Suffolk County Jury Returns Favorable Verdict in Chlordane Contamination Case
February 11, 2002

Ohrenstein & Brown recently obtained a favorable verdict in a complex toxic tort case venued in Suffolk County. The case involved extensive property damage claims, as well as allegations of psychiatric injuries requiring years of psychotherapy as the result of cancer phobia. After an extended trial involving 12 experts, Ohrenstein & Brown obtained a nominal verdict, which coincidentally was the same amount which had been offered on behalf of the defendants prior to trial.

In Estelle & Robert Bernstein v. Martha Liguori as Executrix of the Estate of Thomas G. Liguori, deceased, d/b/a American Termite Control Co. and Harder Corporation d/b/a American Termite Control (13700/87), a Suffolk County jury returned a unanimous verdict awarding the plaintiff a total of $350,000, 50% of which was apportioned to Velsicol Chemical Corporation (which had previously settled with plaintiffs for $175,000). Plaintiff asked the jury to award $1.6 million. The last settlement demand was $500,000. Ohrenstein & Brown obtained the case in March 2001, after the case was on the trial calendar.

Prior to the jury trial, a bench trial took place to determine whether Harder Corporation, which purchased American Termite's assets in 1983 was a successor in liability to American Termite. The court determined that Harder was in fact a successor to American Termite, and as such, the jury trial went forward with both American Termite and Harder as defendants.

Plaintiffs alleged that American Termite misapplied chlordane to their home in 1979, 1981, and 1982, causing contamination of the home and all of the furnishings and personal items therein. Mr. Bernstein did not witness any of these applications, although Mrs. Bernstein claimed that she was present when an American Termite employee broadcast sprayed the chlordane in their basement as well as in several rooms on the ground floor in 1981 and 1982. The 1979 application took place immediately prior to plaintiffs' purchase of the house, as such, neither of the plaintiffs had any information as to what was done by American Termite on this visit. Plaintiffs alleged that these misapplications necessitated complete demolition of the home and disposal of all debris and contents pursuant to E.P.A. Hazardous Waste Guidelines.

Mrs. Bernstein alleged that she became violently ill after both the 1981 and 1982 applications, yet never reported this to American Termite nor questioned what was used in her home until she read a newspaper article about the dangers of chlordane. She requested that several government agencies (including New York State D.E.C. and Suffolk County Department of Health) as well as private companies (including Kemron, Home Pesticide Testing Labs, and New York Testing Labs) conduct chlordane level testing in her home. Based upon these tests, most of which showed chlordane levels in excess of the recommended 5.0 mg/m3, Mrs. Bernstein deduced that American Termite was responsible and must have used chlordane.

Mrs. Bernstein produced a laundry list of personal items and furnishings allegedly valued in excess of $200,000, which she claims were contaminated as the result of American Termite's actions. In plaintiffs alleged that they were relegated to use of a trailer on their premises for 4 years while attempts to remediate the contamination were made. Otherwise, plaintiff's alleged $270,000 in loss of use of the premises from 1988 (the date they ceased to use the home) to the present, over $500,000 in demolition and hazardous waste disposal costs, over $50,000 in landscaping damages, over $350,000 to rebuild the home. Mrs. Bernstein alleged extensive psychiatric treatment as the result of her fear of contracting cancer due to chlordane exposure, although the defense was successful in getting this portion of her claim dismissed during the course of the trial.

After Mrs. Bernstein testified that her husband was no longer on the deed of the house, we successfully moved to dismiss the claims of Robert Bernstein. Plaintiff's utilized nine experts in support of their claims, including a toxicologist, a real estate appraiser, a personal property appraiser, a contractor, a landscape design specialist, a regulatory expert, two engineers, and an architect. Plaintiff's experts essentially alleged that the Bernstein home contained chlordane levels well in excess of those considered safe for habitation, and that the only way to remedy the condition would be to demolish the house and incinerate all debris. Plaintiff's expert toxicologist further concluded that, based upon testing he performed at the home, that American Termite's misapplication of chlordane was the proximate cause of these damages. Plaintiff's regulatory expert testified that the Velsicol label on chlordane was written in accordance with E.P.A. Guidelines, and thus "the label was the law". He concluded that chlordane was never meant to be applied inside the home, but should have been buried in a trench outside the foundation.

At trial, defendants attacked Mrs. Bernstein's credibility, citing numerous inconsistencies between her deposition testimony and testimony she gave at trial, as well as showing that her claims of property damage were exaggerated. Defendants also cross-examined plaintiff's experts to show that plaintiff's toxicologist only conducted testing in areas of the home where he was instructed to test by Mrs. Bernstein and that the levels of chlordane contamination he found were not truly representative of the residual chlordane levels in the house. Moreover, defendants obtained an admission from plaintiff's regulatory expert that the Velsicol label did in fact indicate that chlordane could be applied inside the house, and as such, if American Termite applied it in that fashion, it would be in accordance with the label. Further admissions were extracted from plaintiff's other experts concerning the extent of damages each of them alleged, and that these were in fact based on assumptions which may or may not be representative of actual damages.

In further defense of plaintiff's claims, Ohrenstein & Brown called three experts, including a toxicologist, a scientific engineer, and an environmental contractor. These experts testified that the testing conducted on the Bernstein premises did not prove that American Termite misapplied chlordane, although they agreed that the house was contaminated. The defense experts worked together as a team to formulate a remediation plan which involved taking the house down to a shell, decontaminating all non porous items, and covering the interior walls of the home with a polymer. This plan required less than 1/3 the cost of the plan proposed by plaintiff's experts.

Prior to trial, plaintiff's counsel demanded $1 million. American Termite had offered $150,000 prior to trial, and Harder Corporation offered $25,000.During summations, plaintiff's counsel asked the jury to award $1.6 million.

After two weeks of trial, the jury deliberated for approximately six hours and returned a verdict of $350,000 apportioning liability 50/50 between American Termite and Velsicol. As such, plaintiff went through the expense of a trial, only to be awarded the same amount which had been offered to her for over 10 months prior to trial.

(Prior results do not guarantee a similar outcome.)