of measuring the
secondhand smoke migrating from the Popovic patio to the open windows of Schuman, smoke, is the preferred method of measuring secondhand smoke in the scientific community? A. One of several methods that could be used, but,
yes, it is a preferred method. Q. Do you believe the risk assessment model used by
you in measuring the -Do you believe that the risk assessment model used by you in measuring the risk associated with Mr. Schuman's exposure to secondhand smoke migrating from the inside of the Popovic house to the inside of the Schuman house is the preferred method of measuring such risk in the scientific community? MR. FISHER: Objection, Your Honor.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. question.
THE COURT: THE WITNESS: widely accepted.
Go ahead. Yes. My risk assessment model is
There are more than a dozen papers which
refer to it as an authoritative risk assessment model and as an exposure assessment model. It is widely accepted,
and been recorded in the Surgeon General's Report and the reports of the National Academy of Sciences. Q. Do you believe that the model used by you in
assessing the exposure associated with Mr. Schuman's exposure to secondhand smoke migrating from the Popovic patio through the open windows of the Schuman house is the preferred method of measuring such exposure in the scientific community? A. I'm sorry? MR. FISHER: THE COURT: THE WITNESS: Object, for the record. Go ahead. I missed the first part of your
BY MR. SZYMKOWICZ: Do you believe that the model used by you in
assessing the exposure associated with Mr. Schuman's exposure to secondhand smoke migrating from the Popovic patio through the open windows of the Schuman house is the preferred method of measuring such exposure in the scientific community?
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A. model? Q. A. collected.
You are talking about the exposure assessment Yes, it is. How do you know that? Because it agrees with the data that I The carcinogen monitor also agrees with other
published literature on secondhand smoke. Q. There's been a lot of testimony in GHI's Case In
Chief as well as Mr. Popovic's, I believe, about sealing the units. Do you have any rebuttal to that testimony? MR. FISHER: THE WITNESS: Objection, Your Honor. Yes.
BY MR. SZYMKOWICZ: Q. What is your rebuttal? THE COURT: THE WITNESS: doesn't work. BY MR. SZYMKOWICZ: Q. A. Why is that? Because there are too many pathways where Go ahead. Sealing has been widely studied;
tobacco smoke and air basically migrate from one unit to another. It was studied extensively in Minnesota in
several buildings, eight-story buildings, four-story buildings, three-story buildings, and attached houses and professional buildings. Engineers went in and tried to
seal up these buildings to eliminate as much air flows as
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they possibly could.
They were able to get reductions in The ones
most cases but not all; some cases increased.
where they were successful, they managed to reduce it by about 25 percent on average; so, seventy-five percent of the air still came into the units from other apartments. Just cannot be done, and that was the basic conclusion of the research which was published. Q. Do you believe GHI's sealing of the Schuman and
Popovic units ever solved the smoke problem for Mr. Schuman? MR. FISHER: Objection, Your Honor. I think
this goes beyond what Mr. Repace is qualified or has a foundation to testify to. Goes to the speculation. Your
Honor, Mr. Repace has testified in his case earlier that he came into the -- and not many years after the original sealing was done by GHI, he came in after the renovation work was done by Mr. Gervasi; so, I don't see how Mr. Repace is qualified or has the basis to testify to with respect to what it was like before the sealing and then after. MR. SZYMKOWICZ: Remember, Your Honor,
Mr. Repace is a member of ASHRAE, so that's the American Society of Heating, Air Conditioning people. MR. FISHER: heating. He is not admitted as an expert in
He's an honorary member because he has gone to
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seminars. THE COURT: THE WITNESS: Go ahead. You are questioning about?
BY MR. SZYMKOWICZ: Q. With regard to the sealing performed by GHI,
ever solve the problem of secondhand smoke coming into the Schuman unit? A. Clearly, it didn't because Mr. Schuman
complained about it after the sealing was done. Q. problem -A. Q. Yes, they do. -- after the sealing was done? After the Do your measurements indicate that there was a
sealing was done? MR. FISHER: THE COURT: Objection, Your Honor. That's all right.
BY MR. SZYMKOWICZ: Q. There has been a lot of testimony in the GHI
slash Popovic Case In Chief about fans, ceiling fans. Do you believe that ceiling fans would get rid of the secondhand smoke problem for Mr. Schuman? MR. FISHER: Objection, Your Honor. I think the
only testimony about fans came from Ms. Ipolito; so, I'm not sure that is rebuttal. THE COURT: Would ceiling fans make a
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difference? THE WITNESS: No.
BY MR. SZYMKOWICZ: Q. A. Why not? Ceiling fans were running in Mr. Popovic's unit.
I can't see how they would make a substantial difference, and if they were running in Mr. Schuman's unit, they would simply disperse the smoke more uniformly throughout the unit, but they wouldn't get rid of it. Q. There's also been testimony about HEPA filters.
Do you believe that the use of HEPA filters would solve the secondhand smoke problem for Mr. Schuman? A. Q. A. No. Why not? HEPA filters typically have a very high
collection efficiency for particles, but to actually reduce the air in the room, to reduce the concentration significantly, you have to process many, many room air changes per hour, and to reduce the risk of secondhand smoke, to which is thousands of times the de minimis risk level by adding one or two air changes an hour just for particles alone certainly is not going to reduce the particle risk significantly when you have a thousand, two thousand times the de minimis risk level. It would be a
risk of the gas; wouldn't phase the carcinogen levels, at
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all, because those kind of filters don't remove gases. Q. Are your views on the use of sealing between
units, the use of fans, and the use of HEPA filters generally reflective of the scientific position on these subjects as expressed by ASHRAE? MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: Q. A. Q. A. ASHRAE? Yes. How do you know that? They published a position paper in 2005 which
says exactly that. MR. SZYMKOWICZ: THE COURT: MR. FISHER: I have no further questions.
Cross? Yes, Your Honor.
CROSS-EXAMINATION BY MR. FISHER: Q. Mr. Repace, you would agree that the
concentration of secondhand smoke is an important factor in evaluating the risk associated with exposure of secondhand smoke, would you not? A. Q. I would. So concentration is essentially the amount of
secondhand smoke that exists in a specific area, correct? A. In a specific volume.
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Q.
Okay.
So if I'm in a room of this size, and
let's say our Madam Clerk is smoking a cigarette, and at the far corner of the room, I'm standing. You testified
about the streams of smoke, I believe, in your testimony. The concentration of smoke coming from the cigarette in this corner of the room to get to that corner of the room would be lower than in a room of 25 percent of this size in the same circumstance, correct? A. It might. In general, if the micro plume
traveled to the other end of the room, that would not be true. The well mix concentration would be higher in the
smaller room. Q. Because in a smaller room, higher concentration
just makes practical sense? A. With the same smoke generation rate
concentration and same air exchange rate, that's correct. Q. So the size and the location. Space does have
an impact on concentration levels? A. Q. A. Q. Of the source space? Correct? Yes. And there is no published study, either by
yourself or anyone else in the scientific community, that has taken a 30 day reading from a nicotine monitor, is that correct, as did you in this case?
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A.
The published studies have typically used I have used the 30 day
one-week measurement periods.
measurement period to get a better limited detection. Q. So you have done thirty days where they have
done seven to ten days in some cases, correct? A. Q. That's correct. And you have been studying and publishing on
secondhand smoke risks since when, the early Seventies? A. My first paper was published in 1980 in the
Journal of Science. I have been studying secondhand smoke since 1975 and air pollution since 1970. Q. And during that entire time, you have always
published focusing on the risks associated with secondhand smoke exposure, correct? A. Q. No. Okay. Well, in your testimony in Court and in
depositions, your focus has been on risk assessment to populace types, correct, except for this case? A. What I said when I talked about my research is
that I have done research on the hazard exposure, dose dose response risk, and control of secondhand smoke; so, that's six areas in which I have done research, and I'm published. Q. You have published on nothing else in the last
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15 years, correct?
Always been on secondhand smoke risks
and affiliated aspects of secondhand smoke? A. That's been my research focus in the last 15 In terms of my published papers,
years, that's correct.
the work I did for EPA obviously covered other areas. Q. Okay. And you testified earlier that the
Surgeon General's Report was not a publication by regulatory body, correct? earlier? A. Q. That is correct. We all recognize the Surgeon General's not Would you agree with that? Is that what you were saying
Congress, right? A. Q.
Correct. It's basically a publication by a group and,
specifically, the U.S. Department of Health and Human Services Public Health Service with respect to a study that they did with respect to the harmful effects of smoking and then of secondhand smoke, correct? A. Q. That's not quite the way they do it. I'm not asking about what they do. I'm talking
about who they are.
They are a governmental body; not a
regulatory body; a governmental body that performed a study to look at public health, is that right? A. That's not quite the way it works. What they do is they commission a group of
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academics who are generally experts in the field; typically, ones who have had a very significant amount of scientific achievement. They get a number of these to They
draft chapters for the Surgeon General's Report.
then get another group of academics who are experts in the field to review those chapters and to make comments to peer review them, in effect, and then come up with a peer-review chapter, which they then submit to the office of the Surgeon General. A. Then those chapters are reviewed by the Public
Health Service for their imprimatur, and then the Surgeon General's Report is published as an official document by the Surgeon General. Q. Right. So it's a publication by a public health
organization within the government? A. Q. That is correct. And when you reviewed the issues in this case
and you actually testified in this case, you're going from the position that any risks, no matter how small, of exposure to secondhand smoke poses some risk of public health harm, and actually your graph kind of demonstrates that, does it not? If we are at the far corner here, any
exposure to secondhand smoke, in your opinion, results in some risks, correct? A. Yes. And one has to reevaluate whether that
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risk is significant or not from a regulatory standpoint, which is what EPA does. If it's above a de minimis level, If it's above
then it's a risk that merits consideration.
a de manifestis level, it's a risk that merits control, and that's the way the federal government, whether it be EPA, Food & Drug Administration, OSHA or even the Federal Highway Administration does the same thing with regard to whether it should put in safety rails on highways. So these are standard regulatory methods of evaluating the significance of risk. MR. FISHER: Mr. Repace, you testified in
your -- a few minutes ago referencing, again, the Minnesota multifamily building using air, sealing and ventilation treatments, publication, Minnesota study, as you refer to it? A. Q. Yes. This was a study done specifically focusing on
analyzing multifamily buildings and the chance of secondhand smoke infiltrating from one space to another space in the same multifamily residential settings. most cases, I think there's some commercial setting references as well, is that correct? A. Q. Correct. And the publication is pretty large, is it not? In
Looks like it's about eighty pages, including the
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bibliographies. A.
Sound about right to you? There's a --
Yes, that's the first publication.
much more recent publications in the peer-reviewed literature. Q. Is a publication that analyzes all different
types of units; talks about duplex, eight-plex, twelve-plex, multifamily, high rise, and then garden style as we have in Greenbelt Homes garden homes, townhome-style, correct? A. Q. Correct. In this study, they specifically took action to
do sealing around pipes and gaps as part of the study to see the effects, correct? A. Q. Correct. And they also did an analysis of the gaps that
were between walls, between units to look at the air space and how secondhand smoke might travel through those spaces, correct? A. Q. Yes. And they took readings both before they did the
sealing and then after to see the measured effect of the actions that they took to seal, correct? A. Q. Correct. And in some of these buildings, forty-eight
percent of those living in, overall, in the multifamily
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residential dwellings complained before the study about their -- the fact that they smelled secondhand smoke, correct? A. Q. A. Q. I don't recall the number exactly. Sounds about right? Sounds about right. Then they took this action, and they basically
did a wide study to determine what effects the sealing of the units, as I described them, among many other things that they did in terms of looking at insulation and things, to see the effects on how secondhand smoke going from one unit to another unit may be decreased, correct? A. Q. Yes. And in those cases, based upon the surveys, they
found in some cases, that the sealing of the units resulted in less complaints from those that complained previously, correct? A. Q. Yes. And I believe you have testified, and actually,
there's many letters referring to it, and in fact, your -the notes from the hearing before GHI, where you said that the sealing of the unit and using other factors to try to diminish the effects from secondhand smoke from one unit to the next would never result in it being preventing completely, correct?
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A. Q.
Correct. But you do recognize that sealing of the unit
can reduce the amount in some cases? A. It can reduce the amount in cases. In other
cases, it doesn't. Q. But some, some cases it can. My question to you is: Your testimony in this
case has been that all exposure to secondhand smoke poses some risk, correct? A. Q. Yes. And that I believe you said that you believe
that, and you said this to Mr. Szymkowicz a little bit ago, that even if they took action to seal, based upon some of the literature that you read, even in those cases that you testified to, it resulted in 25 percent reduction in some cases? A. Q. A. Q. Yes. So 25 percent of ten is two-and-a-half, right? Okay. Okay. And so if we take a concentration level
