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Hotel Bed Bugs Don’t Warrant Punitive Damages, Judge Decides (Milford Plaza bed bug case)

nobugsonme — Sat, 29 Mar 2008 18:31:42 +0000

Daniel Wise of the New York Law Journal reports that

In a ruling of first impression, a Manhattan judge has scratched a request for punitive damages in a bedbug case.

But the judge, Acting Supreme Court Justice Judith J. Gische, let go forward the negligence claims of two Maryland tourists for bites they sustained during a two-night stay at the theater district’s Milford Plaza.

The tourists, Debra Grogan and her adult daughter, Dana, are seeking $2 million in compensatory damages and an unspecified amount of punitive damages.

In rejecting their request for punitive damages, Justice Gische referred to a New York City Department of Health pamphlet in ruling that the two women had failed “to raise a triable issue of fact whether bedbugs are anything more than a nuisance.”

It’s important to understand that the plantiffs are still able to proceed with their claims for $2 million in compensatory damages for negligence. Only the request for punitive damages has been rejected.

What is interesting here is that in making this decision, the judge apparently cited the NYCDOMHH Bed Bug Fact Sheet, which asks and answers questions about bed bugs, and says:

ARE BED BUGS DANGEROUS?

Although bed bugs are a nuisance, they are not known to spread disease.

The plaintiff is suing the Milford Plaza and the Pest Control Operator with whom the Milford had a contract (PAC Extermination Services). The Grogans stayed in a room infested with bed bugs that was near two rooms treated for bed bugs less than a month earlier, but which was itself not treated:

Evidence in the case showed that three weeks before the Grogans’ stay, the hotel had asked PAC to exterminate bedbugs in two rooms near the room reserved by the Grogans. Work orders had been issued for rooms 1511 and 1512 on Dec. 22, 2002. The Grogans stayed in room 1540 from Jan. 17 to Jan. 19, 2003.

The Grogans’ argument is backed up by an entomologist’s testimony that bed bugs travel from room to room:

In support of their claims, the Grogans presented the affidavit of an expert in insects who teaches epidemiology and other courses at the University of Alabama School of Medicine.

(It’s worth noting that although bed bugs are not currently known to spread disease, they are still the subject of study by an entomologist who teaches epidemiology in a medical school.)

The entomologist, Robert J. Novak, reported that bedbugs can “easily” migrate from one room to another and that “proper eradication techniques” require inspection of “adjacent or contiguous rooms, or even rooms on several floors above and below” the floor where the pests had been spotted.

With the defendants having offered no affidavit to counter Dr. Novak’s assertions, Gische wrote, the Grogans had presented enough evidence that the hotel had “constructive notice” of the need to fumigate room 1540 to deny the defendants’ motion for summary judgment.

The case must go to trial, Gische ruled, because Novak’s affidavit “set forth genuine issues of fact about the life span of bedbugs, how they migrate and whether these factors should have been (or were) taken into consideration by the defendants in how rooms were treated following bedbug complaints by other guests.”

Even more interesting, this case may have ramifications for the ways PCOs treat for bed bugs.

PAC Extermination Services had argued that it should be released from the case because its obligations were limited to completing work in specifics rooms the hotel had asked to be fumigate.

But Gische said a jury must decide whether the exterminator’s duties were so “comprehensive and exclusive” that it had assumed a duty to keep rooms, other than those for which it received work orders, in “a reasonably safe condition.”

We often hear from PCOs who treat buildings that landlords will ask them to treat just the infested room or rooms, and will often refuse to have other adjacent units on the same or other floors inspected. I can only assume that many hotel managers will make the same request.

In such a case, it’s my understanding that PCOs have two choices: refuse the job (knowing some other PCO will be happy to do as the landlord asks), or do the job, knowing it is likely not enough. This is not an easy choice to make, by any means.

Depending on the court’s findings in this case, we may see a change in this. It may mean more PCOs refuse to treat under such circumstances, insisting instead that adjacent and nearby units are inspected and/or treated.

It could also have ramifications for the price of treatment, since it will doubtless lead to more litigation along the same lines.

Mathias v. Accor: an oldie but goodie

hopelessnomo — Sun, 13 May 2007 15:00:03 +0000

If we had a 24-hour bedbug channel, Mathias v. Accor Economy Lodging, Inc. would be our favorite movie of the week, with endlessly looping re-runs on weekends and major holidays.

It’s a juicy, outrageous story complete with scenes of the plaintiff’s lawyer passing a jar of bedbugs to the jurors and damning testimony by a former employee of the defendant.

In fact, it’s difficult to imagine a more righteous bedbug lawsuit.

The events in question happened in 2000, well before Bedbugger and, I hope, well before most of us had bedbugs — but we’ll come back to that.

Burl and Desiree Mathias spent two nights at a Motel 6 in Chicago in November 2000. The welts appeared after the first night. On the second night, Burl Mathias found two bugs, but did not know what they were so “he killed them with a tissue and went to sleep.”

Awaking after 1 a.m., Burl allegedly lifted his sheets and saw numerous bugs scurrying from his body to the sheets and bed. “Horrified, [he] sprang up and discovered the blood-engorged insects crawling about the inside of the bed where he previously lay,” Stamatis [Peter Stamatis, the Mathiases’ attorney] stated. Once the lights were on, the siblings reported seeing bugs on the beds, furniture and walls. They asked to be transferred to another hotel, says their attorney, but were instead moved to a different room on the same floor.

The Mathiases sued and the jury awarded $5,000 in compensatory damages and $186,000 in punitive damages, a total of $191,000 to each sibling.

