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Brin v. S.E.W. Investors

July 13, 2006

MARLA BRIN, APPELLANT,
v.
S.E.W. INVESTORS, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA-7615-98) (Hon. Cheryl M. Long, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Argued December 14, 2004

Before REID and GLICKMAN, Associate Judges, and STEADMAN, Senior Judge.

Appellant Marla Brin filed a complaint against S.E.W. Investors and five other appellees*fn1 seeking damages for injuries allegedly incurred as a result of the defective air quality in the building in which she worked.

The trial court granted judgment in favor of appellees on the ground that the law suit was barred by the statute of limitations. We hold, contrary to the view of the trial court, that under the discovery rule, the statute of limitations did not begin to run in this case until Brin received, or with the exercise of due diligence could have received, expert medical advice that the defective air quality was a plausible cause of her injuries. Accordingly, we reverse and remand for further proceedings.

I. Facts*fn2

Marla Brin ("Brin") began working for the Environmental Protection Agency ("EPA") on February 26, 1990, as an attorney/advisor. During the tenure of her employment with the EPA, Brin's office was located at Waterside Mall ("Waterside"), a property owned and managed by SEW. The day after she started work, Brin developed a rash and hives and her eyes twitched and burned. In the following months, she experienced difficulty in concentrating on her work and began to feel fatigued.

The conditions of the Waterside building shortly before Brin began working there were recounted by us in Bahura v. S.E.W. Investors, 754 A.2d 928 (D.C. 2000), a case brought by a group of six representative plaintiffs who were EPA employees in the building.*fn3 Between 1986 and 1989 the Waterside building had undergone major renovations during which contractors replaced carpeting and ceiling tiles, rebuilt and repainted walls, and installed new office dividers.

Soon after the renovations began, substantial numbers of EPA employees began to report health problems that they attributed to the defective quality of the indoor air at Waterside Mall . . . . [T]he nurse in charge of the EPA health clinic[] testified that over 225 employees came to the clinic complaining of "headache, nasal congestion, hoarseness, . . . burning eyes, watering eyes[,] mental confusion, blurred vision, [and] tingling of the fingers." [The EPA nurse] stated that some patients were so ill that she found it necessary to escort them out of the building, but noted that with exposure to fresh air "[t]he symptoms would start to disappear, [and] the employee would get much better. Sometimes the symptoms would completely disappear."

In 1988, the agency commissioned a survey which was designated to ascertain the extent of neurological symptoms (sometimes called "sickbuilding syndrome") among employees at the Waterside Mall. Over 80% of the employees responded. One half of the respondents reported unusual fatigue, 41% had difficulty concentrating, 61% often or sometimes suffered from headaches, and significant numbers reported other neurological symptoms.

Id.

The defective air quality conditions complained of in Bahura were still present when Brin began working at Waterside in February 1990. During another renovation project in March 1990, the air quality was poor and particles such as soot and ceiling matter were knocked onto employee desks in the corridor. The smell of fumes from roofing materials and fumes from a dry cleaning store beneath Brin's office were frequently detectable, as was the presence of mold. In an effort to express her concerns about the conditions of Waterside and the risk of being exposed to chemicals, Brin wrote to the EPA Administrator, William Reilly, shortly after beginning work in her new job, urging that he move the EPA to a new building. In her letter, Brin wrote that she had "been informed that there are problems with this building, and that our new building will not be available until 1995." In response to Brin's letter to Reilly, Charles Bresler, President of Town Center Management Corp., wrote to Brin insisting that she provide proof of her accusations that the Waterside environment was unhealthy. He also warned Brin that the statements in her letter, if untrue, "could be libelous and defamatory." Brin perceived Bresler's letter to be a threat to bring a defamation suit if she blamed Waterside for health problems without presenting proof of a causal relationship between her ailments and the conditions at Waterside. Brin declined to pursue the matter further until she had solid proof.

In the spring of 1992, Brin became aware that she might be ill because she began to sustain muscle injuries during normal acts of exertion and began experiencing unusual fatigue. She met with Dr. Dawn Reed Jones on July 21, 1992, and gave a history of multiple insect bites while gardening. Dr. Reed Jones tested Brin for Lyme disease and the results were negative. Per Dr. Reed Jones's referral, Brin met with Dr. Joseph Laukaitis on July 31, 1992 for a rheumatologic consultation. Brin complained of muscle pain, cramping, tightness, fatigue, difficulty sleeping, eczema, frequent hives, and photosensitivity. Dr. Laukaitis noted that the [e]tiology of [Brin's] muscuskeletal pain is not clear. However, some of the more diffused pain involving her neck and upper back, together with multiple tender points and a recent history of increasing fatigue and poor sleep suggests a diagnosis of fibromyalgia.*fn4 Her chronic calf muscle pain may be due to straining from new shoes or from her rollerblading. This may become more clear as we initiate treatment for the fibromyalgia.