of smoke going from one unit to the next, and you can get a 25 percent reduction, isn't that something positive? you can reduce the concentration levels, it would have a positive effect on that issue of secondhand smoke getting into the next unit, correct? It's a good thing, right? If
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A.
It's not nothing wrong with doing it, but The sealing, it
there's still a problem at the other end. hasn't solved the problem. Q.
Because if the smoke is still getting in, even
if it's reduced, your testimony is that it's still not safe because even the most small amount can still pose some risk? A. risk. Well, there are two issues here. One is the
Most of the clients that I have are not as much
concerned about the risk, or, although, they all -- as the irritation, and if the irritation doesn't go away after the sealing, then the client is very unhappy. And I can tell you from experience I have had -now, actually, Mr. Schuman was the 16th client I have had in residential building. I have had a couple of more
since then; probably half of them have already tried sealing before they come to me. successful. That hasn't been
They are fairly upset because, usually, it's
a fairly expensive proposition; unlike Mr. Schuman's case, they paid for it out of their own pockets. Q. And in Mr. Schuman's case, you talked, in your
testimony a bit ago, about the levels that you detected in this Courtroom. Remind the Court. What specifically did that
machine that you turned on in the Courtroom test?
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A.
It measures particulate polycyclic aromatic
hydrocarbons. Q. A. That is PAHs? Is that the abbreviation?
Generic term we refer to it as PAHs, and these
specific ones we call PPAHs. Q. PPAHs are specifically affiliated with It's a marker, so to speak, to
secondhand smoke? secondhand smoke? A. smoke.
PPAHs are one of the components of secondhand You also find them in the air from other things,
particularly from diesel exhaust. Q. You mentioned diesel. Can exhaust -- before,
when you talked about the fact before, we got a reading similar to what you got in Mr. Schuman's unit, I don't smell diesel exhaust in here. How does that explain you
got a reading of two in this Courtroom? A. Because that's generally the level that one I have never made
measures in the background air.
measurements over a period of time where I did not see some PPAH levels. Even aboard a cruise ship at sea, you
see some of them because there are combustion sources. There's emissions from smoke stacks; so, you do see them in the environment. Q. It's background levels. For example: You did a
reading in this Courtroom.
You got a measurement of two
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of PPAHs, and that's what you would call the background or base level that is in this Courtroom at the time you took the reading, correct? A. Yes, that was one of the readings. If you make a measurement over a period of time, for example, as I did in Mr. Schuman's house; I measured over a period of twenty minutes, the average level was two, but there were many ten second readings where it was zero, and there are some ten second readings where it was higher than two, but when Mr. Popovic was smoking there were very few zeroes, and there were lots of numbers that were as high as ten or twelve. Q. I think -- but your report talks about the
average level of two, right, over the 20 minutes? A. Q. A. Q. Correct. That you got from Mr. Schuman's unit? That's how I summarized it. When you said before, during your testimony with
Mr. Szymkowicz, that your readings doubled when Mr. Popovic was smoking outside and you observed him, it doubled basically from one to two in terms of your average reading, correct? A. In his living room, that's correct. In his
dining room, was higher. Q. Didn't double from ten to twenty, though, right?
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A. exposure. Q.
No.
But the point is here, he demonstrated
This is what we were trying to do. And that goes to my question, Mr. Repace. Your
measurement, you were trying to see whether or not secondhand smoke was getting in, period, right? A. Q. A. Q. Correct. Is there exposure? Yes. Well, I'm a little troubled because in your
testimony and in these reports, there's a great deal of time spent looking at the measurements, themselves, okay. Talks about how these measurements relate to the risk of potential harm to populaces, right? A. They go through -- in the Minnesota study,
there's charts of different measurements of what they read in different units. Q. correct? A. Q. Correct. It wasn't just a question of is smoke getting Basically, they were looking at the levels,
It was clear secondhand smoke in those cases was
getting in because, No. 1, people were complaining, and they smelled it, right? A. Q. Yes. No. 2, they took the nicotine monitors, put them
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in, and they got readings, correct? A. Q. Correct. Based upon your chart here, where we are in
terms of readings, factors in with respect to populace's risk, right? A. Q. Yes, but populaces are made up of individuals. There's no question. There's no question that
populaces are made up of individuals, but in the Minnesota study, it didn't get into the issue of following that specific individual through their life to see what developed later, correct? A. Q. A. Q. It was not an epidemiological study. That wasn't the purpose of it? No. The purpose of it was actually to seal -- what
effects sealing would have to the transfer between units? A. Correct. MR. FISHER: THE COURT: No further questions, Your Honor. Redirect. REDIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. What is more accurate, a measurement with a
Hammond monitor for ten days or 30 days? A. Depends what you're trying to do, but in my
case, it was for 30 days.
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Q. A.
Why is that? Because, in my experience, people don't smoke
continuously, and if you make a measurement for a short period of time, you may encounter large periods when there is nobody smoking because nobody is home; so, if you make a measurement over the course of a month, you are maximizing the opportunity for the smoker to be home, and if smoke is coming in, you're maximizing your opportunity to measure it. Obviously, in the case of employed men and women, they are really home and awake only on an average of, maybe, if you analyze it, about six hours a day; so, their effective smoking day is actually very short, about the quarter of an average day if you average it over the course of the year; so, you have got to make measurements over a long enough period that you're going to -- you're going to find something, if there's something to be found, and in some cases, I have had clients where they have deployed the monitors, and they found nothing. Q. Are you aware of any peer-reviewed scientific
publications that have ever challenged findings of the Surgeon General with regard to secondhand smoke? A. Q. I'm not. How many times did the Surgeon General cite your
work in its publications on secondhand smoke?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. questions? questions. Q.
MR. FISHER:
Objection, Your Honor.
I think we
have heard this nineteen times, if I'm correct. THE COURT: THE WITNESS: Been asked and answered. In the 2006 report.
BY MR. SZYMKOWICZ: Measurements you took of the presence of
nicotine in the Schuman house with regard to the smoke coming from the inside of the Popovic house to the inside of the Schuman house were taken after GHI sealed the unit, correct? A. Correct. MR. FISHER: testimony in this case. THE COURT: This is not new evidence. Then I have no further Objection, Your Honor. Not the
MR. SZYMKOWICZ:
THE COURT:
Mr. Popovic, do you have any
MR. POPOVIC:
No questions.
Thank you, Your
Thank you, sir. Thank you. No further witnesses, Your
MR. SZYMKOWICZ:
Honor, no, Your Honor, but we renew our motion on the oral argument, for time purposes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 calendars? Honor.
THE COURT:
I can tell you a couple of things.
By going through my working file, I know that whatever the ultimate decision is, there are just a plethora of observations that I have noted in my own file. It's going
to take some time, and I want to organize those in a certain fashion. I started that two pages in; so, it's
going to take some time. I have got all these CA cases that want to go, so we need to find another date. We will take closing
argument then just because, through no fault of anybody's here, we had an earthquake, and threw the scheduling off; then we had floods, and I don't know if any of you saw Upper Marlboro last week? MR. SZYMKOWICZ: So far so good. THE COURT: 20th of October. Do you have your No. Feast or famine, Your
MR. FISHER: THE COURT: MR. FISHER:
Your Honor, I just need a moment. Sure. Again, Your Honor, for the reasons
I stated before, I renew my concern with lengthening. THE COURT: inevitable. MR. SZYMKOWICZ: Your Honor, I'm representing It's inevitable because it's
the Libyan government in a case; because the revolution,
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there's been a status conference set on October 20th that I can't get out of, and then I'm gone the next week. I'll be back on -- the next available day for me is November 3rd. MR. FISHER: 20th? MR. SZYMKOWICZ: THE COURT: your date was? MR. SCHUMAN: MR. FISHER: (Nods head up and down). When does Mr. Schuman leave town? Wednesday. Mr. Schuman is gone. That is what Do you have anything before the
Gone till the 16th.
MR. SZYMKOWICZ: MR. FISHER: THE COURT:
I'm free tomorrow, Your Honor. I don't know that I'll be ready Yeah, I can't tell you that
tomorrow; in fact, I'm sure.
I would be ready tomorrow, myself. MR. SZYMKOWICZ: Your Honor, Mr. Schuman is not
available tomorrow, most importantly. MR. FISHER: closing arguments here. The issue of briefs, what have you, Your Honor is going to review all that when you take it under advisement. THE COURT: MR. FISHER: What does November 3rd look like? That's a Thursday, correct, Your Your Honor, we are talking about
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Honor? THE COURT: MR. FISHER: THE COURT: MR. POPOVIC: THE COURT: MR. POPOVIC: MR. FISHER: Correct. I can be available, Your Honor. Mr. Popovic. I'm okay on the 3rd. November 3rd. November 3rd. So we are clear, we are coming back
November 3rd to do argument, closing arguments in this case. THE COURT: that point. I will be ready, I think, to rule at
Submit anything else in the way of post-trial Feel free.
brief, whatever.
Which Libyan government do you represent? MR. SZYMKOWICZ: THE COURT: The good guys.
I lived there for three years. Did you?
MR. SZYMKOWICZ: THE COURT: Force Base. MR. FISHER:
My dad was stationed at Phillips Air
Your Honor, just so I understand
it, we are going to do closing arguments November 3rd. You are going to take it under advisement from that point in time? THE COURT: position to rule. No, I probably -- I hope to be in a Like
I will have reviewed everything.
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I say, I have got a lot of observations, and I'm just sorting through all the evidence. exhibits to review. MR. FISHER: I understand. One of the purposes, I have got a lot of
obviously, of closing arguments, Your Honor, from our standpoint, to pull things together. To prevent, Your Honor -- what I'm trying to avoid here is a paper war between now and November 3rd. THE COURT: need that. MR. SZYMKOWICZ: right.) MR. POPOVIC: Your Honor, if I may say, I'm (Shakes head from left to No, we don't need that. We don't
available, I said, on the 3rd, but if it's going to be another two or three days, I won't be. available on Friday, the 4th. THE COURT: Couldn't be. Available on the 3rd I won't be
anyway, but the 3rd should be it. MR. SZYMKOWICZ: MR. FISHER: MR. POPOVIC: That's all we need, Your Honor.
Thank you, Your Honor. Thank you. Thank you.
Thank you. I believe this is a case of That's why I think it's
MR. SZYMKOWICZ:
first impression in Maryland.
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important to take time on this. THE COURT: everybody's part. Okay. I appreciate it on
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REPORTER'S CERTIFICATE I, Diana L. Wakefield, an Official Court Reporter for the Circuit Court for Prince George's County, Maryland, do hereby certify that I stenographically recorded the proceedings in the matter of David S. Schuman vs. Greenbelt Homes, Inc., et al, Civil Action Law 10-06047, on September 12, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers one through 74 constitute the official transcript of the testimony of the witnesses as transcribed by me from my stenographic notes to the within typewritten matter in a complete manner to the best of my knowledge and belief. In Witness Whereof, I have affixed my signature on this the 7th day of October, 2011.
7-1
IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND
DAVID S. SCHUMAN, Plaintiff, vs. GREENBELT HOMES, INC., et al., Defendants. ____________________________/ REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Trial on the Merits) Volume VII of VII Civil Action Law 10-06047
Upper Marlboro, Maryland Thursday, November 3, 2011 BEFORE: HONORABLE ALBERT W. NORTHROP, Associate Judge
APPEARANCES: For the Plaintiff: J.P. SZYMKOWICZ, ESQUIRE For the Defendants: JASON E. FISHER, ESQUIRE
Cindy S. Davis, RPR Official Court Reporter Post Office Box 401 Upper Marlboro, Maryland 20773
7-2
T A B L E O F C O N T E N T S P A G E CLOSING ARGUMENTS: By Mr. Szymkowicz By Mr. Fisher By Mr. Popovic By Mr. Szymkowicz The Court's Ruling 7-3 7-8 7-36 7-40 7-48
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P R O C E E D I N G S THE DEPUTY CLERK: CAL10-06047, Schuman versus Greenbelt Homes. THE COURT: Good morning. Let's identify everybody
MR. SZYMKOWICZ: J.P. Szymkowicz on behalf of Mr. Schuman, who is present to my right; Rita Turner and John T. Szymkowicz. THE COURT: Good morning. MR. FISHER: Good morning again, Your Honor. Jason Fisher on behalf of defendant Greenbelt Homes, Incorporated. With me is my associate Mike Goecke. And with us, as well, is Gretchen Overdurff with Greenbelt Homes. THE COURT: And Mr. Popovic. MR. POPOVIC: And Darko Popovic, pro se. THE COURT: Okay. We'll start with Mr. Szymkowicz. CLOSING ARGUMENT BY MR. SZYMKOWICZ MR. SZYMKOWICZ: Your Honor, we've had six days of testimony. We filed a 156-page posttrial brief. I would like to be brief in my statements because I think everything is included in the brief that we filed. I'd first like to thank Ms. Wakefield, who is not here, for her wonderful transcript. It was, I think, over a thousand pages. And I 'd like to thank my opposing counsel Jason
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Fisher and Mike Goecke for being collegial through this entire proceeding. That made it a lot easier. And also, of course, Mr. Popovic. And, finally, we thank Your Honor for sitting through this. THE COURT: Fascinating case. MR. SZYMKOWICZ: Fascinating case. THE COURT: Far better than the typical who-ran-the-red-light. MR. SZYMKOWICZ: There's no dispute over the indoor smoking problem. The Court granted the consent motion for preliminary injunction. We believe that that should remain in place as a permanent injunction. So then, on the injunction side, the only thing we're here for is the outdoor patio smoking. And, additionally, we're here on the damages. We'll get into these. In GHI's member handbook and mutual ownership contract, the nuisance clause is more liberal than the Maryland common law. We feel that we meet the standard for the common law, but there may be a gray area between the contract and the common law. So if we don't hit the common law, we definitely hit the contractual nuisance clause. I think we hit both. But in the GHI nuisance clause, all members have a