Accor Economy Lodging and Motel 6 Operating appealed, of course. And we may well be grateful, for now we can enjoy the rest of the story in the brilliant appellate judge’s eminently readable affirming decision:

In 1998, EcoLab, the extermination service that the motel used, discovered bedbugs in several rooms in the motel and recommended that it be hired to spray every room, for which it would charge the motel only $ 500; the motel refused. The next year, bedbugs were again discovered in a room but EcoLab was asked to spray just that room. The motel tried to negotiate “a building sweep [by EcoLab] free of charge,” but, not surprisingly, the negotiation failed. By the spring of 2000, the motel’s manager “started noticing that there were refunds being given by my desk clerks and reports coming back from the guests that there were ticks in the rooms and bugs in the rooms that were biting.” She looked in some of the rooms and discovered bedbugs.

Further incidents of guests being bitten by insects and demanding and receiving refunds led the manager to recommend to her superior in the company that the motel be closed while every room was sprayed, but this was refused.

Anyone care to hazard a guess as to how many bedbugs were in this motel, untreated, uncontrolled, dispersing from room to room for two whole years? How fast does something like this happen? We have a hint, albeit in a different context, from UK entomologist Clive Boase (link is PDF) when he tells us that “[i]n one housing block, infestations spread from room to adjoining room at a rate of about one room per seven weeks, with dispersion taking place primarily along plumbing runs.”

What about the $500 quote to treat the entire hotel? Or what those motel-PCO negotiations must have been like? But wait, almost improbably, there’s more:

The infestation continued and began to reach farcical proportions, as when a guest, after complaining of having been bitten repeatedly by insects while asleep in his room in the hotel was moved to another room only to discover insects there; and within 18 minutes of being moved to a third room he discovered insects in that room as well and had to be moved still again. (Odd that at that point he didn’t flee the motel.) By July, the motel’s management was acknowledging to EcoLab that there was a “major problem with bed bugs” and that all that was being done about it was “chasing them from room to room.” Desk clerks were instructed to call the “bedbugs” “ticks,” apparently on the theory that customers would be less alarmed, though in fact ticks are more dangerous than bedbugs because they spread Lyme Disease and Rocky Mountain Spotted Fever. Rooms that the motel had placed on “Do not rent, bugs in room” status nevertheless were rented.

It was in November that the plaintiffs checked into the motel. They were given Room 504, even though the motel had classified the room as “DO NOT RENT UNTIL TREATED,” and it had not been treated. Indeed, that night 190 of the hotel ’s 191 rooms were occupied, even though a number of them had been placed on the same don’t-rent status as Room 504.

191 rooms, hence the 191K award to each sibling, and what are the odds that poor guy just gave up with the fourth room.

Dark thought? Did hotels take notes on this one and merely do away with their “Do not rent, bugs in room” status codes?

Even darker thought? One of us has bedbugs descended from Room 504. Perhaps a lot of us. It doesn’t take a lot of imagination nor a biblical list of who begat whom to consider how so many bedbugs in so many rooms could leave to so many destinations with their new possibly puzzled, possibly oblivious, plenty of them non-itchy, hosts. How many of us even knew what bedbugs were in 1998-2000? (The proximity of this timeline to the beginning of the resurgence is provocative; perhaps someone with an armchair interest in epidemiological analysis will care to weigh in.)

I really should resist but can’t help noting that Motel 6 is known for its “we’ll leave the light on for you” tag line.

I will further note that the Motel 6 in Chicago where all of this happened is now a shiny Red Roof Inn, same corporate parent, with nary a bedbug complaint on tripadvisor… well, only one mildly suggestive one, anyway.

This Chicago Tribune article discusses the significance of Judge Richard Posner’s decision in the debate over punitive damages. For another appreciation of Judge Posner and this decision, see this Harvard Law Review article (PDF), although it does muse unconvincingly at the end about how businesses like Motel 6 which depend on customers have built-in incentives to protect their reputations and need not be deterred from wrongdoing with the specter of large punitive damages. Judge Posner would probably disagree and indeed noted that “the defendant is investing in developing a reputation intended to deter plaintiffs. It is difficult otherwise to explain the great stubborness with which it has defended this case, making a host of frivolous evidentiary arguments despite the very modest stakes even when the punitive damages awarded by the jury are included.”

By the way, in his decision, Judge Posner said that Motel 6’s “failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.” Bedbug battery. Righteous.

Presidential Towers sold, with free bed bugs! Doctors and bedbugs (again)

nobugsonme — Tue, 06 Mar 2007 06:37:56 +0000

Chicago’s Presidential Towers has been sold for $470 million. This announcement comes only days after the 3 tenants filed a lawsuit against the building, which has four 49-story buildings, and 2,300 residences. It sold for $20 million more than experts expected; I wonder if bed bug homeowners can expect the same value-enhanced effects from an infestation. Remember Curbed reported that Maya Rudolph’s bed bug infested loft was turned around and re-listed fairly swiftly with the new $16,000/mo. rent up $2500 from its pre-bedbug price.

What I especially liked about the ABC report was the newsreel which included news on the lawsuit, as well as wonderful interview-let with a Chicago dermatologist (the article says “skin specialist”):

“I think I have seen a small increase,” said Dr. Clarence Brown, Rush University Medical Center.

Dr. Brown, a skin specialist, said that those who have been bittern have itchy swollen bites for days, especially along their veins. Many people have trouble understanding it’s bedbugs.

“They’re confused, actually, why do I have this rash? It itches so much. Where did it come from? They are skeptical when you convey that you are convinced that this is actually insect bites and that bedbugs might be one of the possibilities,” said Dr. Brown.

Yes folks, contrary to what many Bedbuggers have experienced (i.e. doctors who insist we don’t have bed bugs), this doctor has trouble convincing his clients that they do. I guess that’s progress.

I know Jess has a few things to say about the goings-on in Chicago, so I’ll hand over to her.