In the fall of 1992, Brin went on a part-time work detail at the Department of Health and Human Services ("HHS") because she suspected that her ailments might have something to do with the conditions at Waterside. Brin's part-time detail at HHS ended in April 1993, whereupon she returned to Waterside; she had not recovered from her pain, weakness, and fatigue. On May 17, 1993, Brin met with Dr. Robert Gerwin for the first time since 1989*fn5 for a neurological consultation because she was experiencing multiple health ailments, including extreme weakness, clumsiness, poor balance, blurry vision, and headaches. Dr. Gerwin suggested that Brin undergo an MRI scan of her brain to check for a demyelinating disease.*fn6 Brin did undergo an MRI scan, but it showed no evidence of multiple sclerosis. In August 1994, Brin met with Dr. Gerwin again because she was experiencing problems with walking, seeing, speaking, comprehending reading materials, thinking, and remembering. Brin informed Dr. Gerwin that she was concerned that she may have been exposed to toxins while at work.*fn7 Brin underwent another MRI scan to check for another condition, but the results were normal. Dr. Gerwin referred Brin for neuropsychological testing.

In October 1994, Brin underwent psychological testing per Dr. Gerwin's referral. In recounting Brin's medical history, the examiner wrote that Brin had been "[e]xposed to solvents at the EPA office building (Waterside)." The examiner also wrote, "Patient complains of problems with short term memory, has difficulty finding words . . . during conversation, is easily confused[,] and has difficulty reading." The results of that examination revealed some neuropathy, nerve injury, diminished sensation, and sensory dysfunction. In a neuropsychological evaluation conducted by Dr. John M. Smothers on December 10, 1994, he wrote:

[Brin] believes that her employers exposed her to gasses and solvents in a "sick building." Therefore, she is unable to remember events clearly. She list gasses and fumes that could come from laser printers, from the "carpeting" which covers room dividers, as possible contaminants. She states the office building in which she works had poor ventilation. [Brin] also states that she was in an automobile accident. She reports that she "smashed" her head on the passenger's window side, and said she lost consciousness. [She] did not say how long she was unconscious. [Brin] also says that she may be experiencing a demyelinating disease. Dr. Smothers concluded that Brin was "organically intellectually impaired."

On December 14, 1994, Brin met with neurologist Dr. Peter G. Bernard because she had difficulty walking, memory problems, neck pains, and loss of motor control. She informed Dr. Bernard that "she believes her employer exposed her to gasses and solvents in a 'sick building' and that she is unable to remember events clearly." She also informed Dr. Bernard that she experienced trauma in the past when she was involved in a car accident. Dr. Bernard concluded that Brin might be suffering from an unknown neurologic disease.

In February 1995, Dr. Gerwin referred Brin to Dr. Jack Griffin because Brin had a difficult condition for which Dr. Gerwin did not have a diagnosis. In his referral letter to Dr. Griffin, Dr. Gerwin wrote:

[Brin] reports that she was in a "sick building" and that environmental toxins were identified. She states that the area that she works in has the highest concentration of these materials in the air. She also states that a number of other people were disabled because of cognitive dysfunction following the exposure to essentially the same degree that she had an[d] that they won their case in court. She has a list of such toxins that were identified and will bring some of the major elements of the court transcript a[s] it bears on the problem for our review.*fn8

In April 1995, Dr. Gerwin prepared a statement in connection with Brin's application for disability retirement. In recounting Brin's history, Dr. Gerwin wrote that Brin had been in an automobile accident in which she hit her head on a windshield, and "may have been exposed to neurotoxic substances such as benzene, toluene, and phenolics." Brin completed her disability application in June 1995. In response to a question on the application asking the approximate date of her disability, Brin replied, "I began declining in the summer of 92, was borderline in 93, and useless in 94." In August 1995, Brin was awarded Social Security Disability and was retired two months later from the EPA on disability.

In May 1995, Brin saw another neurologist, Dr. Charlene Macko, who concluded that there was no consistent evidence of clinical neuropathy or a demyelinating disorder. With respect to Brin's social history, Dr. Macko wrote:

[Brin] reports exposure to high tension power lines. Five people on her block were diagnosed with leukemia including four children and adults. She has also worked in a "[s]ick building" where there have been environmental toxins identified and she works in the area with the highest concentration of these materials. We do not have a list of the chemicals at this point.

On August 14, 1995, Brin was seen by Dr. Leslie Huszar, complaining of, inter alia, weakness, fatigue, comprehension, memory loss, and difficulty walking. Dr. Huszar conducted a neurological examination on Brin and noted that she showed signs of asymmetric peripheral neuropathy. Dr. Huszar wrote that although Brin suspects that she was exposed to solvents, "she does not know how and why her symptoms started."*fn9

Brin visited Dr. Gerwin again in August 1995, continuing to complain of having difficulty with thinking, concentrating, and remembering. As to a possible ...


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