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duty to respect their fellow neighbors' comfort and peace of mind, to not engage in objectionable conduct, and not to annoy, inconvenience or damage occupants of adjoining dwellings. Clearly, we have this in this case. We heard testimony from not only Mr. Schuman on the one side of the Popovic house, but we heard testimony from Dory Ipolito on the other side, and they had the same problems. They've had the same problems, off and on, for years, and I believe that the testimony rendered is violative of the nuisance clause, the actions of the Popovics. What's interesting about this case is that we submitted, in this 156-page brief, extensive citations to the transcript and to the record. It was completely unrebutted in GHI's submission. Of course, Mr. Popovic didn't file anything. But the GHI submission did not address a single quote from the transcript, where we went meticulously through and picked up quotes from everybody -- from Mr. Schuman, from Dory Ipolito, from the Hammetts, the former neighbors. But then we also got significant admissions from Tokey Boswell and Sylvia Lewis on the GHI board; from Gretchen Overdurff, the GHI property manager; Mr. Popovic; and, perhaps most importantly, Dr. Gots. Everybody on the GHI/Popovic side agreed that secondhand smoke was harmful and it annoys nonsmokers.
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I think that the distinction that Dr. Gots made was that Mr. Schuman's risk of future harm was not significant. I think he said two in 10,000 people would suffer a catastrophic problem from this exposure. My question is what would it be like to be one of those two in 10,000 people? At a Caps game at the MCI Center, that means four people would have lung cancer or have a heart attack based on exposure to the secondhand smoke. That's not an acceptable risk. But since the risk of future injury is not compensatable in this court at this time, monetarily, we can use that, I believe, as a ground to enjoin the nuisance from happening in the future. But even if we don't have the risk of future injury, we do have what Mr. Schuman testified to as his current symptoms when he's exposed to secondhand smoke, which are the -- I think what the Court was looking for in the preliminary injunction hearing as the immediate medical injuries. Mr. Schuman testified to watery eyes, sneezing, coughing, congestion, and headaches. These were all corroborated by Dr. Munzer, Mr. Schuman's expert, and they were corroborated by Mr. Repace in the sense that these are typical symptoms of people that have secondhand smoke exposure.
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Most importantly, these immediate medical injuries were not rebutted by Dr. Gots. Dr. Gots, you know, presumably was only here to talk about the future risks, and I don't even think we need to get there. Although they're significant, risk of hung cancer and heart attacks is not something that's trivial in any way, shape or form. GHI has claimed that the business judgment rule prohibits a monetary judgment against GHI, and that simply ignores the Maryland law on the subject of the business judgment rule. In their brief, they don't even discuss what we discussed at the Court of Special Appeals in Annapolis on that issue and in our 156-page brief, the exceptions to the business judgment rule, and the business judgment rule does not apply where the corporation owes a tortious or contractual duty to the plaintiff. And that's what we have here. So the business judgment rule just simply doesn't apply at all. Finally, GHI's failure to take action to enforce their own nuisance clause resulted in the breach of their contract to Mr. Schuman. They had the ability to take action and they failed to do so. That forced Mr. Schuman into litigation with Mr. Popovic and, you know, of course he was partially successful already getting the injunction on the indoor smoke. That failure to enforce the nuisance clause and the subsequent forcing Mr. Schuman to file suit against
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Mr. Popovic allows Mr. Schuman to receive attorneys fees from GHI to prosecute this case against Mr. Popovic, of course. We ask the Court to either award what the Court considers to be reasonable attorney's fees. Obviously, the Court has been through this case for over a year. The Court knows how much time we've put in. We believe that the Court can make a decision on attorney fees in a damage award today. However, if the Court wishes to see the bills that Mr. Schuman has actually paid for, for prosecution in this case, we would ask that the Court provide us two weeks to file our medical bills. We will reserve the rest of our argument for rebuttal. THE COURT: Thank you. Mr. Fisher. CLOSING ARGUMENT BY MR. FISHER MR. FISHER: Thank you, Your Honor. Your Honor, I appreciate Your Honor's attention, and I did check the forecast this morning. No tornadoes and no blizzards are forecast for today. Your Honor, this case is a novel case and, certainly, there are issues that have been raised in this case that Your Honor has not seen before. It is not a typical who struck John, it is not a typical trip and fall, it is not a typical case that Your Honor has seen. But what is typical in this case are the claims
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that are brought, things that this Court is familiar with that judges such as yourself are familiar with and that counsel certainly is familiar with in trying cases. Your Honor, I think it's important to focus on what the claims are against my client, what the claims are against Greenbelt Homes Incorporated. Your Honor, with all due respect to plaintiff's counsel, I think he tries to cloud the issues with talking about nuisance and talking about nuisance under the contract and nuisance as it relates to this case. But the claim against Greenbelt Homes, Inc., is not a claims for nuisance. The claim against Greenbelt Homes, Inc., is a claim for negligence and a claim -- their second claim against Greenbelt Homes is a claim for a breach of implied covenant of quiet enjoyment. I think it's important Your Honor take a step back and think, just at the pure, basic components, what do those claims mean. Well, negligence means that there must have been some unreasonable conduct by Greenbelt Homes, Inc., that resulted in damages to Mr. Schuman. That's the cause of action. That's negligence. Your Honor, at its very core, negligence requires a duty, a breach of the duty, a breach of the standard of care of a similarly situated cooperative board, sitting in the same shoes as Greenbelt Homes, Inc., and a breach of that standard that resulted in some damages to Mr. Schuman.
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So let's talk about that for a minute in the context of what Your Honor has seen throughout the six days of trial in this case. When I'm going through the elements -- and, Your Honor, again, despite Mr. Szymkowicz's 156-page filing, we didn't get the transcript in this case. There's no reason to because this is a trial. At trial, when there's a closing argument, that's when we bring all the facts together to prove our case. This is not an appellate case, and we did not treat our filing as such. Our filing with the Court, Your Honor, last week or the week before was merely to outline the issues in this case and cite you some facts that we're going to talk about here today to establish why Mr. Schuman has not proven his burden in the claims against Greenbelt Homes, Inc. Your Honor, we went through it and outlined for Your Honor the elements of negligence and why that claim has not been met, but I'm going to go through it again for you now, just to highlight the issues and the facts as Mr. Szymkowicz talks about, because we want to make it clear to Your Honor that there's been no facts to establish these issues. So let's first talk about duty, Your Honor, the duty of a board of directors of an incorporated entity such as Greenbelt Homes. Common law duty, Your Honor, they have a duty to act in faith, they have a duty of loyalty, and a duty to act reasonably in the context of the standard of care.
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Let's first talk about the fact that plaintiff presented no evidence whatsoever of what the appropriate standard of care is of a similarly situated board of directors. Your Honor, it's our contention that that inability or that failure to put on any evidence whatsoever of the appropriate standard of care is fatal to his case. Your Honor, there is no expert testimony what a similarly situated residential cooperative board would or should do in the circumstances facing the facts that were represented to them in this case. So, Your Honor, that alone should make that claim flawed and fails. But even if Your Honor were to find that, okay, well, we're going to infer standard of care, we're going to have to infer that the board should have acted reasonably in the context of what this board is obligated to do or should do in their role as volunteers sitting for Greenbelt Homes. And let's talk about those duties, Your Honor. Their duty is to enforce and consider the association's bylaws and mutual ownership contract in the context of a complaint brought before them. Your Honor, I don't believe -- and Your Honor certainly would be the determining factor here -- that one could say that Greenbelt Homes and its board or its member complaints panel acted unreasonably when faced with this, as Your Honor said, unique type situation. What did they do that was so unreasonable?
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They certainly did not ignore Mr. Schuman. They took his complaint very seriously, both when the original complaint came before them, as well as when they considered it again, 11 years later, when he brought it back. Your Honor, you heard testimony from Tokey Boswell, you heard testimony from Sylvia Lewis, you heard testimony from Mr. Schuman himself, you heard testimony from Gretchen Overdurff, and you heard testimony from Mr. Popovic. What did all those individuals talk about, Your Honor, the steps that Greenbelt Homes took in considering this complaint from Mr. Schuman? Did they ignore him? No. They took him very seriously. So seriously, in fact, that they got a member complaints panel together. They sat for a good amount of time listening to Mr. Repace, in looking at materials, the same materials that were presented to Your Honor at the preliminary injunction hearing, to consider what they had before them. They didn't ignore Mr. Schuman. They acted reasonably in that context. They met the duty that they had. Their role in that was does the smoking from Mr. and Mrs. Popovic unreasonably interfere with his right to use his property in the context of the bylaws? Your Honor, the business judgment rule is applicable in the context of looking at was there a violation of the bylaws for purposes of did they act reasonably, for purposes of evaluating
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negligence? That's the context that you look at the business judgment rule here, because in the context of the bylaws in evaluating the reasonableness of this board of directors, the business judgment rule does apply. The business judgment rule says absent fraud, bad faith, the same type of factors that Your Honor reviewed when you considered their claim for punitive damages and dismissed that, is the same type of factors and facts the Court would consider in did this board act in bad faith; did they do something so unreasonable that I should ignore the standard business judgment rule and find that there's an exception that I should hold them liable? Your Honor, that's the context of how the business judgment rule is applicable in this case. And just as Your Honor found that there was no evidence of bad faith for purposes of punitive damages, there's been absolutely no testimony whatsoever from Mr. Schuman on cross-examination, his direct testimony, that anything that the board of directors did, or Ms. Overdurff, in considering what was brought to her as their agent, was unreasonable or in bad faith. In fact, Your Honor, the record is wrought with exhibits, letters from Mr. Schuman to Ms. Overdurff, to the member complaints panel, to the board of directors, thanking them, thanking them, Your Honor, for their consideration of
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the issues. So there is not even an allegation, no fact, nothing in evidence that even suggests that they acted in bad faith that would require Your Honor to go into reviewing their decision under the bylaws in the context of whether they met their obligations for purposes of applying that duty. This isn't a breach of contract case. He didn't sue them for negligently applying the terms of the contract. He sued them for negligence. Your Honor, in that context, that claim fails. THE COURT: In terms of breach of contract. MR. FISHER: I'm going to get to that. But in the context of the negligence, that's where it fails, Your Honor, because you can't jump into the board's determination of whether they applied their bylaws appropriately for purposes of negligence to get there. And I'm going to get to the implied covenant of quiet enjoyment in just a minute. But with respect to negligence, Your Honor, not only does it fail for the reasons I've stated on the duty and no testimony on breach of standard of care or even a breach of reasonable conduct, but, Your Honor, where's the causation? Causation, again, Your Honor, talking about a tort, negligence, causation. What did the board of directors do that was the cause, the proximate cause of damages to
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Mr. Schuman? I'll come back to the fact that we've had nothing submitted for purposes of damages in this case. So again, Your Honor, without damages to be considered, you can't even, again, find for negligence because there's nothing to award. But, Your Honor, causation, where's the nexus? What have they put on in testimony that shows that the board's failure, their unreasonable conduct, even if this Court were to find some unreasonable conduct, where does that unreasonable conduct result in harm or damage to Mr. Schuman? Again, Your Honor, there's nothing in evidence that shows that nexus. It can't even be inferred because he has not put on any evidence to show that their failure to enforce, as he alleges, the provisions of their standard, their reasonable duties as a board, that their failure to act somehow resulted in damages to him. There's no nexus there, Your Honor. And in considering, Your Honor, the circumstances of this case in its entirety, you have to think about, as well, the conduct of Mr. and Mrs. Popovic. While Mr. Schuman testified that the problem existed in 1996 and 1997, and then in his testimony, Your Honor, in court, he talked about those 11 years. Why was he talking about the 11 years? Well, the sealing of the unit took place September 4, 1997, or in that timeframe, and there was a letter from
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Mr. Schuman talking about the efforts of GHI, which I'm going to put up on the board in a minute, Your Honor. But what happened between 1997 and 2009 is interesting, Your Honor. Mr. Schuman, who has submitted letter after letter after letter to the board of directors. In November of 1996, February of 1997, April of 1997, September of 1997, sent multiple letters back and forth to Mr. and Mrs. Popovic, had phone calls with Ms. Overdurff, had talked to committee members at GHI, had sent letters to the board, all in that timeframe. All of these exhibits are in evidence, Your Honor. Between 1997 and January of 2009, Mr. Schuman went silent, stopped communicating with them. Your Honor, you can evaluate Mr. Schuman's conduct and his actions, and what is Your Honor able to glean from what you have in the record, Your Honor? Mr. Schuman is not a quiet man. If there's a problem with respect to smoking interfering with him and he has an issue with it, he does what any lawyer does -- and let's not forget Mr. Schuman is a lawyer. He knows there needs to be some paper trail. He documents it. Whether he intentionally did that or not, I'm not sure, Your Honor. But what the record shows is that when there was an issue with smoking, he sent letters constantly. But, Your Honor, what does the record show you? That between September of 1997 and January of 1999, silence. Now, Mr. Schuman tried to testify in court, Your Honor, that
