A Toronto man has filed a civil suit against the Howard Johnson Hotel on Ellice Avenue alleging he caught a case of the bed bugs while rooming at the establishment.

Steven Lipson claims after a one-night stay at the hotel in January 2007 he developed welts and itchiness. Lipson alleges a dermatologist confirmed he was bitten by bed bugs. He is suing the Howard Johnson for damages claiming he suffered pain, embarrassment, and permanent scarring.

There isn’t much to chew on there, but we don’t often hear about Canadian bed bug lawsuits, so it does feel quite newsworthy.

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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.

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Above the Law claims,

1. An email was sent around Cravath last week about the presence of bed bugs at the firm.
2. A few bedbugs were found on two floors, the 21st floor and the 41st floor, which are being fumigated.
3. Two employees had bedbugs in their apartments and told the firm, which caused the firm to investigate.
4. The 21st floor is a paralegal / administration floor, but the 41st floor is a litigation floor — which means that one of the two employees may be a lawyer.
6. Both of the employees are still with the firm (i.e., they have not been fired, like the poor soul at Cadwalader who, rumor has it, got canned after self-reporting).
7. The email about the bed bug problem was protected against forwarding or copying.

Apparently ATL did not do so well at math, as they left out #5. (I bet they billed for it anyway!)

But we’ll forgive them, since this is pretty juicy stuff they’re dishing.

Anyway, I would not blame those in the NYC legal profession for getting a bit nervous, seeing two of their bright stars come down with bed bugs. But let’s face it: any type of workplace or residence can become home to bed bugs.

Educating employees on what to watch out for, at home and at work, would be a good idea.

Here’s a hint: developing a workplace policy that says people who tell you they have bed bugs at home won’t get sacked might mean employees are more forthcoming.

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Richard Jebb of Nashua, New Hampshire, is suing his rooming-house, having had nine treatments in his room and still suffering from bed bugs, according to the Nashua Telegraph.

 On Tuesday, Jebb took his bug problem to Nashua District Court, suing his landlord, Mark Flint, and the owners of the building, 23-25 Temple Street Realty LLC, for interrupting the “quiet enjoyment” of his property by not eradicating the problem in a timely fashion.

The company faces a $1,000 a day penalty for every day of the violation, about $240,000 if it is proven the company was in violation of the law in June.

Sixteen units inspected showed signs of bed bugs earlier this month.

The bugs only come out at night, he said, remarking that tenants in the building talk about seeing the bugs on their television screens late at night, something he said he recently experienced.

It’s not uncommon, especially in SROs, rooming houses, and other low-income housing, that tenants are afraid to (or don’t know how to) demand help with the problem.

Although many tenants in the building are suffering with the problem, Jebb said not all of them are willing to speak up about it.

Thank goodness Jebb was willing to go to bat:

It is partly for the “little guy” that Jebb said he decided to put his rent money in escrow and fight the issue in court.

“If that’s what it takes to get this building under control for all these people.”

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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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Here she tells the story, and asks a few questions of attorney Steven De Castro (who’s been involved with bed bug lawsuits) and local entomologist/ Bedbugger hero Lou Sorkin. She talks about the signs and symptoms of bed bugs, but not really any suggestions about what to do to avoid taking them home.

If you recall, in September 2006, NY1 covered the city council hearing in New York (on bed bugs and the reselling of mattresses). They illustrated the opening with a nice, big photo of a dust mite. The segment below occurred within six months of that incident (I don’t know exactly when, but it was uploaded to YouTube in February). Suffice it to say, they’ve come a long way in those six months.

(I am not sure how we missed this when it aired, but it’s new to us, and maybe to you too!)

If the embedded video won’t work for you, click here.

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Vornado-owned Hotel Pennsylvania has agreed to pay nearly $100,000, court records show, to a group of six tourists who claimed to have been bitten by bedbugs while staying at the old Seventh Avenue lodge.

You can read the rest here: Hotel Pennsylvania Settles Bedbug Suits for Nearly $100,000 | The New York Observer

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(The following is not really bed bug news, but a reminder of a time not long ago when encountering a bed bug in a place of business was a bit like finding a hair in your salad, but maybe more common.)

(These last two are not really bed bug stories, but they tell us something about how widely known bed bugs are becoming: they’re starting to mean something in popular parlance once again.)

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