Edward Higgins, the defense lawyer, tried to kill the suit, claiming it’s impossible to know how and when bed bugs arrived in the home, but the judge did not dismiss the civil suit:

Circuit Judge John McBain said there’s no evidence the YMCA camp knew of the blood-sucking insects in 2005, but a jury or judge could decide whether officials should have suspected bugs and used routine pest control.

Higgins’ response?

“No one in the Midwest had a clue there were bedbugs here,” Higgins said. “Most people thought it was the subject of a nursery rhyme.”

The bed bug blame game is a difficult one to win, as Higgins knows. In most cases, we have to admit a lack of definitive evidence as to the source of an infestation.

On the other hand, whatever the climate in 2005, the days of denying responsibility because you never heard of bed bugs in your area are now kaput.

Nevertheless, detecting bed bugs is no picnic even when you are aware, as many Bedbuggers will attest.

And it is true that you have to be aware in order to detect them. Still, the article asserts that

While bedbug population has been on the rise in the United States in the last five years, it is not true that no one in the Midwest knew of their existence before that.

“Bedbugs and people have been together since we lived in caves,” Michigan State University entomologist Howard Russell said.

Bed bugs have been here all along: we keep hearing this. Many entomologists and PCOs will assert they saw bed bugs (albeit more rarely) throughout the golden years of 1972-1999 (after DDT was banned in the US but before the current epidemic “began”). And yet others date the resurgence of bed bugs to circa 1999.

On the other hand, Russell does not see a clear link in the YMCA infestation and the home infestation:

“I would argue it was a coincidence because bedbug populations are on the rise, and there are many sources,” Russell said. Also, only DNA testing could prove the bugs hitched a ride from Storer Camp to the plaintiff’s house, he said.

Now, about that DNA testing: does he mean testing the home bed bug’s DNA (against that of the bed bugs found at the camp?) Or does he mean testing the client’s DNA being compared with that found in blood eaten by bed bugs at camp? Even if it’s proven that the bed bugs at camp and the bed bugs at home are from the same strain, or bit the same boy, how would either test prove definitively that bed bugs did not travel in the other direction?

Yes, I know a lot of readers will be really frustrated with me. Of course he got bed bugs from the camp, people will say. The same way that when someone first notices bed bug bites after a trip to a hotel, or the purchase of a new mattress (delivered in a truck), they will assume they know the source of bed bugs. And make no mistake, these are all probable sources. But it is also true in these cases that bed bugs could have been present in the home–undetected–before the incident in question.

That’s why the blame game doesn’t usually work.

I’m not a lawyer, but it seems like more than probability is needed to win a lawsuit.*  Perhaps that kind of evidence is available to the judge and jury.

Not enough information is available from the article to call this a coincidence, nor to place blame. We don’t know what the kid saw or experienced at camp vs. at home. We don’t know if he was bitten at home first, or at camp. And even if we did, this moment (the first bite) is often hard or impossible to identify: it appears you can be bitten for months without reacting. People sometimes report a large number of bites appearing at once after many bites not causing an immediate reaction; entomologists who feed bed bugs have reported this occurrence.

Because bed bug bites are allergic reactions, and vary so widely, it is very hard to say when the cause is introduced, or removed.

*Update (3/10/2008):  a reader who happens to be a lawyer responded to my comment above that, “I’m not a lawyer, but it seems like more than probability is needed to win a lawsuit.”

Actually, the standard for a civil case is
“preponderance of the evidence” — more probable than
not — basically more than a 50% chance.

http://www.answers.com/topic/preponderance-of-evidence?cat=biz-fin

Thank you, anonymous lawyer, for that correction.

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A couple selling a New York City apartment had bed bugs six months ago. They have not noticed any problem since. So the question is, do they need to disclose that the property they’re selling had bed bugs recently?

Jay Romano answers that the Property Condition Disclosure Act–requiring a seller to fill out a detailed disclosure statement–doesn’t apply to co-op or condo sales.  (Romano consulted Edward I. Sumber, a White Plains lawyer.)

What does apply to apartment owners, however, is common law, which has been established through judicial rulings over the centuries. “Under the doctrine of caveat emptor — let the buyer beware — the seller has no affirmative obligation to reveal circumstances about the apartment to the buyer,” Mr. Sumber said.

But he added that if a prospective buyer asks a specific question about whether the apartment has had bedbugs, the seller has an obligation to answer honestly.

The lesson is if you are buying a NYC condo or co-op, ask if it has or ever had bed bugs.

And, your broker may also be liable:

In addition, if the real estate broker knows about the bedbug problem, he or she has an obligation to reveal it to a prospective buyer. “The broker is under an affirmative duty to be diligent,” Mr. Sumber said. “But the seller is not required to tell the broker, either.”

House buyers are afforded more protection. Sellers of houses have to answer a 48-question disclosure statement and give it to the buyer.

One of the questions asks whether there has been any pest infestation in the house.

But non-scrupulous house sellers need only take a $500 hit to avoid this kind of disclosure:

The penalty for failing to provide the form is a $500 credit to the buyer.

Sellers, apparently, can simply take the loss and skip disclosure. That’s bad news.

All in all, it appears that people can get around disclosing they have had bed bugs in their home (even, apparently, if the infestation is more recent or active) whether it’s an apartment or house. This is very bad news.

Bedbugger hopes that everyone selling a home will be responsible and make sure they are bed bug-free before selling. We also hope apartment and house buyers will have homes professionally inspected, perhaps with the aid of both a PCO and a bed bug dog, before purchase.

You can read Romano’s full article in the New York Times (1/20/08) here. 

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