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that silence is something that didn't mean that there was nothing happening; it just meant that he kind of lived with it for a while; the problem was intermittent. But, Your Honor, he said that in court now, but that contradicts the actual evidence that was presented in court, documentary evidence, Your Honor. What you had, Your Honor, was Plaintiff's Exhibit Number 27, okay? This is Mr. Schuman's letter in January, 2009, the first action by Mr. Schuman to reraise this issue after 11 or so years. What does this letter say, Your Honor? This letter says many things, but what's important for purposes of this, Your Honor, "this matter was brought before the mediation panel several years ago and resolved. It has recently resurfaced; particularly in the last several months." So, Your Honor, we went 11 years or more with no correspondence from Mr. Schuman until this letter. While his testimony in court was, well, it was constant. And then, on cross examination, Your Honor you may remember I asked him about constant, and then he changed it and said, well, it was intermittent. Well, Your Honor, again, both of those comments contradict what he put in writing to the board in January of 2009, before he even ever filed a lawsuit. This matter was brought before the member complaints panel and resolved. His conduct, not sending
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letters, not communicating with the board over those 11 years, is telling. Your Honor, the reason this is so important is because you have to consider what GHI also considered for purposes of reviewing this. What they had to consider, Your Honor, was the same thing Your Honor had at the preliminary injunction hearing. They didn't have the same information that Your Honor had at trial because there was no 2010 Surgeon General's report presented to GHI back when they reviewed this. They did not have the second and third reports of Mr. Repace. In fact, the only complaint GHI was focussed on when it came before them was the inside smoking issue. And what did they have? They had Mr. Schuman coming to them, saying smoking is a problem. And what did GHI do to react? Your Honor, what they did was they considered many things that were brought before them. They took his complaint seriously. They investigated his unit and the neighboring units. They went back in and they looked at them again. They even suggested this worked 11 years ago; we sealed the units; maybe we should come back in and seal again. If you look at the letters that are in evidence, what did Mr. Schuman say? Well, you can try to seal, but I don't think it's going to work this time. Despite the fact
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that it worked 11 years ago before, now he's retained Mr. Repace, and Mr. Repace is an expert on secondhand smoke. He's devoted his life to it. Your Honor, his testimony in court was that this is something that he does for a living; this is his cause. Dr. Munzer even testified the many boards that he serves on. In fact, he's even testified, I think he said, before Congress on the issue of secondhand smoke. But, Your Honor, what does all of that mean? All that means is secondhand smoke, certainly, that there's a cause out there, that it may be bad. But what Your Honor has to focus on here is the secondhand smoke in this context something that GHI acted unreasonably in responding to. Your Honor, in considering everything, they brought all the parties together. But what Mr. Repace's report said, what his letter said and what his testimony before the member complaints panel was was that you could try to seal the unit; it may diminish the problem, but it's not going to resolve it completely. That's important, Your Honor, because while the board was willing, in its letters, to come back in and seal again, it was Mr. Schuman and Mr. Repace who said don't bother; we don't think it's going to work. Your Honor, I think it's somewhat important to
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focus on the fact that Mr. Repace's own testimony in court, as well as in the member complaints panel minutes and what Tokey Boswell and Sylvia Lewis testified to, was that Mr. Repace said that sealing the unit wouldn't work, but he did acknowledge, and he acknowledged it in court, that it could diminish the problem. Why is that important, Your Honor? Because the levels of secondhand smoke -- if you want to talk about the science here, Your Honor had testimony from three experts. I'm not going to substitute my interpretation. I'll let Your Honor evaluate that. But, Your Honor, the -- no pun intended -- smoking gun, if you will, was the fact that Mr. Repace himself, in court, turned on that particle monitor, the same particle monitor that he used to test Mr. Schuman's unit. Your Honor, I did not smell cigarette smoke in this courtroom, but Mr. Repace's machine got a reading, the same reading that he got in Mr. Schuman's unit. That's telling, Your Honor. Are we saying that if there are such low levels of particles of secondhand smoke detected in this courtroom, that that should create a cause of action for all the individuals in here? Is that reasonable? Is there some level that should matter for purposes of measurement? Your Honor, Congress, the State of Maryland and Greenbelt Homes, Inc., have all heard about secondhand smoke.
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They've all considered it, but nowhere in the law, as of today, Your Honor, is it banned. Has the Surgeon General gone so far -- or forget the Surgeon General. Has Congress, Your Honor, or the State of Maryland gone so far as to say secondhand smoke is so bad, we're going to outlaw smoking altogether so that no one is ever exposed to secondhand smoke. They haven't gone that far, Your Honor. In fact, Your Honor, you did take judicial notice of the 2006 Surgeon General report, along with the other Surgeon General report submitted. But, Your Honor, what was before GHI's board, and which is the same factors Your Honor is considering, is the information from the 2006 report. Your Honor, I actually took the time, believe it or not, to read some of the report, despite its length. Your Honor, I think it's very telling. If you look at page 65, where it talks about its conclusions -- and we heard testimony from Mr. Repace, that the Surgeon General has said that there is no safe level of secondhand smoke, period. Well, that's not exactly what the Surgeon General's report said, if you actually take the time to read it. What it says was, and I quote, "the evidence for underlying mechanisms of respiratory injury from exposure to secondhand smoke suggest that a safe level of exposure may not exist; thus, implying that any exposure carries some risk," period.
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So, Your Honor, the Surgeon General's report doesn't say that secondhand smoke is so bad that it's dangerous in every situation and we should ban it and outlaw it completely. It doesn't say that. In fact, if you look at the law books, they haven't done that yet. So, Your Honor, how is GHI, how is their conduct unreasonable in the same context that we're considering all this? Your Honor, I submit that it's not, and there's been no testimony to suggest that GHI's conduct in responding to this was unreasonable. And if it was not unreasonable, they can't be negligent. Your Honor, I would submit to you, what should they have done differently? They considered the information, they analyzed it and they made a decision, all proper conduct for a board of directors. Your Honor, going to the issue of the implied covenant of quiet enjoyment, again, Your Honor -- which does, as Your Honor pointed out, that relates to a contract -- but at its very core -- again, let's step back and take the common sense view of this claim. That claim focuses on was there substantial and unreasonable interference with Mr. Schuman's use of his property. That's where the focus is for this claim. Your Honor, in the context of the testimony that you've heard, I submit to Your Honor that the evidence does not support, in a
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residential cooperative, close-quarter type living, an unreasonable interference of a substantial level. Your Honor, a breach of covenant of quiet enjoyment is defined as a failure to provide something that goes to the essence of what the landlord is to provide. Your Honor, we cited this in what we submitted to the Court, but, Your Honor, again, the covenant operates insulate, again, from acts or omissions on the part of the landlord which interfere with the tenant's right to use and enjoy the premises for the contemplated purposes. So residential property, residential living. Mr. Schuman submitted no testimony, there's no evidence that it was ever to a point where he had to vacate the unit. Your Honor, the reason I cite to that is I'm not suggesting that you cannot find a substantial interference if the person doesn't vacate, but that's indicative and it gives an indication of what level that this person was experiencing in terms of this evaluation of was there substantial interference. Your Honor, we've cited to a few cases that go through that and give examples of when is it substantial interference. Your Honor, I think you need to focus on the context, again, of what we have here. You heard testimony again from Tokey Boswell, Sylvia Lewis, Gretchen Overdurff, Mr. and Mrs. Hammett, Mr. Schuman himself, and Mr. Gervasi,
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who was his expert, who also actually used to be a resident of GHI. And Mr. Popovic as well. What did all of those individuals talk to you about? About when you live in GHI, there's some things you tolerate; there's some things you kind of expect that you're going to have occur. These are close quarters. These units were built many, many years ago. You heard Mr. Schuman's testimony about the long history of GHI. It's a fascinating history, but what it tells us is these units are old. Everybody knows this. There's things that you have experienced. You hear noises from next door. You smell your neighbor's cooking. As Ms. Sylvia Lewis testified, as long as it's Italian cooking and garlic, she's okay with it. So there's things that you expect. And everyone testified to the fact that they smelled or experienced something at GHI that they may not have liked, but they knew they had to kind of tolerate it in living there. That's reasonable. That's what they expected. Was Mr. and Mrs. Popovics' smoking a substantial interference with Mr. Schuman's use in the eyes of GHI, who are left to evaluate it? Well, they look at it in the context of there's smoking that's allowed in this community. It's not even been suggested that they ban smoking within the units. Your Honor, you heard testimony from Mr. Schuman,
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as well as Ms. Overdurff, about what's out there in terms of the realm of -- if somebody wants to ban smoking within the units, is there a mechanism for it? Can you change the rules? Absolutely. Mr. Schuman says that's not my issue; my issue is what I experienced. Well, Your Honor, I submit to you that to some degree, as a member of GHI, Mr. Schuman has some responsibility here as well. If he doesn't like the fact that people are allowed to smoke within their units, go to the board and propose that it be changed. If the board wants to adopt a rule that bans smoking within the units, then that's a different situation. Then the Popovics are left with the inability to smoke in their units. But as the law exists in Maryland, as the law exists in this country, and as the law exists in Greenbelt and Greenbelt Homes, Your Honor, smoking is a permitted activity within the units. Does that mean that it can never rise to the level to constitute a potential interference with somebody? I'm not saying that, Your Honor. Look at the case law that we submitted to the Court. Your Honor, there's a Florida case, and in that Florida case you had five to six cigarettes going in, being smoked. You had the other case, Your Honor, Lipsman, where you've got a nonsmoking tenant who sued, again, alleging
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nuisance and negligence in that case, Your Honor; about somebody's activity that was so pervasive, in terms of smoking, that it arguably interfered with them. Again, Your Honor -- and as the Court knows, "a plaintiff may truly suffer from the smoke which ascends from the defendant's apartment; however, the plaintiff's failure to take any constructive steps to alleviate the situation indicates the resulting harm was not as severe." What does that mean? It means you have to evaluate the actions of the plaintiff as well. And I'm not saying that Mr. Schuman has done anything wrong here. I'm just saying you need to evaluate his testimony in the context of what actions he took. What did he tell you, Your Honor? He closed his window when the smoke was coming in from the outside, and that seemed to alleviate the problem. He would move to the other room on certain occasions, Your Honor. But as Mr. Popovic's testimony brought out to the Court, Your Honor, Mr. Popovic is a man who works full time. He's out of the unit most of the time. He comes home and, Your Honor, based on the number of cigarettes he smokes -and, again, it's lessened over the time since this case started -- if you take it and you give it a liberal interpretation of Mr. Schuman's claim, maybe an hour, an hour out of a 24-hour day, of his ability to own a unit in GHI
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that he cannot leave his window open. That assumes, Your Honor, that he would leave it open all the time anyway. So is that a substantial interference? I submit that it's not, Your Honor. Your Honor, when you talk about the Florida case, again, Merrill versus Bosser, those involve facts far more egregious, far more substantial than has been presented here. A several-pack-a-day smoker, to the point where people had to leave their unit to find other accommodations because it was so pervasive. You don't have testimony like that in this case, Your Honor. And even if that case, Your Honor, the Court evaluated the situation and said it's not a question of whether there's secondhand smoke; it's whether there's an unreasonable level. Your Honor, based upon the testimony, I don't think that this Court can find, based upon where we are in society, where the living arrangements and the situation is in GHI, that there's been an unreasonable level to the point where Mr. Schuman had a substantial interference with his use and enjoyment of his property. Mr. and Mrs. Hammett testified about the fact that, on occasion, they smelled smoke in their unit and they dealt with it. They closed the windows. It was expected. Ms. Ipolito testified, Your Honor, that they had the issue. Let's keep in mind, Your Honor -- I don't want to
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overlook the fact that there's two components here; there's the outside smoking and the inside smoking. Your Honor, Ms. Ipolito testified that once the units were sealed, the problem resolved itself. The only thing Ms. Ipolito testified to in court that's still an issue in her mind is, well, when the windows are open and Mr. and Mrs. Popovic are out on their patio, if my window is open, the smoke comes in, that bothers me, I close the window; I use fans and that will alleviate the problem. Mr. Schuman never used any fans. It was reasonable for Ms. Ipolito to do that. Again, should Mr. Schuman have a different standard that's applied to him? Again, all in the context of GHI. Was his closing his window so substantial? Your Honor, again, I think it's important for purposes of all of these claims, the two against my client, the negligence and breach of the implied covenant, at the end of the day, Your Honor, both of those claims, at the end of the day, require Your Honor to determine -- even if you believe that those elements are there, both of those claims, Your Honor, have a final element which has, again, failed to be presented by plaintiff, and that's damages. Despite Mr. Szymkowicz's 11th hour, in an effort to this Court to suggest you leave the record now open for another two weeks, Your Honor, I submit to you his case was closed long ago. He did not meet his burden. He cannot come
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in, after the case is closed and in the midst of presenting closing arguments, just try to throw more evidence into the record. Your Honor, the Maryland rules do not permit that, and Your Honor should not leave the record open. He did not submit any evidence of damages. Moreover, Your Honor, interrogatories were served, depositions were taken, and still, today, Your Honor, standing here, we have no invoices of any medical treatment, nor do we have testimony about actual damages suffered, whether it's damages to his property, as he claims. Your Honor, he sued for $300,000 in compensatory damages, $300,000 in punitive damages. Your Honor dismissed the punitive damage claim, rightfully so. So the $300,000 compensatory damage claim, where's the basis to award one cent? Because you have no evidence, nothing submitted into evidence, Your Honor, whatsoever to give rise to a dollar figure. Mr. Schuman's -- the only dollar figure I ever heard testified to in this case, Your Honor, was Mr. Schuman's testimony about what he thinks his property is worth today. Your Honor rightfully ruled he has the right to testify what he believes it's worth today. But, Your Honor, there's been no testimony from Mr. Schuman, no testimony from any expert as to the diminution of value to that property resulting from anything that GHI did. No testimony
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whatsoever. Not that there's a number and nor how any number submitted would even be linked to what GHI did here that would equate to a damage number. There's nothing, Your Honor. There's no medical invoices, nothing about so-called medical damages. There's nothing submitted with respect to diminution of property value. So there is nothing that Your Honor has before it to award any damages either on negligence, even assuming you find the other elements are met, or, Your Honor, if you believe that there's some interference, that there's any damage calculation you can ascertain from Mr. Schuman's presentation of his case. The burden has not been met. He didn't submit anything. Your Honor, with his claim to attorney fees, I'm not going to spend a lot of time on that, Your Honor, but I'll say this. That's another last ditch effort to throw something in. Your Honor, the American rule has been improperly cited by plaintiff in his brief. Yes, the American rule is there. He cites to a case that talks about what the American rule is, but, Your Honor, the facts of that case don't relate to this. The facts of that case don't even go through the analysis of when a third party claim exists that gives rise to the award of legal fees. It's not there. And, Your Honor, in the context of this, we're all
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here. He wasn't forced into litigation with a third party as a result of GHI's conduct. He sued both defendants in the same action, separate causes of action. There is no support whatsoever, under the law, for the award of attorney fees. Again, Your Honor, I'd submit to you not even an invoice, not even one shred of testimony about proof of what he spent in legal fees, irrespective of the fact that he cited to a standard that doesn't apply in this case. Your Honor, at the end of the day, we don't believe that Mr. Schuman, with respect to his claim against GHI, the negligence claim, or the breach of covenant of quiet enjoyment, has met his burden of proving elements of either claim, nor is there any testimony, evidence, anything that equates to damages. Your Honor, I feel the need -- because, for purposes of closing argument, I've got to make this clear, Your Honor. We have to talk about the defenses that have been raised. I'm going to do that briefly, Your Honor, but it's important. Your Honor, we raised this issue in the preliminary injunctions hearing. We raised it again during trial in submitting some evidence to Your Honor. We noted that there's a couple of defenses here that are applicable, some of which relate to waiver and estoppel, the fact that Mr. Schuman, if you buy his argument, if you accept his
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argument that the problem existed throughout, from 1997 all the way through to now, the problem never changed, well, then, Your Honor, he lived there for 11 years and never said boo about the secondhand smoke. So if you buy his testimony that it was continuous, irrespective of the evidence of Plaintiff's Exhibit Number 21, if you believe him, that it existed throughout, for 11 years it went by and he never raised it, under the case law that we've cited, Your Honor, for the breach of covenant of quiet enjoyment, Your Honor, it says if you live with a condition for so long, you've waived it. Not only does it give rise to a question of, well, how could it have been substantial, but you've waived it. You didn't raise it in those 11 years; how could you raise it now? But more importantly, the testimony in this case is important with respect to -- and, Your Honor, I must say that I got the sense from the Court that it wasn't inclined to hear this argument, but I do feel it is necessary. Based upon the evidence, we have to put it forth. The idea of contributory negligence in Maryland, Your Honor, with respect to the negligence claim, what does that mean? It means that plaintiff's conduct in any regard, even a small piece that may have contributed to his own injuries, is a complete bar to recovery. Your Honor, why is that important here? Your
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Honor, if you review this record, you will find a couple of things. This is a diagram of the first and the second floor units of Mr. Schuman. Your Honor, what's highlighted in yellow are the sections that I went through with Mr. Gervasi, and Mr. Schuman as well, in terms of where renovations were done in his unit. Your Honor, after the 11-year silence, in January of 2009, Mr. Schuman again begins his efforts with GHI to raise the issue of secondhand smoke. It's important to know what happened in the few months preceding that. What did happen? Mr. Gervasi did substantial and complete renovations -- let's start down here on the first floor -- to the kitchen. What did he do? He ripped it all the way down to the studs. Remember his testimony? They ripped it all the way down to the studs. They completely ripped out this wall, down to the studs. And this is the adjoining wall to Mr. and Mrs. Popovic's unit. He did work in the bathroom, in the kitchen, all the kitchen appliances, all the countertops, on the stove. He even ran conduit piping, Your Honor, from the existing electrical panel on the top of this wall to the closet. Why is that important, Your Honor? All of these yellow areas indicate where the renovations were done. Why is that important? Because these red circles, Your Honor, track with the testimony of Mr. Schuman in court,
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and, more importantly, Your Honor, in the letters that are submitted into evidence, in terms about his complaints of where he felt the problem occurred. Your Honor, in the 2009 timeframe, where did Mr. Schuman complain about the secondhand smoke? The bathroom on the first floor, next to the kitchen. The kitchen area itself, you remember his testimony. "When I was cooking for the Hammetts, I smelled the smoke that one occasion." And, Your Honor, more importantly, the closet. I was thinking to myself, Your Honor, how could the smoke smell get into his closet that he complained about? Mr. Gervasi's testimony reminded me. He ran conduit, electrical conduit from the existing electrical panel, next to the Popovic wall on this side, across to the closet. In essence, Your Honor, Mr. Gervasi's own work created a channel, if you will, that would allow smoke to waft over there. That's the only rational explanation for how smoke gets in that closet across the other side of the room. Because there wasn't a complaint about smoke smell in the living room. It was the dining room, the kitchen, the bathroom, and the closet, all the same places where Mr. Gervasi did his work. And, Your Honor, on the second floor it's even more telling. Mr. Schuman's complaints was, again, there was the
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smell of smoke in his master bathroom and he smelled it in the bedroom as well. Your Honor, where did Mr. Gervasi do his work? He ripped out this entire master bath and redid the whole thing. You saw the pictures. He did a nice job, but in doing that nice job, he ripped it all down to the studs again, the same wall that borders the Popovics. And, Your Honor, here he did work, again, over here in the washer/dryer room. No smell of smoke over there. But, then again, there's no conduits on this side. So these red circles are indicative of where the smoke was complained about. And, Your Honor, if you compare those to the letters from Mr. Schuman in Defendant's Exhibit Number 6, Defendant's Exhibit Number 7, Defendant's Exhibit Number 9, Defendant's Exhibit Number 12, and Defendant's Exhibit Number 17, those are all the letters from Mr. Schuman between November of '96 and September of '97 complaining about smoke before the sealing of the units was done by GHI. And those complaints, Your Honor, if you look at those letters, they're not the same locations that he's complaining about now. He says the smoke smell was everywhere. He smelled it in the master bedroom. He smelled it downstairs. But, Your Honor, the specific complaints that he raises now, in 2009, are more specific. He doesn't say he
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smells it everywhere. He smells it in these locations. Your Honor, it can't be coincidence that those are the same, exact areas where that Mr. Gervasi did his work. And, Your Honor, if you look at his 2009 letter, Plaintiff's Exhibit Number 27, again, Your Honor, he said it himself. The issue was raised many years ago and resolved, and his conduct demonstrates that that's exactly what happened. You can't ignore that fact. His own words, Your Honor. So again, Your Honor, we submit to you that based upon what you have in evidence, Your Honor, the claims against GHI must fail. And, Your Honor, to the extent that you somehow find that the elements were met and there's some cause of action, there's no damages. Even if there were, Your Honor, the defenses in this case bar his recovery, because, Your Honor, his own conduct, if anything, even if it's one degree, contributed to his own problem when Mr. Gervasi did the work. Thank you, Your Honor. THE COURT: Mr. Popovic. CLOSING ARGUMENT BY MR. POPOVIC MR. POPOVIC: Your Honor, I would like to make a very brief summary of this case and what it is about and, also, to stress some important moments and facts. The case has three phases. It began in 1996, a
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couple of months after my family moved into Unit R. Our first door neighbors complained that cigarette smoke was penetrating the walls between our units. GHI organized, as you know, resolution meetings. The problem was examined from a number of points and the proper measures were taken. GHI did everything they could. All possible and probable cracks in the walls, between walls and ceilings, walls and floors, were sealed. A professional firm even measured the air and it seemed that everything was perfect. We hoped that the problem was solved to everybody's satisfaction. Except at the last meeting. At that time one of the neighbors asked whether she was supposed to watch us smoking in our yard. With that question, Your Honor, I would say that we came to a completely new level, from a health danger, to a new visual level of unpleasantness of seeing somebody smoking in the vicinity. The second phase began with a letter dated January 4, 2009, with conventional seasons greetings and remark that over the past several weeks, on occasion, cigarette smoke has been entering my apartment from the side closest to your unit. Over the past several weeks, on occasion, cigarette smoke. What had been happening in between, during the previous 12 or 13 years? Nothing on our side of the wall.
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My wife and I had been smoking neither more nor less than before. In fact, my wife was smoking less because she doesn't like to go out while at college to have a cigarette between her lectures. Otherwise, at home everything was the same, except that Mr. Schuman, on the other side of the wall, undertook extensive adaptation work, demolished some walls and probably penetrated through some isolation layer. It is also important to note that at about that time, Mr. Schuman met his expert for secondhand smoke, who put certain devices in Mr. Schuman's unit and measured the air quality regarding pollution with smoke. In fact, scent of smoke of the secondhand smoking. This is the beginning of the third phase of this case. Mr. Schuman and his expert, who dedicated a huge part of his professional life to the campaign against smoking, joined forces and, of course, two crusaders are stronger and more eloquent. Suddenly, in a moment, occasional cigarette smoke became a foremost health danger, which causes a whole range of various lethal diseases and disorders, although Mr. Schuman has still not submitted any proof of this. Anyway, he decided to file a lawsuit against me and my wife and, also, as it is known, against Greenbelt Homes, Incorporated. Mr. Schuman decided, after almost 80 years of this community's history, to make things right, to prohibit smoking to one of its members in an environment in which
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smoking had never been prohibited. Several weeks before this lawsuit was filed, my wife was diagnosed with a brain tumor. We immediately stopped smoking inside, which means that the main reason for this lawsuit ceased to exist. I cut my smoking outside to a couple of cigarettes. And when I say a couple, I mean what I said a lot of times during the depositions and preliminary court trials. I mean one or two, depending on the day and various difficulties that I am facing periodically; not more than that. I want to stress that I am sure that the scent of smoke of a couple of cigarettes smoked outside is not and cannot be a nuisance. But I am also sure, Your Honor, that all this presents a huge harassment both for me and especially for my wife. Mr. Schuman is jumping out of his unit with a camera, taking photos of my wife in a wheelchair and me with one of those already mentioned couple of cigarettes when we sit outside, and that's really extremely stressful for both of us. Mr. Schuman said during the deposition that he only wants to be able to sit in his rocking chair and read newspapers. The question is who is preventing Mr. Schuman from doing so? Who or what? Is it me smoking one or two cigarettes outside and, according to his own secondhand smoking expert, more than the secure 25 feet away and,
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certainly, more than 20 feet as it is prescribed in front of the county court in Upper Marlboro? Or maybe we are coming back to the level I mentioned at the beginning, the visual level, Your Honor, of unpleasantness of seeing somebody smoking in the vicinity. Thank you, Your Honor. That's all. THE COURT: Thank you. Mr. Szymkowicz. CLOSING ARGUMENT BY MR. SZYMKOWICZ (Rebuttal) MR. SZYMKOWICZ: Your Honor, Mr. Fisher admitted that GHI had a duty to enforce GHI's rules. And when we had the member complaints panel in 2009, Sylvia Lewis, the GHI board member, took it as a given that secondhand smoke was harmful to Mr. Schuman and conceded that the member complaint panel was not there to discuss whether or not secondhand smoke is damaging. Furthermore, she admitted that she didn't even read the Repace report. These statements by GHI's board member Ms. Lewis all indicate that the member complaints panel was a big sham. It wasn't ever destined to lead to a real result. They sort of listened to everybody and then, at the end of it, said go deal with this amongst yourselves. That forced Mr. Schuman to take the action that he did here today. He didn't want to come to court. He didn't want to sue his next door neighbor. He didn't want to sue GHI because he's a GHI member. It's like suing himself.
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As GHI's landlord, GHI owed Schuman certain duties to eliminate the secondhand smoke problem. There were several secondhand smoke cases that we cited on page 107 to 114 of our brief. They all basically said that the landlord has a duty to do something about the secondhand smoke problem in the various cases or, alternatively, that the cases gave raise to claims of nuisance because of a neighbor smoking. That is the result that we're asking for in this courtroom today, to fall in line with the courts of the other states that have decided this issue. With regard to quiet enjoyment, Your Honor, the main case in Maryland is the Bocchini case, and that was found on page 121 of our brief. In Bocchini, a woman lived in an apartment when another woman moved in above her and began to, quote, keep company with a man, creating an unbearable noise in the middle of the night, and had an alarm clock that went off at 5 a.m. The Bocchini court found that the apartment owner had the duty to protect the other neighbor from that conduct. Specifically, the Bocchini court said, "the insertion in a lease of a restriction against excessive noise or other offensive conduct is precisely for the purpose of enabling the landlord to control that conduct. It's principle function, at last in a multi-unit apartment lease, is to protect the right of other tenants to the quite
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enjoyment of their homes by allowing the landlord to evict a tenant who transgresses upon that right." Now, Mr. Schuman was never asking for Mr. Popovic to be evicted. That was never something that he would like to have seen. It was a right that GHI had if Mr. Popovic had failed to comply with a reasonable restriction on the smoking. That might have been the final result, but GHI never let Mr. Schuman get to that point because, again, they punted. They forced him to come to court to achieve what he's already achieved in the preliminary injunction hearing and what we're asking for today on the outside smoking, and that is that Mr. Popovic smoke however many cigarettes he smokes a day simply behind his house in the common area. We're talking about 75 feet. We're not asking him to drive in his car anywhere. We're asking him to just simply move away, far enough -- and I think the testimony was about 75 feet that would protect Mr. Schuman from -- and also Ms. Ipolito, from the exposure to Mr. Popovic's smoking. Mr. Fisher talked about HVAC systems and sealing. Dr. Gots testified that HVAC systems cannot eliminate exposure to secondhand smoke. That's their own expert. They're stuck with his answers. The sealing issue was something that this Honorable Court addressed in its preliminary injunction order, and it
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said in the order that there was suggestion that Schuman somehow caused or contributed to the smoke seepage. "The Court finds this suggestion ludicrous, if not outright offensive, under the circumstances." I believe that the Court should find the same language in respect to the argument that Mr. Fisher raised, that Mr. Schuman is somehow responsible for this, because that is truly ludicrous and offensive. There was no legal requirement for Mr. Schuman to vacate his apartment. Where was he supposed to have gone? That's a significant issue with anybody facing a nuisance. There's simply no requirement that they leave to, quote, abate the nuisance. Mr. Fisher talked about the Repace particle monitor study that measured the same amount of background level here in the courtroom that Mr. Repace found at the Schuman house with the windows open. Well, that ignores the complete testimony of Mr. Repace, who stated that there were periods when the particle level would spike, leading to significantly higher readings. So, of course, in the background level it's going to be the same, but there's going to be these spikes when the plumes of smoke come in, and Mr. Repace testified that they were significantly higher than the background level found either in the Schuman home or inside this courtroom. Mr. Fisher said you expect certain things in GHI.
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Well, that's obvious. I mean, everybody said that. Dory Ipolito said that. The Hammetts, I think, said that. Schuman said that. Popovic said that. That's not in dispute here. The examples that Mr. Fisher cited were noise and the smell of cooking. Of course you're going to smell that. But noise, unless it's excessive and offensive under both a decibel level and a time level, you know, those become nuisances. But we're not discussing noise, and the smell of cooking is something that's periodic; it's not going to be all the time. The Popovics smoking is an everyday occurrence that is dangerous. Noise is not going to kill you; the smell of cooking is not going to kill you. Secondhand smoke can and, if doesn't kill you right away, it certainly inconveniences, annoys and damages you, as Mr. Schuman testified and Dr. Munzer corroborated. Mr. Fisher stated that Mr. Schuman could have changed the rules of GHI. Well, he didn't want to change the rules of GHI. That's not what he was looking for. He didn't care if people smoked in GHI, in the common area. He didn't care if people smoked in their own houses. He just wanted GHI to enforce the existing rules here in this case, and that would be the nuisance clause in GHI's contract. The case cited by Mr. Fisher was the Lipsman case
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from 1991. A lot has happened in the realm of secondhand smoke over 20 years. We had the two Surgeon General's reports. We had other reports that indicate that secondhand smoke is just harmful. Moreover, we've had a lot of restrictions on secondhand smoke to protect the public health. In fact, when I practiced -- I've worked for my dad since I was 13 and he's in the courtroom today, and I used t get angry with him because he let his secretary smoke at the desk. And that was in 1991 here in Prince George's County, something that would shock people today. But even in my own office, people smoked, and it was horrible; I have to admit. I think that at least one of the smokers, unfortunately, passed away, which makes it even more sad for the people who smoke. Mr. Fisher said that there might be one hour a day that Mr. Schuman had to close his windows. That's an inconvenience that Mr. Schuman shouldn't have to tolerate. That's one hour a day that he can't go onto his patio and enjoy the day. Both Mr. Popovic and Mr. Schuman work. So, presumably, the hours are not -- you're not looking at a 24-hour day, but the hours that they'd actually be on the patio are probably around three or four or five. If Mr. Schuman can't enjoy those three hours of his day on his
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patio, that's a big inconvenience to him. As I believe Dory and Mr. Schuman both testified, sometimes you want to leave your windows open, you want to go out to the store and come back and let your house air out, but you can't do that because, if you come back when Mr. Popovic had been smoking, there's going to be smoke all over your house. That's not something that's pleasant. The unpleasantness of smoking was corroborated by everybody in this case -- Mr. Popovic; Dr. Gots; Ms. Lewis, the GHI board member; Tokey Boswell, the GHI President; and I believe even Ms. Overdurff, the GHI general manager. With regard to our attorneys fees claim, the computation of attorneys fees doesn't arise in a case where there's an attorneys fee provision until after the case is over. We're asking the Court to award what it considers to be reasonable attorneys fees from what the Court has seen today, throughout the whole case, or, alternatively, allow us to present the actual bills that Mr. Schuman has paid. This is not a contingency case. Mr. Schuman has been paying his bills up through August, I believe is the last bill we sent. We expect to present another bill. But he's incurred significant expenses, and because GHI forced Mr. Schuman to take action against Mr. Popovic, we believe that the exception to the American rule applies and that's something that's clear.
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GHI never rebutted Mr. Schuman's valuation of his house; specifically, the diminution of value of his house. Mr. Schuman said that he's having trouble selling his house and, also, that he, you know, is having to sell his house. If he decides to move, which he's placed his house up for sale, he's selling it at a time when the market is almost at a historical low. He does not want to do that. He does not want to take the hit on the value of his house. Frank, the contractor, testified that he was cognizant of the secondhand smoke problem before beginning work. We had an exhibit that Mr. Fisher introduced before any work was done and said there's some smoke that's coming in; I want you to try to do everything you can to make it go away. So Frank, the contractor, testified that while he was doing the work, he placed sealants everywhere he could. He said you can't place it everywhere because there's so many holes between those walls. GHI inspected and approved Mr. Gervasi's work and, therefore, there's nothing that Mr. Schuman did. I again repeat the Court's language from the preliminary injunction order, that the fact that Mr. Schuman did renovations and that caused his problem is ludicrous and outright offensive under the circumstances. In conclusion, Your Honor, we're asking that the
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Court continue the preliminary injunction against smoking inside and make it a permanent injunction. I don't believe that that's even -- I believe that that's even been conceded by Mr. Popovic because he stated he doesn't even smoke anymore inside. Additionally, we're asking that the Court force Mr. Popovic, if he chooses to smoke, to do so beyond the property line, in the common area, at a distance of 75 feet from the doors and windows. Again, if he's smoking two or three cigarettes a day, that shouldn't be unreasonable for him to do that. Finally, we're asking the Court to award reasonable damages that Mr. Schuman has suffered because of this. The monetary damage is always something that's hard to calculate, but I think that the Court, in its infinite wisdom, can look at the inconveniences, annoyances, aggravations that Mr. Schuman has suffered from having to live in this condition. It's not something that's pleasant. It's not something that people should have to endure as a consequence of living in a multiunit dwelling. And then, of course, Mr. Schuman has suffered the medical injuries that Dr. Munzer corroborated -- the watery eyes, the congestion and the coughing. Those all can be summarized in a monetary award against GHI and Mr. Popovic. With that, we conclude.
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THE COURT'S RULING THE COURT: Let me first thank everybody involved for a very professional, certainly courteous presentation, as well as one that I mentioned previously, is not something that we see every day. At the risk of implying boredom with red light cases, which is not the case, I must say that this is certainly something that maintains one attention, perhaps more so than some of the who-ran-the-red-light cases. I'm the trier of fact. If this were a jury trial, it would be a simple matter. I'd spend three minutes checking off boxes, at least for the first six counts on a verdict sheet, hand it in and walk away. That's not the case here. I feel, certainly, constrained to take quite a few moments to put my thoughts together and go over this case. The case law was, in my view, substantially reviewed at the preliminary injunction phase. I don't think we have to go over that again; certainly, counsel is familiar with it. There may have been a question about limitations. Each instance would create a new cause of action, I think, so I don't think limitations would apply. Every day that we try jury cases, we give instructions on the law at the end of the case. And on two or three occasions in those instructions, I tell the jury, depending on the instruction, to take into account the common sense and everyday experiences. Since I'm trying this as the
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trier of fact in this case, I feel that it's only appropriate that I give the parties here a little bit of background, my own common sense and everyday experiences. My dad was a smoker, a lifelong smoker. I grew up in a house with a smoker and lived there until I went away to college and lived with that. And I was asthmatic as a child, growing up, which, perhaps today, would be proven to be even more problematic than people realized many years ago. For my part, I seem to have survived it well. I'll run the Jug Bay 10K Saturday and I think I'll do okay. I usually do every year. On the other hand, my sister, my oldest sister was a lifelong smoker. She died of lung cancer back in 2001, and there's no question that smoking killed her. I was at my law office some years ago. I was the managing partner who banned smoking in that law office. And so all of these things have played in my mind, and I think back about many of these experiences while listening to this trial, and I figure that it's appropriate that the parties know a little bit about my common sense and everyday experiences. The original courthouse actually was down off Mt. Calvert Road. It was built with tobacco money for Prince George's County. The county seat moved to this location. The original courthouse at this location was built using
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tobacco profits and barter, in large part, using tobacco. Today you cannot smoke in this building. Smoking in this building has been banned for some time. There are smoking areas. You'll see people, and I'm sure you have during the course of this case, sitting out on the little brick wall out front of the courthouse, some distance away from the front door, and there will be smoking outside because smoking is banned inside this building. It is a smoke-free building. Having gone through some of that, I mentioned previously that I did not find -- and we're going to start with Greenbelt Homes, Inc. I didn't find any bad faith on their part. We previously disposed of the punitive damages claim. They helped to negotiate this. They originally did the sealing some years ago. They assisted with the member complaint process. They certainly didn't -- there was some suggestion that maybe there was -- that Mr. Schuman move. That suggestion would have certainly been ludicrous and certainly would have been outrageous. On the other hand, GHI is a smoke-free community. There's a membership. There's a -- we'll call it a majority rule type situation. You go to the membership panel. They make a decision. There was a point in this case where Mr. Schuman
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said he didn't realize he could take it further to the membership. There is a handbook. The procedure is there. If he chose not to take advantage of that, that's his decision. And I'll note that there were no other complaints. I do feel the business judgment rule applies in this case, and I think that they have complied with that. But let's turn to some of these other efforts. The first effort at sealing. Mr. Schuman says that it didn't fix it. He says, instead, that the Popovics changed their smoking habits and, therefore, it was not a problem from 1998 to 2008. On the other hand, Ms. Ipolito, who is on the other side of a fire wall instead of just a hollow wall, says that she continued to smell smoke during that period of time. At the original hearing, we talked about the renovations and, yes, I thought that a suggestion that those renovations caused the problem was just not appropriate. I didn't have all the testimony then. There was a contractor. We didn't have all the details. We didn't have the testimony that kind of narrowed down and identified the space involved and where the smell was and the nexus to where the renovations took place. I cannot say that Mr. Schuman is negligent or contributorily negligent based on the renovations. But at
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the same time, I can look at that and I can't totally rule it out. Therefore, it goes to the plaintiff's burden of proof as to what caused the issue. But even then it would be a moot point if we are only talking about outside smoke. And I'll mention it, but we're going to take care of inside smoke by consent, so it becomes a moot point. I'm going to bring it up a little bit later when we talk about what happened starting in 2009. I want to turn to some of the expert testimony. Mr. Repace did not calculate the risk from outside smoke coming in. His study didn't measure secondhand smoke from outside, with the windows closed. He says he cannot ignore the -- well, there was the in-court testimony that was mentioned previously, and it showed two nanograms, I believe it was. This was similar to the measurements in Mr. Schuman's house and that question came up. And why is that? And the answer was because the courthouse gets its air from the outside. Well, Mr. Schuman's house gets its air from the outside as well. So, in this, we're still learning. The standards are evolving. This is virtually a quote. This is the last, great unresolved area. He said at the first hearing, for example, secondhand smoke dissipates in 25 feet. In the next hearing he changed his view based on new data. So one must ask what
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will tomorrow's new data be? It's, as he said, an evolving area. Dr. Gots testified. But both these people may have some bias. Mr. Repace clearly has -- this is a significant and admirable effort on his part, the secondhand smoke issue. He is also a father of a friend of Mr. Schuman's. He's dedicated himself to a 15-year fight against secondhand smoke, so he may have a bias in that record. Dr. Gots, on the other hand, was specifically hired by the defendants. Might be considered to be what we call sometimes a hired gun. Dr. Gots made some very good points. Putting things in perspective, a penny is 2,500,000 micrograms. He mentioned that the risk model presented is population based. While Mr. Repace applied it to one individual, neither of these people can say that Mr. Schuman did or didn't suffer any significant injury from secondhand smoke. They admit that. Dr. Gots does say that, as a policy statement, there is no safe level of secondhand smoke. Mr. Repace agrees, in that the surgeon general report is not regulatory but is, rather, a policy statement. Let me note, with regard to the surgeon general's report, I took judicial notice of those. I took judicial notice because they were otherwise hearsay, and certainly
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would admit them as evidence to be considered. But, on balance, I would lean toward Mr. Repace's testimony in that, in my mind, secondhand smoke is not good. It's harmful. It presents a risk. Dr. Munzer mentioned that the surgeon general's report is, quote, the gold standard. Dr. Munzer didn't examine Mr. Schuman. He reviewed the records. His reaction to secondhand smoke may be transient and is, quote, minor. There are, he says, he admits, other possibilities. Finally, he says there is no specific likelihood that Mr. Schuman will develop a disease due to secondhand smoke in this case. Dr. Granite says smoke contributes to Mr. Shuman's symptoms. That was when inside smoke -- Dr. Granite's evaluation, that was when there was inside smoke coming in through the walls. The report of Dr. Granite was not admitted. However, there was testimony that was made on the record, and he said that it was a possible influence on the symptoms and, quote, the plaintiff or Mr. Schuman appears to be well. He was able to provide no direct or specific link to any medical problem by Mr. Schuman related to secondhand smoke. Let's move on to another area, and that is mitigation. Kevin Hammett said closing the windows stops the smoke. The suggestion is that for 20 minutes a day, you close the windows on that side of the home and, if Kevin
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Hammett is to be believed, that would take care of it. Perhaps a better solution would be to put a 20-inch exhaust fan in the kitchen window, open a window on the other side of the unit, bring in fresh air into the unit, and blow away any chance of secondhand smoke coming in. I'll talk about, once again, my everyday experiences, and this really doesn't -- certainly not dispositive, but I have a pilot's license. If you have a pilot's license, you learn about prevailing winds. You take off into the wind; you land into the wind. The prevailing winds in this area are 330. The wind comes out of the northwest most of the time. There was even testimony in this case, and for some reason I seem to recall somebody talking about it, the proximity of these units was testified to. The prevailing winds, more often than not, would blow away from Mr. Schuman's home toward Mr. Popovic's home. So more often than not, smoke would blow toward Ms. Ipolito, not toward Mr. Schuman. But that's just mother nature. We can't rely on her one way or the other. I must note that there was some talk about diminution of value of the home. Mr. Schuman is certainly qualified -- any person is qualified in Maryland to testify to the value of their own property, their opinion. That's an opinion. It's their opinion, to be taken as evidence and
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considered with all of the other evidence. I can't ignore the fact, and I mentioned it during the trial, that he then, perhaps, sabotaged any possible sale by making an unrequired disclosure regarding the secondhand smoke. We didn't have any testimony from a licensed realtor about the diminution of value of the property, whether or not the diminution was due to secondhand smoke or just the market as it is today. The housing market is down. Nobody in the room would dispute that, I don't think. So I have no real evidence of what, if any, damages might have occurred as a result of the secondhand smoke as it relates to the diminution of value of that property. In its present posture, to grant a permanent injunction for outside smoking would set a precedent for not just condos or town homes, but for even single-family homes. Think about this. There are areas in the county where the setback for single-family homes is eight feet. For a number of years I lived in a home that was 20 feet away from my neighbor's home. So we're not just talking about the added inconvenience from close proximity of a town home or an apartment complex, but if we apply the 20-foot standard or perhaps, the expanded 75-foot standard, single-family homes would be involved. Anybody in any home 75 feet away, if we
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use that number, could bring the action. When I lived in that home that was 20 feet away, the windows faced each other. It was less than the 25-foot standard. The neighbors I had up until a few months ago, at the home where I am now, often sat right in front of their garage and would sit out there and smoke. It could not have been more than about 35 feet from my bedroom window. Periodically, if the window was open, I knew that they were smoking. So that would apply not just to the added difficulties from living in close proximity, but to any single-family home within 25 to 75 feet. The legislature has looked at this, both state and federal. There's no smoking in restaurants in the State of Maryland. You cannot smoke on an airplane. You can't smoke in the courthouse. I mentioned that a few moments ago. This is a legislative decision. The legislatures looked at secondhand smoke. They've looked at that issue, and they've made a determination, and they have chosen, at least up to this point, not to ban secondhand smoke generally or all smoking or to limit it to certain smoking areas. We hear about activist courts. I'm not going to take a position one way or the other as to whether I'm activist or not, but I do believe and I'll tell you right now
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that I think if this decision is to be made, it is a decision, in my view, that's going to have to be made by the legislature. There are any number of things that are inconvenient and annoying. Hurricane Irene was certainly a nuisance. That was mother nature. We couldn't prevent it. We could try to minimize the damage by preparing for it. We could certainly correct the damage or repair the damage afterward. This is a little different. This is a voluntary act. This is something that can be banned or not. My point is that not all nuisances are necessarily actionable. Driving can be dangerous. If you step off the curb, it's dangerous. There are risks involved. Driving isn't banned. It's a danger to people. There are accidents every day. Millions and perhaps billions of dollars in damages, but we don't ban driving, obviously. These things are regulated. Smoking has been regulated. The legislature has made that determination as to how to do it. Without a more specific and clear expression -and, again, remember that the plaintiff has the burden of proof -- of an actual harm, not just from an admittedly offensive odor, I cannot find that there is an actionable nuisance in this case. There are many nuisances in life; not
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all of them are actionable. There's a question as to whether or not this is a nuisance per se, which would be an act, occupation or structure -- I'm quoting from the opinion of the Court of Special Appeals -- which is a nuisance at all times, under any circumstances, regardless of location or surroundings. Well, smoking out in front of this courthouse is not found to have been an actionable nuisance. That's one of those locations. That's a surrounding. If you go to a smoking bar, it's not banned there, by definition. So I can't find that it's a nuisance per se. It's not something that is a nuisance at all times, under any circumstance, regardless of location or surrounding. My one fear is I've gone through all the submissions, I have my little yellow tabs, and I'm sure I'll forget something. So give me a moment to make sure I don't. I had made a note to myself. There was an interesting case. When we talked about offensive odors, and there was the case about the hamburger joint in Washington, D.C. There's a little bit of a difference there. That's an actual harm they found there, and it was an all day instance, not just 20 minutes or 40 minutes out of a day or even an hour. A little different. I guess the real key in this case -- and I'll quote from one of the cases previously quoted from, the Maryland
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case, Five Oaks Corporation versus Gathmann. "It is true that there are certain inconveniences and discomforts incident to living in a city or a thickly-settled suburban community. These discomforts must be endured as part of the privilege or at least of the fulfillment of the desire of living in close proximity to other people. These discomforts must not be more than those ordinarily to be expected in the community and incident to the lawful use of the offending property or business. If they exceed what might be reasonably expected and caused unnecessary damage or annoyance, then the Court, in an appropriate case, will ask." I can't find, in this case, that it is unreasonable, and I will quote from Mr. Schuman, and you can find this on his supplemental brief at page 25. He's talking about the symptoms and respiratory issues. "I experienced them when I experienced the smoke. I didn't experience them when there wasn't smoking, and I didn't experience them when the Popovics stopped smoking inside." That's his testimony. Having said all of that, I find for the defendant in count 1. I find for the defendant in count 2. I find for the defendant in count 3. I find for the defendant in count 4. I find for the defendant in count 5. And I don't know what the standard of care is for the board in this case.
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I don't have sufficient testimony. I find for the defendant in count 6. I am not going to issue a declaratory judgment that all secondhand smoke is bad or a nuisance per se or must be banned. The preliminary injunction is moot. I will find for the plaintiff in count 9, to the extent that I will grant, by consent, a permanent injunction with regard to inside smoking by Mr. and Mrs. Popovic. Beyond that, I will find for the defendant in count 9. It's been a long case. I hope I've given sufficient record for everybody to go wherever they go from here. Do I find irreparable injury in this case? No, I can't: Let me make sure I haven't missed anything else. I can also quote Mr. Popovic. Earlier on he said, "this is the wrong example, the wrong case and the wrong time" or something to that nature, and I think that's, perhaps, a good summation of the case. Thank you. MR. SZYMKOWICZ: Thank you, Your Honor. MR. FISHER: Thank you, Your Honor. THE DEPUTY CLERK: Do you want the exhibits returned? THE COURT: Yes, we can return the exhibits. MR. SZYMKOWICZ: Your Honor, are we allowed to take
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the surgeon general's reports? THE COURT: My view is you're officers of the Court. You're not going to destroy or tamper with or fool with the evidence -MR. FISHER: I don't have a problem with that. I just want to make sure the record is complete. (The trial concluded at 1:45 p.m.)
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REPORTER'S CERTIFICATE
I, Cindy S. Davis, an Official Court Reporter for the Circuit Court for Prince George's County, Maryland, do hereby certify that I stenographically recorded the proceedings in David Schuman versus Greenbelt Homes, Inc., et al, CAL10-06047, on November 3, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers 1 through 63 constitute an official transcript of the proceedings as transcribed by me from my stenographic notes to the within typewritten matter in a complete and accurate manner. In Witness Whereof, I have affixed my signature this 28th day of November, 2011.
___________________________ Cindy S. Davis, RPR Official Court Reporter

Schuman v. Greenbelt Homes - Record Extract Volume 3 of 4

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Schuman v. Greenbelt Homes - Record Extract Volume 3 of 4

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IN THE COURT OF SPECIAL APPEALS OF MARYLAND --------------------------------------------------------------------------------------Number 2020 September Term, 2011 --------------------------------------------------------------------------------------DAVID S. SCHUMAN, Appellant v.

Counsel for Appellant David S. Schuman

BEFORE: HONORABLE ALBERT W. NORTHROP, Associate Judge

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Jason Fisher and Michael Goecke on behalf

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satisfy the requisite elements of negligence.

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of the standard of care by this Board. derivative action.

Even if it were, Your Honor, again

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by the Business Judgment Rule standard.

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that implicates, again, the Business Judgment Rule. not required.

It's something that they may do, and, Your

Business Judgment Rule on Application of Contract.

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not hear talking about a breach of contract case.

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The breach -- I'm sorry.

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In Bocchini, the Court observed that a

insertion of, in a lease, of restriction against excessive

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They didn't, and that they steadfastly

enough to say, well, they didn't act in good faith.

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No indication of fraud, no indication

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That brings up the next issue.

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MR. SZYMKOWICZ: THE COURT: Okay.

I can e-mail it at the break.

Probably -- Court's Indulgence,

We'll know after lunch,

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MR. SZYMKOWICZ: calling of Dr. Gots.

Your Honor, we objected to the

In any event, we asked for, in

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Plaintiff chose just to limit that

If he had a problem with any

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complied with all the deadlines.

We have produced all the

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is a rule on witnesses, the experts can stay; they can

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Good morning, Dr. Gots. Good morning.

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